Arie Gaertner

At a Commercial List case conference, the court addressed procedural issues relating to documentary production, privilege waiver, and the scheduling of discoveries.

The plaintiffs had expressed a desire to bring a motion to strike certain counterclaims, while certain defendants contemplated a motion for a further and better affidavit of documents.

The court declined to schedule those motions, directing instead that the matters be addressed through examinations for discovery and cooperative document production.

Counsel were directed to resolve production issues, exchange documents, and establish a protocol for property inspections to facilitate an expert valuation report.

An Ontario resident brought a proposed securities class action against a U.K. issuer alleging secondary market misrepresentation under Part XXIII.1 of the Securities Act following the Deepwater Horizon oil spill.

The defendant moved to stay the action in part, arguing Ontario lacked jurisdiction over claims of investors who purchased securities on foreign exchanges and that the matter should proceed in U.S. or U.K. courts.

The court held that the statutory cause of action under s. 138.3 constitutes a statutory tort presumptively connected to Ontario where an Ontario investor is deemed to have relied on the misrepresentation.

The legislation did not restrict claims to purchases on Ontario exchanges, and the defendant failed to rebut the presumptive connecting factor.

The court further found the defendant did not establish that foreign courts were clearly more appropriate forums.

A bank sought to recover approximately USD $5.4 million under guarantees related to credit facilities advanced to a UAE construction entity and alleged that settlement proceeds from unrelated international litigation were fraudulently conveyed to affiliated corporations to defeat its claim.

The plaintiff also sought to add numerous additional corporate and individual defendants, rely on the discoverability doctrine and misnomer exceptions to the Limitations Act, and pierce the corporate veil on the basis of a common enterprise among related companies.

The court held that most proposed defendants could not be added because the claims were statute‑barred and the discoverability doctrine did not apply due to the plaintiff’s lack of diligence in identifying corporate entities earlier in the litigation.

Although one entity was permitted to be added due to misnomer, the court found no fraudulent conveyance under the Fraudulent Conveyances Act and declined to pierce the corporate veil, emphasizing the principle of separate corporate personality.

The plaintiff’s claims were dismissed and costs were awarded to the defendants.

Following trial reasons granting judgment to the plaintiffs and dismissing a motion brought by a defendant, the court addressed entitlement and quantum of costs.

Applying rule 24 of the Family Law Rules and s. 131 of the Courts of Justice Act, the court found the successful parties presumptively entitled to costs.

The court concluded that the primary defendant had acted in bad faith through conduct including unfounded allegations of fraud and conspiracy, misleading the court in a Mareva injunction motion, and refusing to comply with a memorandum of understanding.

Substantial indemnity costs were therefore warranted.

The defendants were ordered jointly and severally to pay the plaintiffs and intervenors full recovery amounts for fees and disbursements.

Following a successful application under the Competition Act resulting in restitution orders and administrative monetary penalties against multiple respondents, the applicant sought partial indemnity costs of $231,768.35.

One respondent opposed the request, arguing the matter was over-lawyered, that legal research disbursements should be excluded, and that costs should be apportioned based on the relative administrative monetary penalties imposed.

The court accepted that the proceeding was complex and a matter of first impression requiring extensive investigation and research, but found some duplication of work by counsel.

The court reduced the overall fees by 15% while allowing the legal research disbursement.

Costs were ordered jointly and severally against the respondents.

The plaintiffs sought to enforce a Memorandum of Understanding resolving disputes arising from the breakdown of a common law relationship and corporate control over a property‑holding company.

The defendant argued the MOU was merely a framework for future agreements and that it had been signed under economic duress caused by earlier court orders and the threat of eviction.

The court found the MOU constituted a final and binding settlement agreement, noting the parties’ clear contractual language, extensive negotiations, and the defendant’s subsequent reliance on the agreement.

Allegations that the agreement was procured under duress or that earlier court orders were obtained by fraud were rejected.

The defendant’s motion to set aside prior orders was dismissed and the settlement was enforced.

Following a Divisional Court decision remitting the issue of joint and several liability back to the Tribunal, the Tribunal reconsidered the allocation of a $30,000 damages award for a poisoned work environment and discriminatory termination.

The Tribunal found the corporate principals jointly and severally liable with the corporation for $22,500 of the damages, reflecting their role in the termination and their failure to address the poisoned work environment, while the corporation remained solely liable for the remaining $7,500 attributable to the discriminatory conduct of other agents.

The applicant, a 90-year-old tenant, alleged discrimination on the basis of age after the respondent landlord delivered eviction notices addressed to her son (the leaseholder) directly to her rental unit.

The respondent requested a summary hearing to dismiss the application.

The Tribunal found that while the method of delivering the notices may have been unfair and caused anxiety, the applicant provided no evidence linking the respondent's conduct to her age.

The application was dismissed for having no reasonable prospect of success.

The applicant landlord brought an application for a declaration that the respondent tenant's option to terminate its commercial lease had expired before it was exercised.

The dispute centered on the correct 'Commencement Date' of the lease, which dictated the termination window.

The landlord relied on a registered notice of lease stating the date was October 27, 2005, while the tenant argued the lease terms dictated November 14, 2005.

The court held that the lease's express language established November 14, 2005 as the Commencement Date, and the erroneous notice of lease did not amend the contract.

The court also rejected the landlord's equitable estoppel argument, noting the landlord had actual notice of the lease terms prior to purchasing the property.

The tenant's notice of termination was deemed effective.

The Ontario Human Rights Commission sought judicial review of a Human Rights Tribunal of Ontario decision.

The Tribunal had found that an employee was subjected to a poisoned work environment based on sex and was terminated contrary to the Human Rights Code.

However, the Tribunal only ordered the inoperative corporate employer to pay damages, declining to hold the individual managers and owners jointly and severally liable.

The Divisional Court held that the Tribunal's failure to provide a rational basis for not imposing personal liability on the managers, who had failed to address the poisoned environment and had terminated the employee, was unreasonable.

The matter was remitted to the Tribunal to reconsider the apportionment of joint and several liability.

The complainant, a female real estate agent, alleged she was subjected to a poisoned work environment and terminated on the basis of sex and gender.

She experienced derogatory name-calling, exclusion, and a persistent false sexual rumour involving her manager.

The Tribunal found that the employer failed to reasonably investigate or address her complaints, allowing the poisoned environment to flourish.

The Tribunal concluded that the complainant's gender was a factor in the adverse treatment and that the discriminatory environment contributed to her termination.

The corporate respondent was ordered to pay $30,000 for injury to dignity, feelings, and self-respect.

Claims for lost income and personal liability against individual respondents were dismissed.

The appellants, two Dutch companies, appealed a motion judge's decision dismissing their motion to set aside service ex juris and stay the wrongful dismissal action against them.

The Court of Appeal applied the Van Breda test and found that the Ontario courts had jurisdiction over both foreign defendants.

The court held that the foreign parent company was a necessary and proper party and that the foreign foundation holding the employee's shares had a real and substantial connection to Ontario because it withheld the share sale proceeds to the potential benefit of the North American subsidiaries' counterclaim.

The appeal was dismissed.

The appellant appealed a decision ordering the dissolution of a partnership under s. 35(f) of the Partnerships Act.

The application judge found that the partners had fundamentally different visions for the partnership's future following the loss of their primary medical clinic tenant, and that they had lost the mutual trust and confidence necessary to continue the partnership.

The Court of Appeal dismissed the appeal, holding that the application judge's findings were amply supported by the evidence, including serious allegations of breach of fiduciary duty and misleading the court.

The appellant appealed the dismissal of his professional negligence and breach of fiduciary duty claims against his former law firm, as well as the judgment allowing the firm's counterclaim for fees.

The dispute arose from a $650,000 personal injury settlement, which the appellant argued was supposed to be net of the fees of his four previous lawyers.

The Court of Appeal upheld the trial judge's findings that the appellant's testimony was not credible, that the authority to settle clearly meant net of the respondent's fees only, and that the appellant was fully aware he remained responsible for his prior lawyers' accounts.

The appeal was dismissed.

The appellant sued for wrongful dismissal after his employment was terminated.

The trial judge concluded that the appellant was employed under a fixed-term contract and was terminated in accordance with its terms.

On appeal, the appellant argued the employment relationship was of indefinite duration.

The Court of Appeal dismissed the appeal, finding the written contracts were clear and unequivocal, and the appellant understood his employment was speculative and could be terminated on a moment's notice.

The appellant insurer appealed a trial judgment finding it liable under an errors and omissions policy, arguing the insured's conduct fell within the 'intentional wrongful act' exemption.

The Court of Appeal dismissed the appeal, holding that the exemption applies to intentional torts, not deliberate acts of negligence, and upheld the trial judge's finding that the insured did not intend economic harm.

The Court also rejected the appellant's argument that prejudgment interest should run from the date of the current action rather than the underlying action, as the policy obligated the payment of interest from the commencement of the underlying action.

The appellant insurer appealed from summary judgment granted in favour of a bankruptcy trustee under an errors and omissions policy issued to the bankrupt insured.

The court held there were genuine issues for trial regarding the insured's state of mind when placing insurance with an unregistered offshore insurer and regarding whether the policy extended coverage although the insured was not a registered insurance broker.

Because the exclusion clause turned on whether the insured committed an intentional wrongful act, error or omission, the evidentiary record was insufficient to justify summary judgment.

The appeal was allowed, the summary judgment was set aside, and the action was directed to proceed to trial.