Berkley D. Sells

The plaintiffs in a proposed class action regarding a data breach brought motions to compel answers to questions refused on cross-examinations of two affiants and an omnibus motion to strike out various affidavits, factum paragraphs, and a sealing motion.

The court dismissed the refusals motions, finding the questions asked were beyond the narrow scope of the underlying motions (an injunction motion and a sealing motion) and were properly refused.

The court also dismissed the omnibus motion, finding no reason to strike the evidence or alter the timetable for the upcoming jurisdiction and certification motions.

The applicant, a 30% shareholder, brought an application for oppression against the respondent corporation and its sole director.

The director failed to produce audited financial statements, breached multiple court orders, and misappropriated millions in corporate funds for personal use.

The court found the director's conduct to be oppressive and imposed personal liability.

A receiver was appointed, and the court set a rough buyout value for the applicant's shares at $3,993,750, giving the parties options to accept the valuation or have the receiver conduct a formal valuation.

The plaintiffs brought a motion for approval of a proposed settlement in a certified class action regarding a mass termination without notice or severance pay.

The employer had gone bankrupt, leaving the plaintiffs to pursue the directors and officers and their liability insurance policy.

After complex litigation and negotiations regarding the depletion of the insurance policy, a settlement was reached for approximately $1.77 million.

The court found the settlement to be fair, reasonable, and in the best interests of the class, providing significant recovery where there was high risk of none.

The court also approved class counsel's fee request of one-third of the settlement amount, noting the high risk undertaken and the excellent result achieved.

The appellant appealed the dismissal of his 2012 claim, which the motion judge found was res judicata and an abuse of process due to a 2006 settlement and release.

The Court of Appeal agreed, holding that any new claims post-dating the 2006 settlement must be brought in a new statement of claim.

The Court also granted leave to appeal the motion judge's substantial indemnity costs order but dismissed the costs appeal, awarding the respondents $20,000 in costs for the appeal.

The moving party sought leave to appeal an order dismissing an appeal from a Master's decision requiring a non-party witness to answer questions on a refusals motion.

The underlying motion sought to hold the moving party liable for a judgment against dissolved corporations under the Business Corporations Act.

The court dismissed the motion for leave to appeal, finding that while there was some doubt about the relevance of certain questions, the moving party failed to demonstrate that the proposed appeal raised an issue of general importance transcending the interests of the parties.

Two shareholders of a hotel holding company each sought oppression relief following a complete breakdown in their business relationship.

The court had previously found that neither party validly invoked the buy‑sell clause in the shareholders’ agreement and that the parties could no longer operate the business together.

The issue was the appropriate court‑ordered mechanism to separate the shareholders.

The court ordered an independent valuation of the holding company and directed the majority shareholder to purchase the minority shareholder’s interest without a minority discount, together with repayment of the minority shareholder’s loan plus interest calculated under the shareholders’ agreement.

Costs were awarded to the majority shareholder as the substantially successful party.

The plaintiff sought costs on a partial indemnity basis following the dismissal of the defendants' motion for leave to appeal an interlocutory injunction.

The plaintiff claimed $45,391.40 inclusive of GST and disbursements, while the defendants argued $25,000 was fair and reasonable.

The court noted that much of the work had already been prepared for the original injunction motion.

Applying Rule 57.01(1), the court fixed costs at $28,627.40, payable jointly and severally by the defendants.

Following a successful appeal, the Court of Appeal reviewed costs submissions regarding the proceedings below.

The court ordered the respondent to pay the successful appellant $5,000, inclusive of disbursements and GST, for the costs of the proceedings below.

The plaintiffs contracted with the defendants to build a custom home, which included finishing 1000 square feet of the basement.

The defendants finished an additional 570 square feet, which they claimed the plaintiffs orally requested.

The plaintiffs paid the extra cost under protest on closing and successfully sued in Small Claims Court to recover the funds.

The trial judge found the defendants' witnesses credible regarding the oral request but ruled in the plaintiffs' favour based on an entire agreement clause in the written contract.

On appeal, the Divisional Court set aside the trial judgment, holding that the trial judge erred in law by failing to apply the two-stage analysis from Shelanu.

The Court found that the entire agreement clause did not apply to a subsequent oral agreement, and even if it did, it would be unconscionable to enforce it given the plaintiffs' knowledge and acquiescence.

The appeal was allowed and the plaintiffs' claim dismissed.

The appellant appealed a summary judgment order dismissing part of his defamation action arising from material posted on the respondent's website.

The motions judge had ruled the internet publication was a 'broadcast' under the Libel and Slander Act, rendering the claim statute-barred for failure to provide timely notice.

The Court of Appeal allowed the appeal, finding a genuine issue for trial regarding whether the internet publication constituted a broadcast from a station in Ontario, particularly given conflicting expert evidence on the nature of internet dissemination.

The Court of Appeal issued a costs endorsement following an appeal and cross-appeal regarding a summary judgment motion.

The respondents successfully had all their claims proceed to trial, as the appellants failed to obtain the dismissal of any claims.

The court awarded the respondents 100 percent of their costs for the motions, fixed at $43,799.70 per appellant, and fixed the costs of the appeal at $50,000 on a partial indemnity basis.

The appellants, former auditors and actuaries of the respondent law society, appealed the dismissal of their motions for summary judgment and to strike the statement of claim.

The respondents had sued for professional negligence, alleging the appellants understated deficits in the professional liability insurance plan.

The appellants argued that even if they were negligent, the respondents suffered no damages because the losses were 'passed on' to members through increased levies.

The motion judge dismissed the appellants' motions and struck the 'passing on' defence, proceeding on the basis of assumed facts.

The Court of Appeal allowed the appeal and cross-appeal, holding that the motion judge erred in deciding hypothetical questions of law based on assumed facts when material facts were in dispute.

The Court concluded that it was not plain and obvious that the 'passing on' defence is unavailable in Canadian law, and ordered the entire action to proceed to trial.