Christopher R. Lee

Two applications were brought to determine the fair market value of shares held by the late Silvio Marsili in 438506 Ontario Limited, pursuant to a buy-sell agreement triggered by his death.

The parties' expert business valuators disagreed on valuation methodology, EBITDA normalizations, contingent liabilities, and the minority discount.

The court resolved the specific valuation disputes, preferring the respondent's expert on methodology but the applicant's expert on several normalizations and contingent liabilities.

The court directed the experts to prepare revised valuation opinions incorporating its findings.

The court also granted the applicant's request for an order for the sale of a jointly owned property under the Partition Act.

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 appellant held an aggregate licence on property owned by the respondent.

The Ministry of Natural Resources and Forestry decided to transfer the licence to the property owner.

The appellant challenged this at the Local Planning Appeal Tribunal, arguing it should receive financial compensation.

The Tribunal ruled on a preliminary motion that it lacked jurisdiction to consider financial compensation.

The appellant appealed to the Divisional Court.

The Divisional Court dismissed the appeal as premature, finding that without a full factual record and substantive decision from the Tribunal, it could not properly review the jurisdictional and policy findings.

The applicant developers sought judicial review of two letters from the Ontario Energy Board (OEB) regarding a dispute with an electricity distributor over whether a new substation was an 'expansion' or an 'enhancement'.

The OEB had provided an opinion that the project was an expansion, meaning the developers were responsible for the costs, and declined to refer the matter for a formal hearing.

The Divisional Court dismissed the application, finding that the OEB's opinion was not the exercise of a statutory power of decision and therefore not subject to judicial review.

Furthermore, the court held that the applicant had no statutory standing to compel the OEB to hold a hearing.

The moving party, UAP Inc., brought a motion for leave to appeal the order of E. M. Morgan J. released July 19, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $7,500 to the responding parties Robert Dinino and Lawrence Tyler Bacchus, and $7,500 to the responding parties Yako Hirmiz (Jacob) Yako, Sabah (Sam) Yako, and Sako Auto Parts Inc.

The plaintiff obtained an ex parte Mareva injunction against his brothers and their jointly owned corporations amidst a family business dispute.

On the return motion, the defendants argued the injunction should be set aside due to the plaintiff's failure to provide full and frank disclosure of material facts, including his involvement in prior litigation and his control over a corporate mortgage.

The court agreed that the plaintiff breached his duty of full and frank disclosure and discharged the Mareva injunction over the defendants' personal assets.

However, the court exercised its discretion to grant an alternate interim injunction securing specific corporate cash accounts and real properties pending trial.

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 plaintiff purchased an auto parts business from two of the defendants and sought an interlocutory injunction to enforce non-competition and non-solicitation clauses.

The plaintiff alleged the defendants established a competing business just outside the restricted radius and used a related company and former employees to solicit customers.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case that the restrictive covenants were breached, failed to prove irreparable harm, and that the balance of convenience favoured the defendants.

The appellant appealed a Review Decision of the Local Planning Appeal Tribunal, arguing that the Tribunal erred in law by applying the 'Clergy principle' to allow the respondent's planning applications to be assessed under the policy regime in place when they were originally filed in 1990.

The Divisional Court dismissed the appeal, holding that the Clergy principle is a procedural policy choice within the Tribunal's exclusive jurisdiction, not a legal principle subject to appeal on a question of law.

The Court also found that the Tribunal provided sufficient reasons for its decision.

The plaintiff brought an ex parte motion for a Mareva injunction against his brothers and their jointly owned corporate entities.

The plaintiff alleged that the defendants were dissipating assets, selling properties without his knowledge or consent, and transferring funds to avoid sharing them equally as previously agreed.

The court found that the motion should proceed ex parte due to the risk of further asset dissipation if notice were given.

Applying the test for a Mareva injunction, the court found the plaintiff established a strong prima facie case, a risk of asset removal, irreparable harm, and that the balance of convenience favoured granting the injunction.

The court granted a temporary Mareva injunction freezing the defendants' assets.

In an addendum to a previous appeal decision regarding a breached real estate contract, the Court of Appeal determined the amount of consequential damages owed to the appellants.

The appellants filed documentation establishing consequential losses of $28,536.64, which the respondents acknowledged as reasonable.

The court ordered the respondents to pay this amount in addition to the previously awarded damages, along with pre-judgment interest.

No order as to costs was made as the parties reached an agreement.

The purchasers agreed to buy the vendors' house.

Shortly before closing, the basement flooded.

The vendors informed the purchasers of the damage and insurance details the day before closing.

The purchasers refused to close on the scheduled date and demanded a price reduction or an extension with conditions.

The vendors offered reasonable extensions, which were rejected.

The application judge found the vendors breached the contract and acted in bad faith.

On appeal, the Court of Appeal reversed, finding no substantial damage that would allow the purchasers to terminate.

The purchasers' refusal to close constituted repudiation, entitling the vendors to terminate and claim damages for the lower resale price.

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 parties entered into an agreement of purchase and sale for a residential property.

Prior to closing, the property sustained water damage from a flooded basement.

The vendors delayed notifying the purchasers until the day before closing and only offered an opportunity to inspect on the closing date.

Both parties alleged the other breached the agreement when the transaction failed to close.

The court held that the vendors breached the agreement by failing to satisfy implied terms requiring timely notice and a meaningful opportunity to inspect, and by acting in bad faith.

The purchasers were entitled to the return of their deposit.

The defendants moved to set aside a Mareva injunction granted four years prior, citing delay and new expert evidence.

The plaintiff brought a cross-motion for summary judgment or to strike the defendants' statement of defence in a complex fraud action involving a factoring company.

The court dismissed the defendants' motion, finding the delay was largely attributable to their own failure to produce documents and that the balance of convenience favoured maintaining the injunction.

The court also dismissed the plaintiff's summary judgment motion, concluding that the extensive conflicting circumstantial evidence and credibility issues required a full trial, and that partial summary judgment was inappropriate.

The motion to strike the defence was dismissed as premature.

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 applicant, an unsuccessful candidate in a municipal election, applied for a court-ordered recount under section 58 of the Municipal Elections Act.

The applicant raised numerous complaints regarding the vote-by-mail process, electronic tabulators, and alleged lack of transparency.

The court dismissed the application, finding that the applicant's complaints were based on speculation and conjecture rather than credible evidence, and that there was no objective basis to doubt the validity of the election results.

Costs of $20,000 were awarded to the respondent municipality.

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.