Ben Tustain

This endorsement addresses the costs of a motion for advice and directions brought by a Sales Officer in three oppression remedy applications.

The underlying motion resolved in favour of Doug Middleton, Jason Middleton, and JDM Group Ltd. (the "Middleton parties") against Mark Ber and his affiliates (the "Ber parties"), finding Mark's actions had undermined the Sales Officer's mandate.

The court considered whether Mark's conduct warranted substantial indemnity costs, ultimately concluding it did not meet the threshold for "reprehensible, scandalous or outrageous" behaviour.

The court ordered the Ber parties to pay partial indemnity costs to the Middleton parties and deferred any ruling on the disproportionate allocation of the Sales Officer's costs.

This motion, brought by the court-appointed Sales Officer in consolidated oppression remedy applications, sought directions regarding the inclusion of insurance policies in the sale plan of two closely held companies, Producer’s Planning Group Ltd. and The Benefits Group Inc. The dispute centered on 789 policies (PG Transferred Policies) that had been transferred to Mark Ber's company, The Producer’s Group Ltd. The court addressed two main issues: the ownership of 'PG Originating Policies' and the inclusion of 'PG Orphaned Policies' which clients transferred to Mark Ber's company after he ceased providing services through the original companies.

The court found that the PG Originating Policies were owned by the Planning Group and that Mark Ber improperly caused their transfer.

It also found that the PG Orphaned Policies should be included in the sale plan due to Mark Ber's unilateral actions undermining the court's prior order.

The court dismissed the respondents' request for a trial of issues, affirming its jurisdiction to decide the matter on the written record, consistent with Commercial List practice.

The plaintiffs moved for an order validating service of a notice of libel and slander on the individual defendants.

The court dismissed the motion, finding insufficient evidence that the notice came to the attention of all defendants, particularly two unnamed ones, and that a lawyer's office is not a 'drop box' for service without instructions.

The court also clarified that the onus is on the moving party to prove effective service, not on the responding party to disprove it.

The applicants sought urgent interim relief against a respondent for alleged misappropriation of corporate assets of a company undergoing court-ordered winding-up.

The court addressed jurisdiction, finding the issues had not merged in a prior final order.

While a strong prima facie case for some alleged improper payments was found, the court determined no irreparable harm was established, declining to grant immediate mandatory repayment.

Instead, it clarified rules for future expenses and expanded the Sales Officer's powers to investigate and reconcile the disputed payments as part of the ongoing winding-up process.

This is a costs endorsement for three related applications concerning shareholder rights and oppression remedies in private companies (Producers Planning Group Ltd., The Benefits Group Inc., and Thornbridge Capital Inc.).

The main applications resulted in an order for the sale of businesses and assets of two companies, while claims for oppression remedies were dismissed for all parties.

The court found that all parties had substantial success as respondents in opposing the oppression claims made against them.

Due to the overlapping issues and the divided success, the court ordered no costs for any of the three applications, as the costs of successful respondents would largely offset the costs for which they would be liable as applicants in other applications.

The defendants moved for partial summary judgment to dismiss claims based on the expiry of limitation periods and the alleged non-existence of an oral trust agreement.

The plaintiff opposed, asserting fraudulent concealment and the existence of an oral, resulting, or constructive trust.

The court dismissed the motion, finding that genuine issues requiring a trial existed, particularly concerning the credibility of the parties, the nature of the alleged trust, and the application of limitation periods.

The court emphasized that partial summary judgment would not achieve a faster or cheaper resolution and risked inconsistent findings due to the intertwined factual and credibility disputes.

Three related applications were brought concerning shareholder disputes in three closely held corporations operating as insurance brokerages and an investment holding company.

The applicants sought declarations of oppression and various remedial orders, including share buyouts and winding up.

The court dismissed all claims of oppression, finding no conduct that violated reasonable expectations.

However, the court found that the shareholders of two of the operating companies were hopelessly deadlocked and unable to work together.

Consequently, the court ordered the winding up of those two companies under the just and equitable ground of the Business Corporations Act, while dismissing the request to wind up the investment holding company.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

The plaintiffs, The Calbot Group Ltd. and 2649106 Ontario Inc. cob Synergy Capital, brought two motions: a Preservation Motion seeking to secure $5 million from land sale proceeds and a Jurisdiction Motion against certain foreign defendants.

The court first addressed the Jurisdiction Motion, finding that the plaintiffs failed to establish a real and substantial connection between the foreign defendants (NSR Canada Development Limited, New Silk Road Culturaltainment Ltd., and Sha Huang aka Sam Huang) and Ontario, as the alleged contract (MOU or verbal agreement) was not genuine and the corporate veil could not be pierced.

Consequently, the action against these foreign defendants and Mr. Huang was stayed.

The Preservation Motion, seeking relief under Rule 45.02, a Certificate of Pending Litigation (CPL), or Mareva injunction, was also dismissed.

The court found that the plaintiffs' claim was for damages, not a specific fund, and they failed to demonstrate a serious prospect of success or meet the stringent requirements for such remedies.

Costs were awarded to the successful defendants.

The Court of Appeal for Ontario issued a costs endorsement following an appeal brought by the Debtor, Wayne Biggar.

The Court found that Mr. Biggar's appeal was brought to the wrong court and constituted an obvious delay tactic.

As a result, the Creditors, Jack Pinder, Victor Dusik, and Innotech Safety Solutions Inc., were awarded substantial indemnity costs fixed at $11,500, inclusive of disbursements and applicable taxes, payable by Mr. Biggar within five days.

The respondents (creditors) moved to quash an appeal brought by the appellant (debtor) from a garnishment order, arguing that the order was interlocutory and therefore not appealable to the Court of Appeal.

The Court of Appeal agreed, finding that the garnishment order was an interlocutory step in an ongoing oppression action, not a final disposition of the parties' rights or a discrete proceeding.

Consequently, the Court lacked jurisdiction to hear the appeal, which properly lay with the Divisional Court.

The appeal was quashed.

The plaintiff construction manager brought an action against the defendant developer for unpaid invoices totaling over $1 million.

The defendant counterclaimed for delay damages, costs to rectify deficiencies, and return of construction management fees, alleging the plaintiff failed to perform its contractual obligations.

The court found that the parties had varied the written contract by their conduct and that the plaintiff was not responsible for any of the project delays, which were caused by the defendant's failure to provide a completed design and obtain permits on time.

The court also held that the plaintiff was not liable for construction deficiencies, as those were the responsibility of the trades.

The plaintiff was awarded $644,871.69 for unpaid invoices, with deductions made for overcharges and unproven payments.

The applicant obtained ex-parte Mareva and Norwich orders against his brother and sister-in-law, alleging they mismanaged a jointly owned corporation and breached an oral trust agreement.

The respondents moved to set aside the orders, arguing material non-disclosure and failure to meet the evidentiary threshold.

The court agreed, finding the applicant failed to disclose relevant correspondence and that contradictory evidence precluded a strong prima facie case.

However, given evidence of potential misappropriation, the court ordered a forensic accounting and froze the respondents' real property pending the investigation.