Cameron J. Wetmore

The appellant appealed the motion judge's decision dismissing its motion to dismiss or stay the respondents' claim for non-payment under a promissory note.

The appellant argued that Delaware was the appropriate forum based on a forum selection clause in a related agreement of purchase and sale.

The Court of Appeal upheld the motion judge's decision, finding that Delaware had no appropriate connection to the dispute and that Ontario was the clearly more appropriate forum.

The appeal was dismissed with costs awarded to the respondents.

Talon International Inc. brought a motion under Rule 49.09 to enforce settlements it claimed to have reached with five parties regarding aborted purchases and sales of condominium units.

The court found that there was no meeting of the minds and thus no settlement, dismissing Talon's motion.

The matter is to proceed on the merits, and no costs were awarded due to the miscommunication and counsel's emergency absence.

The defendant, OTO.Coach Inc., brought a motion to dismiss or stay the plaintiffs' claim for breach of a promissory note, arguing that Delaware was the more appropriate forum (forum non conveniens).

The plaintiffs, OW Technologies, LLC and OW International, LLC, sought payment of over $1.8 million USD under the promissory note.

The court found that Delaware did not have an appropriate connection to the claim, as the promissory note was governed by Ontario law, OTO's headquarters are in Ontario, and the plaintiffs were not party to the related agreement of purchase and sale (APS) or its forum selection clause.

The court dismissed OTO's motion to stay the action, concluding that Ontario was the more appropriate forum.

Costs were fixed at $20,000 in favour of the plaintiffs.

This is a costs endorsement following appeals and cross-appeals in three inter-related actions.

The Court of Appeal had previously granted Samuel Jacob Berkovits' appeal in the "Murder for Hire Action" and dismissed all other appeals and cross-appeals brought by Harold Gerstel and the Gerstel parties.

The parties were unable to agree on costs.

The court found the Berkovits parties to be more successful overall.

It ordered Harold Gerstel to pay $28,000 in all-inclusive costs to Samuel Jacob Berkovits for his unsuccessful cross-appeal in the Murder for Hire Action.

Additionally, the Gerstel parties were held jointly and severally liable to the Berkovits parties for $28,000 in all-inclusive costs for their unsuccessful appeal in the Interference Action.

No costs were awarded in the "Town Crier Action" due to divided success.

Maria Konstan and Samuel Jacob Berkovits had already settled their costs for the Murder for Hire appeal and trial.

This decision addresses consolidated appeals and cross-appeals arising from a protracted "turf war" between two competing cash-for-gold businesses, operated by Harold Gerstel and Samuel Jacob Berkovits (Jack).

The litigation involved three main actions: the "Murder for Hire Action" (malicious prosecution, abuse of process, intentional infliction of emotional distress), the "Interference Action" (nuisance, intentional interference with economic relations), and the "Town Crier Action" (defamation).

The trial judge found Jack liable for abuse of process to Maria Konstan (Harold's employee), Harold liable to Jack for nuisance and intentional interference, and Harold liable to Jack for defamation.

On appeal, the Court of Appeal granted Jack's appeal, setting aside the finding that he was liable to Maria for abuse of process, by clarifying the stringent "initiation" requirement for private complainants in such torts.

All other appeals and cross-appeals, including Harold's challenges to liability and damages for nuisance/interference, and Jack's cross-appeal for aggravated/punitive defamation damages, were dismissed.

This decision addresses consolidated appeals and cross-appeals arising from a protracted "turf war" between two competing cash-for-gold businesses, operated by Harold Gerstel and Samuel Jacob Berkovits (Jack).

The litigation involved three main actions: the "Murder for Hire Action" (malicious prosecution, abuse of process, intentional infliction of emotional distress), the "Interference Action" (nuisance, intentional interference with economic relations), and the "Town Crier Action" (defamation).

The trial judge found Jack liable for abuse of process to Maria Konstan (Harold's employee), Harold liable to Jack for nuisance and intentional interference, and Harold liable to Jack for defamation.

On appeal, the Court of Appeal granted Jack's appeal, setting aside the finding that he was liable to Maria for abuse of process, by clarifying the stringent "initiation" requirement for private complainants in such torts.

All other appeals and cross-appeals, including Harold's challenges to liability and damages for nuisance/interference, and Jack's cross-appeal for aggravated/punitive defamation damages, were dismissed.

The applicant, Growthworks Canadian Fund Ltd. (the Fund), sought an order in CCAA proceedings that its former manager, Growthworks WV Management Ltd. (the former manager), as the sole Class C shareholder, was not entitled to further dividends or payments upon the Fund's dissolution.

The former manager claimed entitlement to $672,390.61 as an incentive payment (IPA payment) on dissolution, arguing it was a debt or payable under specific share conditions.

The court dismissed the former manager's claim, finding the payment was not a debt and that the conditions for payment under the Class C share articles, specifically the performance tests, were not met as of the dissolution date due to the Fund's negative annualized rate of return.

The plaintiff brought an action for specific performance of an agreement of purchase and sale for a commercial property.

The parties had negotiated the terms over several months and signed the agreement, along with a side letter allowing the defendant's lawyer 48 hours to review the legal wording.

The defendant subsequently attempted to renegotiate the business terms and ultimately repudiated the agreement when the property's value increased.

The court found that a binding agreement had been reached and that the side letter did not permit renegotiation of business terms.

Because the property was uniquely suited to the plaintiff's business needs and damages would be inadequate, the court ordered specific performance.

The plaintiff, York Region Vacant Land Condominium Corporation No. 1010, brought a motion for leave to file a Fresh as Amended Statement of Claim, including the addition of a new defendant, Patrick Greco.

The defendants opposed certain proposed amendments, arguing they were scandalous, irrelevant, or pleaded evidence.

The Master granted leave to amend the statement of claim and add the new defendant, but struck paragraphs 8, 95, and 102-105 from the proposed pleading, finding them to be scandalous references, irrelevant, or improper pleadings of evidence.

The respondent Fund and the appellant Manager agreed that the Fund should be liquidated and dissolved but disagreed on the liquidation process.

The motion judge ordered liquidation without appointing a court-supervised liquidator, instead allowing the Fund to proceed with its proposed process using an expert.

The Manager appealed, arguing the motion judge erred in not appointing a liquidator.

The Court of Appeal dismissed the appeal, holding that section 217 of the Canada Business Corporations Act grants courts broad discretion to make orders in connection with liquidation and dissolution, and does not mandate the appointment of a liquidator.

The motion judge's reasons were cogent and supported by the record.

The plaintiff brought a motion seeking to exclude documents disclosed late by the defendants or, alternatively, to examine the defendants on them, citing non-compliance with disclosure rules.

The defendants also sought to examine the plaintiff on newly disclosed handwritten notes.

The court granted leave for the defendants to use their late-disclosed documents, but on terms that included an adjournment of the trial, an examination of the defendants on the documents, and payment of the plaintiff's costs thrown away.

The court also ordered the plaintiff to attend an examination regarding her late-disclosed notes, a request which was unopposed.

This decision reconsiders a previous costs award concerning two applications.

The self-represented litigants, William Alexander Young and John David Dinsdale, sought costs for their time spent on work ordinarily done by a lawyer, in addition to previously awarded partial indemnity for legal services and disbursements.

The court approved a minor increase in disbursements but maintained its ruling that Young and Dinsdale had not sufficiently proven lost opportunities for remuneration for their self-represented time.

The court also noted their role was akin to interveners, who typically do not receive costs.

This decision addresses costs arising from two competing applications concerning land ownership between Aragon (Wellesley) Development (Ontario) Corporation and Piller Investments Limited.

While Aragon and Piller settled their costs, the court determined the costs payable by Piller to William Alexander Young and John David Dinsdale, who were participants in the original dispute.

The court awarded partial indemnity costs for the period Young and Dinsdale were represented by counsel, along with disbursements.

However, claims for costs for their time as self-represented litigants were denied, as they failed to demonstrate a loss of remunerative activity, consistent with established principles for self-represented litigants.

The appellants appealed a motion judge's decision granting a stay of proceedings on forum non conveniens grounds.

The motion judge had characterized the claim as one for oppression under the Canada Business Corporations Act and found that Ontario was forum non conveniens because the core dispute involved shareholders' dissatisfaction with internal management decisions of a Quebec-based company.

The appellants argued the motion judge erred by misconstruing their claim as purely oppression and failing to recognize a common law claim for fraudulent misrepresentation with connections to Ontario.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's characterization of the claim or his forum non conveniens analysis.

On appeal from a Superior Court decision, the appellant challenged the application judge's interpretation of a management agreement and the restated articles of incorporation concerning Class C shares of an investment fund.

The appellant argued that a payment it made to itself should be characterized as debt rather than an unauthorized performance dividend.

The Court of Appeal upheld the lower court's decision, finding no palpable and overriding error or extricable error in law.

The court affirmed that the payment was an undeclared and unauthorized performance dividend, and that nothing in the fund's articles converted it into debt.

The applicants sought full indemnity costs against Deborah Suzanne Roth following a guardianship application for their father, Norman Roth, which became moot upon his death.

The applicants alleged Deborah's conduct, including deception, undue influence, and fraud, frustrated the proceedings and delayed a determination of Roth's capacity.

The court found no legally meaningful connection between Deborah's alleged actions and any delay in the application's determination.

It also concluded that Deborah did not exercise undue influence over Roth, as Roth was found to have acted of his own free will in opposing the application and choosing his medical care.

Furthermore, while Deborah's non-disclosure of Roth's critical health condition to the court was serious, it ultimately had no consequences for the disposition of the motion or the application.

The applicants' motion for costs was dismissed.

The Plaintiffs, a dentist and her professional corporation, brought a motion under Rule 21.01(1)(b) to strike paragraphs 6, 7, and 8 of the Statement of Defence and Counterclaim, which pleaded the defences of justification, qualified privilege, and fair comment in a defamation action.

Alternatively, they sought an order for particulars under Rule 25.10.

The court dismissed the motion, finding that the Plaintiffs were seeking evidence rather than material facts necessary for pleading.

The court emphasized that pleadings must contain sufficient information for the opposing party to know the case to meet, but not the evidence by which facts are proved.

The court also criticized the motion as unnecessary and a waste of judicial resources.

The plaintiff, Oasis Addiction Recovery Society, brought a motion for judgment to enforce an accepted offer to settle made by the defendants, Upper Canada 1ST Financial Group Inc. and Steve Erdelyi.

While both parties agreed to enforce the settlement, they disputed the interpretation of an indemnity clause, specifically the phrase "amounts paid to date." The plaintiff argued for a lower indemnity amount based on payments made directly to it, while the defendants contended for a higher amount including payments made to a third party (ICAN) before the loan transfer.

The court applied principles of contractual interpretation, considering the surrounding circumstances, and found in favour of the defendants' interpretation, obliging the plaintiff to provide an indemnity for the higher amount.

Following a prior proceeding, the court determined the appropriate costs payable by the unsuccessful party.

The successful defendants sought costs under s. 131 of the Courts of Justice Act and rule 57.01(1) of the Rules of Civil Procedure.

The court considered factors including indemnity, the reasonable expectations of the parties, and the fairness and reasonableness of the time and rates charged.

The court awarded the Drabble defendants the full amount claimed, finding the costs reasonable and reasonably anticipated, but reduced the costs sought by the Webb defendants after concluding their time spent was excessive in the circumstances.

The defendants moved for summary judgment dismissing a negligence and breach of contract claim against financial advisors on the basis that the action was statute‑barred under the Limitations Act, 2002.

The plaintiff alleged negligent investment advice relating to a 2010 flow‑through investment that generated significant capital gains tax.

The court applied the discoverability principle under ss. 4 and 5 of the Act and held that the plaintiff knew or ought reasonably to have known the material facts when he received and approved his 2010 income tax return in May 2011.

The plaintiff’s failure to carefully review the return did not postpone the commencement of the limitation period.

As the action was commenced more than two years later, the claim was barred.