Brian Kolenda

This is an appeal from a summary judgment dismissing the appellants' action as statute-barred.

The appellants, a former employee and his investment corporation, sued the respondents for breach of a post-retirement compensation agreement, claiming a permanent 3% interest in a partnership.

The motion judge found the claims statute-barred under the Limitations Act, 2002, ruling that a single breach with continuing consequences occurred, not a series of breaches giving rise to a rolling limitation period.

The motion judge also found the request for declaratory relief was, in substance, a claim for compensatory relief and therefore also statute-barred.

The Court of Appeal upheld the motion judge's decision, dismissing the appeal.

Zurich, the surety for the insolvent general contractor Bondfield, brought a motion to intervene as a party in a construction lien reference.

Zurich sought to participate in a vetting committee for the distribution of the owner's holdback among the timely lien claimants.

The court granted the motion, finding that Zurich had a direct interest in the holdback because it had made significant holdback advances to the major electrical and mechanical trades and had taken partial assignments of their lien rights.

The court ordered the timely claimants to pay Zurich's costs of $30,000.

The appellants, The Bank of New York Mellon Corporation and CIBC Mellon Global Securities Services Company, sought an order staying a lower court judgment pending appeal.

They argued that the application judge's amendments to his reasons for judgment created a reasonable apprehension of bias.

The motion judge, Lauwers J.A., dismissed the motion, finding that the appellants failed to demonstrate a real likelihood or probability of bias.

The court applied the three-part test for a stay (serious issue, irreparable harm, balance of convenience) and the overarching interests of justice, concluding that a stay was not warranted.

Leave was granted to file a Supplementary Notice of Appeal.

The Respondents brought a motion seeking the recusal of the presiding judge and a declaration of mistrial, alleging a reasonable apprehension of bias.

The allegations stemmed from the judge's conduct and rulings in three prior decisions related to the ongoing application, specifically claiming predisposition towards the Applicant, disparagement of the Respondents, and insinuation into the appeal process.

The Court dismissed the motion, finding that, when viewed realistically and in full context, the judge's actions did not give rise to a reasonable apprehension of bias.

The decision emphasized that adverse rulings, even if potentially erroneous, do not equate to bias and should be addressed through the appeal process.

Costs were awarded to the Applicant.

The applicant sought to vary a previous judgment regarding contract beneficiaries and liability for knowing receipt.

The court declined to change the finding on beneficiaries (para 19) as it was an intentional commercial interpretation.

The court did remove an erroneous finding of breach of contract against CIBC Mellon, but declined to substitute it with a finding of knowing receipt, as that relief was not sought in the initial application.

The court granted the applicant's request to introduce evidence of damages related to data sharing by all custodial entities of Mellon Financial Corporation at the time of the agreement, despite the previous finding that those entities were entitled to receive the data.

The representative plaintiff sought approval of a class action settlement regarding 'defeat devices' in Mercedes Benz BlueTEC diesel vehicles.

The settlement, valued at approximately $530 million, included no-charge emission modifications, extended warranties, and cash payments.

The court approved the settlement as fair and reasonable, noting the risks of further litigation.

The court also approved $14 million in legal fees to be paid by the defendants and a $10,000 honorarium for the representative plaintiff.

The appellants moved to expedite their appeal of a liability decision and to be relieved from filing a formal order, arguing that an early appeal could render a subsequent damages trial unnecessary.

The respondent opposed, contending that the appeal should not be scheduled until the damages trial was adjudicated, allowing for a single, comprehensive appeal.

The court dismissed the motion, emphasizing the principle of judicial economy and the ordinary practice of pursuing a single appeal encompassing both liability and damages.

The court found that fragmenting the appeal would likely delay the overall administration of justice and that any potential costs thrown away could be addressed in a costs award.

The appellant, 2161907 Alberta Ltd., appealed a lower court decision that found it had wrongfully terminated agreements with the respondent, 11180673 Canada Inc., and acted in bad faith, ordering payment of a $2 million branding fee.

The dispute arose when 216 refused to fund 111's rent, leading 111 to threaten not to open its cannabis store. 216 terminated the license agreement, citing a "threat to cease carrying on business." The Court of Appeal upheld the lower court's finding that 216's termination was invalid, interpreting the "threat" clause objectively in context.

However, the Court of Appeal set aside the finding of bad faith, clarifying that an incorrect belief in a valid termination right, even if motivated by a desire to end the relationship, does not automatically constitute bad faith when there is no knowing misrepresentation or deliberate creation of the breach.

The appeal regarding the sublease termination was dismissed as practically resolved.

The applicant and respondent, two brothers, were involved in an arbitration regarding the separation of their trucking businesses.

The arbitrator appointed an inspector to investigate the respondent's conduct and potential unequal benefits.

On this motion, the court affirmed the arbitrator's jurisdiction to appoint an inspector for parties to the arbitration agreement.

The court also appointed an investigative receiver to sell the business and investigate the respondent's transactions, including those involving a non-party, Motion Transport Ltd. The applicant's proposed receiver was appointed due to a potential conflict with the respondent's choice.

Following a successful appeal, the appellant sought its costs of the original application on a substantial indemnity basis, citing the respondent's bad faith dealing.

The Court of Appeal declined to award substantial indemnity costs, finding the respondent's conduct did not rise to the level of reprehensible, scandalous, or outrageous.

The Court awarded the appellant partial indemnity costs fixed at $100,000.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.

The plaintiffs commenced a medical malpractice action after a relative's death, which the defendants argued was statute-barred under the Trustee Act.

The plaintiffs pleaded fraudulent concealment of CT imaging to toll the limitation period.

The motion judge dismissed the negligence claims, finding no causal connection between the concealed imaging and the failure to sue within the limitation period, but allowed breach of contract and PHIPA claims against the hospital to continue.

The Court of Appeal allowed the plaintiffs' appeal, holding that the motion judge erred by deciding the factual question of fraudulent concealment as a question of law under Rule 21.01(1)(a).

The Court found the plea of fraudulent concealment was neither patently ridiculous nor manifestly incapable of proof, and that factual disputes regarding causation should not be determined on such a motion.

Staff of the Ontario Securities Commission brought a motion to adduce an expert report at an upcoming merits hearing regarding alleged misleading statements and fraud by the respondents in relation to a solar energy investment fund.

The respondents objected to the report's admissibility.

The Commission first determined that it was appropriate to decide the admissibility issue at a preliminary stage before the merits hearing, applying the Mega-C test.

On the merits of the admissibility, the Commission held that the expert's opinions on solar industry norms were rendered irrelevant by the respondents' undertaking not to lead evidence or make submissions on those points.

The expert's opinion on the reasonable expectations of investors was deemed unnecessary as it fell within the Commission's own expertise.

Consequently, the expert report was ruled inadmissible.

The applicant licensor sought declarations that the respondent licensee breached a License Agreement, Sublease, and Loan Agreement for a cannabis retail store, justifying termination.

The respondent counter-applied for a $2,000,000 Branding Fee and damages for wrongful termination.

The court found that the applicant's termination was invalid and breached the duty of good faith, as it was based on a mere expression of frustration by the respondent after being given incorrect information about loan funding.

The court ordered the applicant to pay the Branding Fee, net of certain deductions, and awarded costs to the respondent.

The appellant sought to sell 15 gas stations in Ontario and Quebec, requiring the assignment of leases and credit/debit card agreements.

The respondent refused to consent to the assignments unless the appellant agreed to a five-year contract extension.

The application judge found the refusal unreasonable for the leases but dismissed the application entirely due to Quebec choice of law and forum selection clauses in some leases.

The Court of Appeal allowed the appeal, holding that the judge erred by not granting relief for the Ontario stations, by failing to apply the strong cause test to depart from the forum selection clauses, and by not finding that the duty of good faith precluded the respondent from unreasonably withholding consent to the credit/debit card agreements.

The appellant appealed the dismissal of her motion to compel answers and document production regarding communications between the respondent and its counsel.

The appellant alleged the respondent used false evidence to procure her prosecution by IIROC, arguing the fraud/crime exception to solicitor-client privilege applied.

The Divisional Court dismissed the appeal, finding the appellant failed to establish a prima facie case that the communications were made to facilitate a crime or civil wrong, as the false information had no bearing on the regulatory investigation.

Parkland Fuel Corporation sought $88,282 in costs after successfully defending an application brought by Quickie Convenience Stores Corp. Quickie argued for no costs or a 50% reduction, citing divided success on legal issues and Parkland's late presentation of jurisdictional arguments.

The court found Parkland largely successful in the application's overall outcome, but acknowledged Quickie's partial success on one issue (compliance with first notice and offer obligations) and considered Parkland's delayed jurisdictional arguments.

Ultimately, the court awarded Parkland $52,900 in partial indemnity costs, representing a 20% reduction from their claimed amount.

This is a case management endorsement providing procedural directions for an appeal from an interlocutory order.

The endorsement sets out the schedule for the appeal hearing, which will be conducted as a video conference, and details requirements for electronic document submission, including formatting, hyperlinking authorities, and preparing compendiums.

It also reminds counsel to address costs in advance.

The appellant corporation appealed a judgment fixing the fair value of its shares at 30.4 cents per share under s. 185 of the Business Corporations Act.

The appellant argued the application judge erred by valuing the corporation on a going concern basis rather than a liquidation basis, by adjusting the cash flow forecast based on a three-month delay for alternative refinancing, and by failing to account for dilution from convertible debt.

The Divisional Court dismissed the appeal, finding that the application judge's valuation involved fact-specific judgment calls that were entitled to deference and revealed no errors of law.

Staff of the Ontario Securities Commission applied to revoke a confidentiality order made during a privilege motion brought by the respondent.

The panel had previously dismissed the privilege motion, finding that solicitor-client privilege did not apply.

As privilege was the sole basis for the confidentiality order, and the respondent did not oppose the application, the Commission found it would not be prejudicial to the public interest to revoke the order.

The application was granted, and the exhibits, submissions, and transcripts from the privilege motion were ordered to be made public.