Chris G. Paliare

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 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 respondents in the underlying application (BNY) brought a motion to adjourn a damages trial until after the disposition of their pending appeal on liability, to adduce further evidence, and to settle the form of judgment on liability.

The court had previously found BNY liable for breach of contract and ordered a viva voce trial on damages due to the complexity of the record.

The court dismissed the motion, finding that an adjournment would effectively impose a bifurcation not agreed to by the parties, contrary to Rule 6.1.01, and that the balance of convenience favoured proceeding with the damages trial to allow a single appeal on both liability and damages.

The court also declined to allow new evidence or settle the form of judgment at this stage.

This costs endorsement followed successful appeals by the Fram and Kerbel entities against Romandale Farms Limited.

Romandale had initially been awarded substantial indemnity costs for four intertwined actions tried together.

The Court of Appeal, applying the principle of overall success rather than issue-by-issue determination, found that Fram and Kerbel were entitled to partial indemnity costs for the original actions, having achieved overall success on appeal and having beaten a joint settlement offer.

The applicant claimed damages of over $889 million for breach of two Data Services Agreements, alleging the respondents improperly shared market pricing data within their corporate group.

The respondents argued the agreements allowed sharing across their 'line of business' or brand.

The court found the respondents breached the agreements, as the contracts, factual matrix, and parties' conduct indicated the data was restricted to the named entities.

Defences of waiver, estoppel, and limitation periods were dismissed.

However, the court found the paper record insufficient to assess damages and directed the issue of damages to a trial.

The appellants, Fram and Kerbel, appealed a trial judgment that declared a 2005 land sale agreement between Kerbel and Romandale at an end.

The trial judge had found that Kerbel repudiated the agreement by entering into a settlement agreement with Fram that delayed the closing of the land sale until after secondary plan approval.

The Court of Appeal allowed the appeals, finding that Romandale was estopped by convention from asserting that the settlement agreement breached the 2005 agreement, as all parties had shared the assumption that the sale could only close after secondary plan approval.

The Court also held that the 2005 agreement was not frustrated or void for mistake, Kerbel's claim was not limitation-barred, and Kerbel was entitled to specific performance because the lands were unique.

This is an appeal and cross-appeal concerning the assessment of a law firm's fees under an unenforceable contingency fee agreement (CFA).

The law firm, Singer Kwinter (SK), appealed the application judge's reduction of their fees and a finding of double-billed disbursements.

Their former client, David Lima, cross-appealed the quantum meruit assessment and sought a greater reduction.

The Court of Appeal affirmed that an unenforceable CFA leads to a quantum meruit assessment, not forfeiture of fees, and reversed the double-billing finding due to procedural unfairness.

On costs, the court balanced SK's responsibility for the assessment due to non-compliance with the Solicitors Act against Lima's responsibility for the hearing's length due to rejecting reasonable settlement offers.

This decision addresses competing carriage motions in proposed class actions concerning business interruption insurance claims related to the COVID-19 pandemic.

The court considered an "omnibus" action against 16 insurers and several focused actions against Aviva.

The court ruled that the Aviva-specific actions should proceed expeditiously, carved out from the omnibus action, with the Nordik Consortium and Lerners LLP appointed as carriage counsel for the Aviva claims.

The Workman Consortium was appointed carriage counsel for the omnibus action, excluding the Aviva defendants.

The decision prioritized the best interests of the class, fairness to defendants, and the objectives of the Class Proceedings Act, particularly access to justice and expeditious determination.

The moving parties sought leave to appeal a decision of the Local Planning Appeal Tribunal.

The Divisional Court dismissed the motions for leave to appeal, finding that the proposed appeals did not meet the three-part test for granting leave.

In accordance with standard practice, no reasons were provided.

The parties reached an agreement on costs.

The parties were in a romantic relationship for nearly 14 years but maintained separate residences.

The trial judge found they were spouses under the Family Law Act and awarded the respondent indefinite spousal support based on the Rule of 65, along with substantial indemnity costs.

On appeal, the Court of Appeal upheld the finding that the parties were spouses, noting that maintaining separate residences does not preclude a finding of cohabitation.

However, the Court found the trial judge erred in concluding the parties began cohabiting in the first five months of their relationship, meaning the Rule of 65 was not met.

Spousal support was reduced to a 10-year duration.

The costs award was also reduced to partial indemnity, as the appellant's legal position and financial disclosure were deemed reasonable.

Case management endorsement setting out procedural directions for two motions for leave to appeal a decision of the Local Planning Appeals Tribunal.

The court scheduled the motions to proceed by videoconference and provided detailed instructions for the electronic filing of materials, including factums, compendiums, and authorities.

The defendants brought a motion for security for costs against the plaintiff, a U.S. resident with no assets in Ontario, in a complex family dispute over trust funds.

The plaintiff claimed impecuniosity and that his action was not devoid of merit.

The court found that the plaintiff had not demonstrated impecuniosity with sufficient financial disclosure and that, while the merits were not decisive, they favored granting security due to prior releases.

The court ordered the plaintiff to post security for costs totaling $130,000 on a partial indemnity scale, balancing the plaintiff's access to justice with the defendants' protection against an unenforceable costs award.

The applicants, former officers of the respondent corporation, brought applications for advance funding of their legal fees to defend an action alleging complex commercial fraud.

The applications were brought pursuant to the corporation's Unanimous Shareholders Agreement and section 124 of the Canada Business Corporations Act.

The court applied the strong prima facie case test to determine if advance funding should be denied due to bad faith.

The court dismissed the application of the former CEO, finding a strong prima facie case of fraud had been established against him in a related Mareva injunction motion.

The court granted the application of the former COO, as the evidence did not establish a strong prima facie case of fraud against him.

The plaintiffs brought a motion for a Mareva injunction (asset freezing order) against several defendants, alleging a complex commercial fraud involving misappropriated funds, illicit acquisition fees, and kickbacks across multiple real estate development projects.

While the court found a strong prima facie case of fraud against the defendant Lee regarding his receipt of concealed acquisition fees, it found no such case against the other responding defendants.

Ultimately, the court dismissed the motion against all defendants because the plaintiffs failed to establish a real risk of asset dissipation, irreparable harm, or that the balance of convenience favoured granting the extraordinary remedy.

The appellants appealed a partial summary judgment order finding them liable for breach of contractual warranty and/or negligent representation arising from an inaccurate tree inventory attached to an Asset Purchase Agreement for the sale of tree farm assets.

The respondents claimed a shortfall of 83,106 saleable trees from the represented inventory of 236,341 trees.

The Court of Appeal allowed the appeal and set aside the liability finding, holding that the tree inventory was not a contractual representation or warranty but rather a description of purchased assets.

The court found that the respondents had expressly agreed through due diligence inspection provisions that they had satisfied themselves as to the quantity and quality of plant material, precluding subsequent claims of misrepresentation.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision denying him loss of earnings benefits.

The Tribunal had found that the applicant's inability to work was due to his personality rather than his compensable chronic pain disorder, basing this on negative credibility findings.

The Divisional Court held that the Tribunal's decision was unreasonable because it substituted its own opinion for uncontroverted medical evidence and failed to account for the Board's own policy describing the symptoms of the applicant's condition.

The application for judicial review was allowed and the matter remitted for a new hearing.

This is a costs decision on appeal from a family law matter.

The appellant (father) sought to stay family law claims pending resolution of a constitutional challenge under s. 35 of the Constitution Act, 1982.

The motion judge struck the amended answer as lacking proper pleading of the constitutional claim.

On appeal, the Court of Appeal allowed the appeal in part, granting leave to amend the answer but refusing to stay the interim support order or the family law claims.

The respondent (mother) was found to be more successful on the appeal.

The court awarded costs to the respondent in the amount of $20,000, inclusive of the costs of a stay motion and all disbursements and HST.

The applicant, acting as an estate trustee, commenced an application for judicial review without a lawyer.

The Divisional Court adjourned the hearing, holding that under Rule 15.01(1) of the Rules of Civil Procedure, a party acting in a representative capacity must be represented by a lawyer.

The court ordered the applicant to retain counsel by a specified date, failing which the application would be dismissed.