Christopher R. Lee

The court considered whether a 2024 capital call made by the general partner of a real estate development limited partnership was valid under the partnership agreements and the Limited Partnerships Act.

The applicant, Dream Impact, argued the call was invalid and that it had not defaulted, or, alternatively, that any default was cured by other partners' contributions.

The court found the capital call was valid, Dream Impact defaulted by not contributing, but that after the other partners funded Dream Impact’s share and its interest was diluted, there was no continuing default.

The applicant’s put notice was found invalid.

The applicants sought to quash two municipal by-laws (2020.16 and 2020.57) enacted by the Township of Ramara concerning shorewall construction and maintenance in Lagoon City.

The applicants argued the by-laws were ultra vires, contrary to provincial statute (the Mara Act), and enacted in bad faith, primarily due to mandatory aesthetic concrete requirements that increased costs and the transfer of appeal powers from the Lagoon City Parks & Waterway Commission to the Township.

The court found the by-laws illegal as they were inconsistent with the Mara Act by removing cost considerations and appeal rights, and were enacted for a collateral purpose (imposing a concrete aesthetic and circumventing existing permit applications).

The court also found sufficient indicia of bad faith, including collusion, interference with municipal officers, and lack of proper public notice.

The by-laws were quashed, and the Township was ordered to grant the applicants' permit applications under the previous by-law.

The applicant, West Whitby Landowners Group Inc., sought leave to appeal a Divisional Court decision that dismissed their judicial review application against the Ontario Energy Board (OEB) and Elexicon Energy Inc. The Divisional Court had found it lacked jurisdiction over the OEB's opinion on cost allocation, deeming it not a statutory power of decision affecting legal rights, and that certiorari was unavailable.

The Court of Appeal granted leave to appeal, clarifying the test for leave to appeal from the Divisional Court.

The court emphasized that the key consideration for granting leave is the impact the decision will have on the development of Ontario's jurisprudence, particularly in administrative and public law, moving away from a rigid checklist approach.

The applicant, West Whitby Landowners Group Inc. (WWLG), brought an application seeking the court to decide a dispute with Elexicon Energy Inc. regarding the classification and funding of a municipal electrical substation.

This followed an opinion from the Ontario Energy Board (OEB) siding with Elexicon and the Divisional Court's dismissal of WWLG's judicial review application.

The respondents, Elexicon and the OEB, brought a motion to dismiss WWLG's application.

The court dismissed WWLG's application, finding it constituted an abuse of process as it attempted to relitigate a matter already determined by the OEB, and further, that the OEB had exclusive jurisdiction over the subject matter concerning compliance with the Distribution System Code.

The Court of Appeal for Ontario issued an endorsement on costs and minor revisions to its January 26, 2024 disposition of an appeal and cross-appeal.

The primary issue was whether Buduchnist Credit Union Limited (BCU) breached a Mareva Order and the consequences.

Trade Capital Finance Corp. (Trade Capital) was substantially successful on the breach and remedy issues, leading to BCU losing priority as a secured creditor and being unable to immediately enforce its judgment.

The court also addressed BCU's request for minor factual revisions to the previous reasons, adopting some and rejecting others.

This appeal concerned the breadth of the court's jurisdiction to address a breach of a Mareva order and abuse of process.

The appellant, Trade Capital Finance Corp., appealed a distribution order in favour of the respondent, Buduchnist Credit Union Limited (BCU).

BCU had made advances to clients in breach of a Mareva order and subsequently obtained consent judgments.

The motion judge found BCU breached the Mareva order, disallowed its secured claim for post-Mareva advances, but allowed it to enforce as an unsecured judgment creditor.

Trade Capital argued the enforcement should be delayed.

BCU cross-appealed its loss of priority.

The Court of Appeal found that the motion judge erred in limiting his discretion.

It held that the court has broad inherent jurisdiction to respond to a breach of its orders, including delaying enforcement of claims arising from such breaches.

The Court allowed Trade Capital's appeal, ordering that BCU's judgment enforcement for post-Mareva advances be delayed until Trade Capital's action is determined, with both parties collecting pari passu if Trade Capital succeeds.

The cross-appeal by BCU was dismissed.

The issue of specific Woodland Property advances was remitted for further adjudication.

This costs endorsement addresses the allocation of costs following two applications concerning the valuation of shares in 438056 Ontario Limited and the sale of a property under the Partition Act.

The court found divided success on the share valuation issues, leading to no costs award for that portion.

However, the Estate of Silvio Marsili was successful in its discrete claim for relief under the Partition Act, entitling it to costs for that specific aspect of the application.

Trade Capital Finance Corp. (TC) and Buduchnist Credit Union Limited (BCU) filed opposing motions in an insolvency appeal.

TC sought an extension of time and leave to appeal a lower court's final disposition order concerning the distribution of receivership proceeds, arguing the order allowed BCU to enforce judgments arising from transactions in breach of a Mareva order.

BCU sought to lift the automatic stay of proceedings and security for costs.

The Court of Appeal granted TC's motions for extension of time and leave to appeal, finding the appeal prima facie meritorious and raising issues of general importance regarding Mareva orders and creditor enforcement in insolvency.

The court denied BCU's motions to lift the stay and for security for costs, concluding that the BIA governed the appeal and that lifting the stay would render TC's appeal moot, and that security for costs was not fitting given BCU was the applicant below and TC's insolvency stemmed from the alleged fraud.

The plaintiff, Trade Capital Finance Corp., brought a motion to compel the defendant, Carlo De Maria, to make full disclosure and produce documents relating to the operation of The Cash House Inc. and related corporations.

The plaintiff alleged it was defrauded of millions of dollars and that the stolen funds were funneled through these corporations.

The court found that De Maria retained power and control over the documents despite a purported sale of the business.

The court ordered De Maria to serve a further and better affidavit of documents and produce the requested records, subject to specific rulings on individual categories of documents.

The applicant, KB Group Inc., sought a declaration that four agreements of purchase and sale for commercial condominium units were terminated and that the individual respondent was personally liable for damages.

The respondents, Dr. Satinder Kaur Saroya Medicine Professional Corporation and Dr. Satinder Kaur Saroya, opposed the termination and personal liability.

The court found that the agreements did not grant the applicant a unilateral right to terminate and were not terminated by the doctrine of frustration.

The court converted the remaining issues of repudiation, promissory estoppel, and illegality of the agreements or a collateral agreement into an action for trial, citing the need for extensive factual findings and the risk of inconsistent findings if resolved by partial summary judgment.

The appellant, a company convicted of breaching a municipal zoning bylaw by stacking shipping containers to a height exceeding the maximum permitted height of 5 metres, appealed the conviction and sought to introduce fresh evidence on appeal.

The fresh evidence consisted of internet-sourced information regarding standard shipping container sizes.

The court dismissed the motion to admit fresh evidence, finding that the evidence was available and discoverable at trial, the issue of container height was clearly foreseeable, and the appellant's legal counsel had been aware of and addressed this issue during trial.

The appellant's decision not to call evidence at trial was an informed tactical decision by counsel, and the appellant could not now introduce such evidence on appeal.

The appellant appealed a Superior Court decision that set aside a master's order reinstating his action to the trial list.

The action had been dismissed for delay multiple times and reinstated on consent.

The parties agreed to a fourth timetable with a consent order under Rule 48.14(4) requiring the appellant to meet an August 18, 2016 deadline for restoration.

The appellant met the deadline and the master reinstated the action.

The appeal judge allowed the respondents' appeal, but the Court of Appeal reversed, holding that the master correctly focused on delay subsequent to the consent order rather than the entire history of delay.

The court affirmed that the respondents' consent to the order was binding and that there was no relevant delay requiring explanation.

This endorsement addresses scheduling and the presiding judge for summary judgment motions brought by two defendants, Frank Zito and Alan Keery.

The judge, appointed under Rule 37.15 to hear all motions in the action, extended a deadline for one defendant's materials and established a new timetable for the motions.

However, citing policy considerations akin to those in Rule 50.10(1) and the Court of Appeal's decision in Royal Bank of Canada v. Hussain, the judge declined to hear the summary judgment motions because the plaintiff did not provide written consent as required by Rule 37.15(2) for a Rule 37.15 judge to preside over a trial-like proceeding.

The judge will continue to hear procedural motions in the action.

Maple Trust Company, a non-party, successfully moved to vary a Mareva order and subsequently sought costs.

The Plaintiff, Trade Capital Finance Corp., opposed the costs award, arguing for no costs or a significant reduction due to the novelty of the legal point involved in the motion.

The court acknowledged the novelty of the issue but determined that a complete denial of costs was inappropriate.

Applying principles from various precedents, the court awarded Maple Trust Company reduced costs, balancing the novelty of the legal question with the need to partially indemnify the successful party.

The plaintiffs brought a motion to compel the defendants to provide further and better responses to a request to inspect documents, specifically concerning particulars of fraud and misrepresentation allegations in their counterclaim.

The court dismissed the motion, finding that the issue of further productions could be more appropriately addressed during oral discoveries.

The Master emphasized that granting the requested relief would further delay the litigation, contrary to the principle of proportionality, and that the plaintiffs had other avenues, such as oral discovery or motions to strike/summary judgment, to advance the litigation.

The plaintiff, Trade Capital Finance Corp., obtained a Mareva injunction over the assets of certain defendants, including The Cash House Inc. (TCHI), in a fraud action.

Maple Trust Company, a non-party, had obtained writs of seizure and sale against TCHI for unrelated costs awards.

Maple Trust moved to vary the Mareva injunction to permit it to seize funds from one of TCHI's bank accounts.

The court granted the motion, holding that a Mareva injunction is not proprietary in nature and does not give the plaintiff priority over other bona fide creditors enforcing legal process.

The injunction merely restrains the defendant from disposing of assets, not preventing lawful seizure by other creditors.

The respondent, Trade Capital Finance Corp., alleged it was defrauded of approximately $6.5 million in a scheme involving the purchase of fictitious accounts receivable.

The majority of lost funds were deposited into bank accounts owned by the appellant, The Cash House Inc., a financial services company.

Trade Capital obtained a Mareva Order freezing assets and ordering financial disclosure.

The appellants were found in contempt for intentionally operating Cash House through a bank account owned by a related entity (2454904 Ontario Inc.) in violation of the Mareva Order, and for failing to produce required documents.

The motion judge sentenced Osman Khan to 90 days imprisonment and struck Cash House's statement of defence and crossclaim.

The appellants appealed, arguing the Mareva Order was ambiguous and that the sanctions were excessive.

The Court of Appeal dismissed the appeal, finding the Mareva Order sufficiently clear and the sanctions justified by the appellants' persistent non-compliance.

The appellants (defendants) appealed a Master's order that restored an action to the trial list, arguing that the Master erred by failing to find non-compensable prejudice due to the plaintiff's unexplained delay and the deaths of key defence witnesses.

The court found that the Master made a palpable and overriding error by not considering that the appellants were unaware of the witnesses' deaths when they consented to a new timetable, and by not considering the entire period of delay.

The court concluded that the plaintiff failed to provide an acceptable explanation for the overall delay and that the deaths of the key witnesses constituted non-compensable prejudice.

The appeal was allowed, and the action was dismissed.

The plaintiff brought a motion to enforce answers to questions refused on cross-examination and a motion to adduce fresh evidence, following an adjournment of an underlying motion to vary a Mareva order.

The non-parties sought costs for the adjournment and the motions.

The court found the non-parties were mostly successful overall and awarded them costs on a partial indemnity basis, fixing the amounts at $9,610 for one non-party and $4,310 for the other after assessing the reasonableness of the claimed fees.

The plaintiff, Trade Capital Finance Corp., brought a motion to compel Carlo De Maria to answer questions from his cross-examination on an affidavit supporting a motion by non-parties 2454904 Ontario Inc. and Red Quest Holdings Inc. to vary a Mareva Injunction.

The plaintiff also sought to admit fresh evidence related to banking activities of The Cash House Inc. and DoUknow Inc. The court granted the motion to admit fresh evidence to the extent it supported compelling an answer to one specific question (Q121) regarding DoUknow Inc.'s operating capital, finding it relevant to the true value of The Cash House Inc. shares and the proposed transaction.

All other questions and undertakings from the May 17, 2016 cross-examination were dismissed, as were undertakings from a November 25, 2015 cross-examination, which were deemed moot.