Barbara Conway

The appellant appealed a Small Claims Court judgment finding it liable for breach of contract.

The appellant had ordered shrimp from Panama through the respondent, but the Canadian Food Inspection Agency denied the import permit.

The appellant refused to pay for the shipment, arguing frustration of contract.

The Divisional Court dismissed the appeal, upholding the trial judge's finding that the permit denial was foreseeable and that the appellant, as the importer, bore the responsibility and risk of obtaining approval before placing the order.

The applicant applied to the Ontario Superior Court to recognize a summons issued by a Quebec provincial court for Ontario witnesses to testify via video-link in a Quebec securities trial.

The applicant relied on s. 152(4) of the Ontario Securities Act, the Interprovincial Summonses Act (ISA), and inherent jurisdiction.

The court dismissed the application, finding that s. 152(4) applies to administrative tribunals, not courts.

Furthermore, the ISA prohibits recognizing a summons from a province that lacks an absolute immunity provision, which Quebec does not have.

The court declined to exercise inherent jurisdiction to bypass the statutory immunity requirement.

In a priority dispute following the bankruptcy of a paving company, a bond company argued that funds held by the receiver in a project account were statutory trust funds under the Construction Lien Act and therefore excluded from the bankrupt's estate under s. 67(1)(a) of the Bankruptcy and Insolvency Act.

The court dismissed the trust claim, finding that the funds lacked the certainty of subject matter required to constitute a true common law trust, as they were not identifiable or held separately prior to the receivership.

Consequently, the funds were to be distributed under the BIA scheme.

The Receiver of a bankrupt masonry contractor sought directions to distribute remaining funds to a secured creditor.

A subcontractor opposed the distribution, arguing the funds were subject to a deemed trust under the Construction Lien Act and excluded from the bankruptcy estate.

The court found that the funds did not meet the certainty of subject matter required for a trust under general trust principles, as all funds were commingled in a single account.

The court ordered the funds distributed to the secured creditor.

The appellant, a dental hygienist, was injured when a dental light fell from the ceiling while she was attending to a patient.

She sued the occupier for negligence under the Occupiers' Liability Act.

A jury dismissed the claim, finding the defendant had not failed in its duty to keep the premises reasonably safe.

The appellant appealed, arguing the verdict was perverse and ignored evidence that the defendant had no system for maintaining the structural integrity of the lights.

The Divisional Court dismissed the appeal, holding that the jury's verdict was supported by some evidence, including testimony from the dentist and the serviceman who installed and serviced the equipment, and that the plaintiff failed to prove causation.

The interested parties appealed a motions judge's order requiring them and the garnishee, Vale Canada Limited, to produce contracts and assignment documents for an upcoming garnishment hearing.

The plaintiffs had obtained a default judgment against the defendant and sought to garnish amounts owed by Vale, alleging that the defendant had invalidly assigned its contracts to the interested parties to avoid garnishment.

The Divisional Court dismissed the appeal, finding that the motions judge properly exercised his discretion under Rule 60.08(16) of the Rules of Civil Procedure to order production of documents relevant to determining the rights and liabilities of the parties at the garnishment hearing.

The municipality appealed a motion judge's decision to stay its civil action against the defendants pending the completion of related criminal fraud charges against one of the defendants.

The Divisional Court allowed the appeal, finding the motion judge erred in law by holding that section 7 of the Charter eclipsed the established test requiring extraordinary or exceptional circumstances for a stay.

The court reaffirmed that the burden remains on the moving party to prove exceptional circumstances, and set aside the stay.

The landlord appealed a Landlord and Tenant Board decision which found that rent increases for several cottage leases were void because the landlord failed to provide the required 90 days' notice under the Residential Tenancies Act.

The Divisional Court dismissed the appeal, affirming that the leases were subject to the Act and that the tenants were entitled to a rebate for the excess rent paid in the one year prior to their applications.

The plaintiff appealed an order requiring her to produce a letter sent by an accountant to her lawyer, claiming it was protected by solicitor-client privilege.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's determination that the plaintiff had given a clear, unconditional undertaking during discovery to produce the letter.

Furthermore, the court agreed that the communication did not fall within the specific categories where solicitor-client privilege attaches to third-party communications.

The applicant sought judicial review of two Ontario Labour Relations Board decisions dismissing his complaint that his union breached its duty of fair representation under s. 74 of the Labour Relations Act.

The applicant had been terminated for safety infractions and subsequently retired and began drawing his pension without notifying the union, leading the union to withdraw his grievance.

The Divisional Court applied the reasonableness standard of review and found the Board's decision that the union had not acted arbitrarily was within the range of acceptable outcomes.

The application for judicial review was dismissed.

Look Communications Inc. sued its former director, Gerald McGoey, and his holding company, Jolian Investments Limited, for breach of fiduciary duty.

The claim arose from the board's approval of $20 million in "Contingent Restructuring Awards" (CRAs) to directors, officers, and employees following the sale of the company's primary assets.

The court found that McGoey breached his fiduciary duty by approving excessive CRAs, particularly the equity cancellation payments based on an inflated share price and an unwarranted $2.4 million compensation payment to himself.

The court also found a breach regarding the advancement of legal fees for directors' defense against CRA-related claims.

The court rejected McGoey's defense of reliance on legal advice, as the advice was general and did not cover the quantum or allocation of payments.

The court ordered restitution and imposed a constructive trust over the funds received by McGoey/Jolian.

Following the dismissal of the plaintiffs' oppression action in a family-owned business shareholder dispute, the successful defendants sought partial indemnity costs of $333,872.

The plaintiffs argued the defendants' counsel spent excessive hours and suggested a costs award of $267,098.

The court found the defendants' costs were high but acknowledged the significant resources required to defend the litigation.

Applying the principle that costs must be fair and reasonable for the unsuccessful party to pay, the court fixed costs at $275,000 and declined the defendants' request to deduct the award from the plaintiffs' future dividend payments.

The applicant, Trader Corporation, operating digital marketplaces for vehicles, alleged copyright infringement by the respondent, CarGurus, Inc., a competitor, for posting photos taken by Trader's photographers on its own website.

Trader sought a declaration of infringement, a permanent injunction, and statutory damages.

The court found that Trader owned copyright in 152,532 photos and that CarGurus infringed them.

The fair dealing defence was rejected, and CarGurus was not considered an "information location tool" exempt from statutory damages.

However, the court found that the minimum statutory damages of $500 per photo would be grossly disproportionate and reduced the award to $2 per photo, totaling $305,064.

Requests for punitive damages and a permanent injunction were dismissed.

The plaintiff, a minority shareholder in a closely held family business, sought an oppression remedy under s. 248 of the Ontario Business Corporations Act, requesting a court-ordered sale of her shares to her brothers and the corporate entity.

She argued that the defendants' refusal to purchase her shares, coupled with a lack of a third-party market and irreconcilable differences, constituted oppressive conduct, and also challenged the corporation's dividend policy.

The court dismissed the action, finding that the plaintiff did not have a reasonable expectation of liquidity for her shares, as the shareholders' agreement did not mandate a buyout and her minority interest inherently had limited liquidity.

The court also found no unfairness in the dividend policy, noting the brothers' active roles and separate shareholdings.

The oppression remedy was not designed to provide an exit strategy for a minority shareholder in the absence of actual oppressive or unfair conduct.

This costs endorsement follows a summary judgment decision where HSBC Bank Canada (the Bank) successfully dismissed Kari Holdings Inc.'s (Kari) action.

The Bank sought costs on a partial indemnity basis, arguing for substantial indemnity post-settlement offer.

Kari opposed, citing novel legal issues and undue hardship to its shareholders, or proposed a lower partial indemnity amount.

The court found the Bank was entitled to costs on a partial indemnity basis, rejecting Kari's arguments regarding novelty and shareholder hardship.

The court awarded the Bank $100,000, inclusive, payable within 30 days, considering the complexity, resources expended, and the seriousness of the allegations.

The bankrupts moved for an order to schedule their discharge hearing, notwithstanding an ongoing fraudulent conveyance action by the Royal Bank of Canada (RBC) against them.

The court dismissed the motion, exercising its discretion to adjourn the discharge hearing.

The court found that the outcome of the fraudulent conveyance action could bear on the discharge hearing, there was no evidence of delay by RBC, and the interests of all parties, including creditors and the integrity of the system, needed to be balanced.

The bankrupts were granted leave to reapply if delays or other factors changed the circumstances.

Kari Holdings Inc., a secured creditor, brought a summary judgment motion against HSBC Bank Canada, alleging that HSBC improperly granted overdraft protection to their mutual debtor, C.I.F. Furniture Limited (CIF), and repaid itself using collateral subject to Kari's prior security interest.

Kari sought a declaration of priority and payment of $467,455 for the alleged overdrafts and $57,260 for credit card debt.

HSBC brought a cross-motion for summary judgment dismissing Kari's action.

The court dismissed Kari's motion and granted HSBC's cross-motion, finding that HSBC did not extend credit by way of overdraft and, alternatively, that CIF's repayments were made in the ordinary course of business, which was permitted under Kari's general security agreement.

The City of Toronto brought a motion to quash an appeal by Brookfield from an arbitration award determining the fair market rental for a commercial property.

The court held that under the arbitration agreement and the Arbitration Act, 1991, the parties' appeal rights were limited to questions of law with leave.

The court found that Brookfield's grounds of appeal, which related to valuation theories, lease rates, and contractual interpretation, raised questions of fact or mixed fact and law, not questions of law.

Consequently, the motion to quash the appeal was granted.

The applicant sought recognition of a $22 million arbitral award against the respondent.

The respondent opposed recognition, arguing it would be contrary to Ontario public policy because its counsel in the arbitration had a conflict of interest by providing expert evidence in a separate case that the applicant could indirectly benefit from.

The court rejected this defence, finding that the alleged conflict did not fundamentally offend basic principles of justice and fairness, and granted the order recognizing the award.

Following a trial where the plaintiff university successfully proved that the defendants engaged in fraudulent activities and breached their fiduciary duties, the parties could not agree on costs.

The court awarded the plaintiff full indemnity costs against the primary defendants who orchestrated the fraud, and partial indemnity costs against the defendants involved only in fraudulent conveyances.

No costs were awarded for earlier motions due to divided success.