Cole A. Pizzo

The court considered whether a dispute over the calculation of an earn-out under a Purchase and Sale Agreement (PSA) should be referred to an independent accountant, as provided in the PSA, or determined by the court.

The applicants argued that the dispute, which concerned whether certain partnership units received by the respondents should be included in the earn-out calculation, fell within the accountant’s jurisdiction.

The respondents argued the issue was a legal one for the court.

The court held that the PSA’s language and commercial context indicated the parties intended all unresolved disputed items regarding the earn-out to be determined by an independent accountant, not just calculation disputes.

The court directed the parties to submit their dispute to an independent chartered accountant in accordance with the PSA.

Sher-E Punjab Broadcasting Inc. applied for relief from forfeiture of a license agreement with Corus Radio Inc. due to non-payment of fees.

Sher-E had invested significantly in the site and argued that previous non-payments were due to an oral agreement or ongoing disputes, and the most recent default was due to a misapprehension of a credit, family bereavement, and a key person's absence.

The court applied the three-factor test for relief from forfeiture: applicant's conduct, gravity of the breach, and disparity between the forfeited property's value and the damage caused by the breach.

The court found Sher-E's conduct, while not ideal, was not deliberate, the breach amount was small and easily remedied, and the potential harm to Sher-E from termination far outweighed the arrears.

Relief from forfeiture was granted, restoring the agreement, conditional on Sher-E paying all outstanding fees.

This case conference addressed the content and costs of the notice to be sent to class members following certification of a class action against an insurer.

The defendant insurer objected to the proposed notice content, which encouraged class members to submit claims, arguing it was improper advocacy.

The insurer also challenged the scope of notice distribution (to brokers and on its website) and sought to avoid notice costs.

The court approved the plaintiff's proposed notice content, finding it consistent with the insurer's own position on claim submission and the purpose of class notice.

The court denied the request for the insurer to post the notice on its website but ordered the insurer to provide policyholder and broker contact information.

The court further ordered that the costs of disseminating the notice, including administrator fees, be shared equally between the class and the insurer, citing the insurer's blanket denial of coverage as a factor.

The Métis National Council Secretariat Inc. (MNC) brought a motion seeking joint custody of funds and an online database, and disclosure of records from the Manitoba Métis Federation Inc. (MMF).

While the parties largely resolved the substantive issues by consent, they could not agree on costs.

The court found MMF overwhelmingly successful on the motion, as MNC failed to obtain the extraordinary relief it sought, and the modest relief obtained by consent would likely have been provided voluntarily.

The court awarded MMF partial indemnity costs of $213,687.57, finding the amount reasonable and proportionate given the complexity and importance of the motion and the reasonable expectations of the parties.

The court addressed two pretrial motions: one seeking to stay a counterclaim based on abuse of process due to delayed disclosure of a cooperation agreement, and another seeking leave for third-party discovery.

The motion to stay was dismissed, as the immediate disclosure rule for settlement agreements was found not to apply to agreements with non-parties.

The motion for third-party discovery was granted, with the court finding the non-party's evidence critical and that the cooperation agreement constituted a constructive refusal to provide information, making a pretrial examination necessary for trial fairness.

The Applicant condominium sought an order appointing an arbitrator and confirming the arbitrator's jurisdiction over issues in its Fresh as Amended Notice of Arbitration.

The Respondent developer sought to quash the notice, arguing repudiation of a prior agreement to appoint a specific arbitrator and that a third party (Gooderham) should be involved due to new matters.

The court granted the Applicant's request to appoint the agreed-upon arbitrator, finding no repudiation.

However, the court deferred the determination of the arbitrator's jurisdiction, mandate, and whether the third party should be joined to the arbitrator himself, consistent with the principle that arbitrators can rule on their own jurisdiction.

The Plaintiff, Nordik Windows Inc., was successful in a certification motion and related motions.

This endorsement addresses the costs for these motions, which involved two rounds of hearings due to a recusal by the initial judge.

The court determined the appropriate costs, considering the re-usable work from the first hearing and the work for the second hearing, ultimately awarding the Plaintiff $1,000,000.00 in all-inclusive costs.

The defendants moved for an order requiring the plaintiffs to post security for costs.

The plaintiffs, a Ukrainian national residing abroad and a British Virgin Islands corporation with no Ontario assets, argued that Mr. Spektor's shares in Black Iron Inc. (BKI) were sufficient assets and that the defendants' wealth and a forum selection clause should negate or reduce the security.

The court found the BKI shares too volatile and illiquid due to the war in Ukraine and trading volume to serve as sufficient security.

It rejected arguments based on the forum selection clause and the defendants' affluence, distinguishing the case from Yaiguaje.

The motion for security for costs was granted, with the plaintiffs ordered to post $270,000 in installments, a reduction from the $318,000 sought, primarily due to the counterclaim.

This case concerns a re-hearing of a certification motion for a class action against Aviva Insurance Company of Canada, Aviva General Insurance Company, and Aviva Canada Inc. regarding business interruption insurance claims arising from the COVID-19 pandemic.

The plaintiff, Nordik Windows Inc., sought to certify a class of businesses whose claims were denied or not submitted due to the defendants' alleged blanket denial policy.

The defendants brought cross-motions for summary judgment against Nordik and a declaration concerning the tolling of the limitation period.

The court certified the class action, dismissed the defendants' summary judgment and limitation tolling motions, and allowed the addition of three new representative plaintiffs (Cash and Carry Inc., Hangar9 Studios Inc., and Real Food for Real Kids Inc.).

The decision addresses the adequacy of the representative plaintiff, the identifiable class, and the common issues, particularly regarding notice requirements and the interpretation of insurance policy clauses in the context of pandemic-related business closures.

This appeal concerned the enforcement of letters rogatory issued by a California court in a divorce action, seeking financial disclosure from Canadian corporations and an individual.

The Ontario application judge granted the request, subject to minor refinements.

The appellants, corporate entities associated with the husband, argued procedural errors (lack of service) and substantive errors (wrong test applied, fishing expedition, burden of proof).

The Court of Appeal dismissed the appeal, affirming that the disclosure was relevant to family law obligations and not a fishing expedition, and that the application judge correctly applied the criteria for enforcing letters rogatory, including principles of comity and public policy.

The court also found that the documents were not otherwise obtainable given the husband's history of non-compliance.

The applicant, Gregory Zentner, sought certification of a class action against GFA World and related entities, alleging fraud and misappropriation of charitable donations.

The defendants brought a cross-motion for summary judgment to dismiss the claim on limitation grounds.

The court dismissed Zentner's motion for certification, finding that the pleadings did not disclose a cause of action because the donations were unencumbered gifts, meaning donors did not suffer a compensable loss recoverable through civil action.

The court also found insufficient factual basis for common issues, particularly regarding reliance and causation.

However, the defendants' summary judgment motion was also dismissed, as there remained a genuine issue requiring a trial concerning when Zentner discovered, or reasonably ought to have discovered, the material facts of his claim for limitation purposes.

This endorsement addresses two motions for leave to appeal before the Divisional Court.

The Plaintiffs' motion for leave to appeal a "set aside" order was dismissed with costs awarded to the Defendants.

Concurrently, the Defendants' motion for leave to appeal earlier certification decisions was dismissed without costs, having become moot.

The defendants in two related actions sought orders to compel the plaintiffs, Andrew Stronach and Selena Stronach, to undergo medical examinations to assess their mental capacities for the purpose of determining if litigation guardians were required.

The court dismissed the motion against Selena Stronach, finding insufficient evidence to rebut the presumption of capacity.

The motion against Andrew Stronach was dismissed without prejudice, as the court found it premature and suggested other discovery avenues should be pursued first.

The court also declined to order production of video recordings of Andrew's examination for discovery.

The plaintiff brought a motion to add three additional representative plaintiffs during a certification hearing for a class action regarding COVID-19 business interruption insurance claims.

The court found that the original plaintiff, Nordik Windows Inc., had an arguable cause of action and was a suitable representative plaintiff.

The court also found that the three proposed additional plaintiffs—Hangar9 Studios Inc., Cash and Carry Inc., and Real Food for Real Kids Inc.—had viable causes of action and met the requirements under s. 5(1)(e) of the Class Proceedings Act.

The class action was fully certified with all four as representative plaintiffs.

The plaintiffs brought motions to certify three proposed class actions against Aviva Insurance for the blanket denial of coverage for COVID-19-related business loss claims.

The claims focused on 'restricted access' and 'negative publicity' coverage provisions in Aviva's standard-form policies.

The court found that the requirements for certification under the Class Proceedings Act were met, noting the commonality of the standard-form policies and the identical denial letters.

The two Lerners Actions were certified, and the Nordik Action was conditionally certified pending a motion regarding the representative plaintiff.