Daniel Rosenbluth

This is a costs decision following the applicant's successful recovery of a loan in the principal amount of approximately $14 million plus accrued interest.

The applicant sought full indemnity costs of $125,890 based on a provision in the loan agreement, while the respondents argued for partial indemnity costs of $50,000.

The court found that the loan agreement provision was sufficiently clear to encompass enforcement costs and awarded substantial indemnity costs of $108,000 inclusive of fees, HST and disbursements.

This decision concerns a motion for leave to appeal an order approving the sale of a property in receivership.

The moving parties, owners of the property, sought an adjournment to arrange financing to redeem the first mortgage and continue their affordable housing project.

The motion judge denied the adjournment and approved the sale.

On motion for leave to appeal, the Court of Appeal found that the proposed appeal did not raise issues of general importance, had little merit, and that granting leave would unduly hinder the receivership process.

The motion for leave to appeal was dismissed.

The plaintiffs, Tyler Hogan and TGH Holdings Ltd., brought a motion for default judgment against Brent Massaro and BJSM Holdings Ltd., seeking declarations of oppression and breach of fiduciary duties, and an order for the defendants to purchase the plaintiffs' interests in Thunder Bay Broom and Chemical Ltd. The defendants had been noted in default due to their deliberate failure to participate in litigation, including discovery.

The court found that the defendants' conduct was oppressive and breached fiduciary duties, warranting personal liability for Massaro.

The court ordered a buyout of the plaintiffs' shares for $13,350,000, based on an expert valuation that accounted for known misconduct, but declined to include speculative damages for unknown misconduct.

Costs were awarded to the plaintiffs.

In the receivership of the Stateview entities, Tarion Warranty Corporation brought a motion seeking declaratory relief on behalf of purchasers who had paid deposits for pre-construction homes.

Tarion argued that the deposits were subject to an express or constructive trust and sought a remedial constructive trust to elevate the purchasers' priority.

The court dismissed the motion, finding that the purchasers had contractually subordinated their interests to secured lenders.

While an express trust existed for contracts with early termination provisions, the funds were not segregated.

The court declined to impose a remedial constructive trust, as doing so would improperly upset the priority scheme under the Bankruptcy and Insolvency Act.

This motion concerned the priority of new home purchasers' deposits in the bankruptcy of residential real estate developers (Stateview entities).

Tarion Warranty Corporation sought declaratory relief, arguing that the deposits were subject to express or constructive trusts due to unjust enrichment, which would elevate purchasers' claims.

The court dismissed Tarion's motion, finding that purchasers' agreements contained subordination clauses giving priority to secured lenders.

The court also determined that while express trusts existed for some purchasers with early termination provisions, these were not statutory deemed trusts.

Furthermore, there was no unjust enrichment for purchasers without express trusts, as the operation of the Bankruptcy and Insolvency Act constituted a juristic reason.

The court declined to impose a remedial constructive trust, emphasizing the high bar for such remedies in insolvency proceedings and the lack of a close causal connection between the deposits and the real property proceeds.

This endorsement addresses the costs of a successful motion by the plaintiffs to strike the defendants' Statement of Defence.

The plaintiffs sought substantial or partial indemnity costs, arguing the defendants' non-compliance with disclosure obligations necessitated the motion.

The court found the plaintiffs' claimed hourly rates excessive for the Northwest Region and the docketed hours unreasonable for a non-complex, largely undefended procedural motion.

Applying principles that costs should be fair and reasonable, reflecting parties' expectations, the court awarded the plaintiffs $7,500.00, inclusive of fees, HST, and disbursements, significantly less than sought.

This appeal concerned the appropriate remedy for a party who deliberately accessed the opposing party's privileged information.

The application judge had struck the appellant's Notice of Appearance, barred them from filing evidence, and ordered the Partition Application to proceed undefended.

The appellant argued that this remedy was unpleaded, unproven, and that lesser remedies were available.

The Court of Appeal dismissed the appeal, affirming the application judge's decision.

The court found no error in applying the three-part test for unauthorized access to privileged documents, particularly given the appellant's failure to rebut the presumption of prejudice or propose effective alternative remedies.

The applicant, J. Lang Management Inc., brought a motion for a certificate of pending litigation (CPL) over the "Jordon Lands" based on a contractual term in an asset management agreement.

This term stipulated that the respondents would grant a mortgage over the Jordon Lands to secure asset management fees if the applicant had a reasonable apprehension of non-payment.

The respondents argued the fees were not owed and that the applicant had provided no valuable services.

The court found that the applicant had raised a triable issue regarding its interest in the land and that granting the CPL was just and equitable.

The court rejected the respondents' proposed alternative security, emphasizing the importance of upholding the specific security terms negotiated in the commercial agreement.

The applicant, J. Lang Management Inc., brought a motion for a certificate of pending litigation (CPL) over the Jordon Lands, asserting a contractual right to a mortgage over the property to secure asset management fees.

The respondents opposed, arguing the fees were not earned or due.

The court found that the applicant raised a triable issue regarding its interest in the land and that the balance of equities favored granting the CPL.

The respondents' offer of alternative security was rejected as it would effectively rewrite the parties' negotiated commercial agreement and diminish the applicant's bargained-for protection.

The Applicant brought a motion for judgment, alleging that the Respondent's principal, Paul Halyk, accessed confidential and privileged communications between the Applicant's principal and its legal counsel.

The court found that Halyk accessed privileged material and failed to rebut the presumption of prejudice, as he did not provide specific details about the extent of his review.

While declining to grant judgment on the Application due to insufficient evidentiary record for the underlying merits, the court ordered the Respondent's Notice of Appearance struck, allowing the Application to proceed as undefended.

The Receiver brought a motion for court approval of multiple settlement agreements resolving litigation arising from the receivership of Distinct Infrastructure Group Inc., and for a sealing order over the confidential settlement terms.

The court approved the settlements, finding them to be a fair and reasonable commercial resolution.

The court also granted the sealing order, applying the Sherman Estate test and finding that the public interest in promoting settlements and preserving commercially sensitive information outweighed the negative effects on the open court principle.

The applicant sought an extension of time to perfect an appeal from an order dismissing an oppression application under the Ontario Business Corporations Act.

The Court of Appeal determined it lacked jurisdiction to hear the appeal, as section 255 of the Act specifies that appeals from such orders lie to the Divisional Court.

Despite finding that other factors for an extension of time (intention to appeal, brief delay, minimal prejudice) would have favoured the applicant, the motion was dismissed due to the fundamental lack of jurisdiction.

This is an appeal from a summary judgment order where the motion judge found that a personal guarantee was a continuing guarantee applicable to a subsequent amended loan agreement.

The appellants, the personal guarantors, argued that the guarantee was not continuing and that the latest loan agreement extinguished their obligations.

The Court of Appeal for Ontario dismissed the appeal, affirming that the guarantee was a continuing one and that the liabilities under the final loan agreement were "in connection with" the previous agreement, thereby maintaining the guarantors' liability.

The court also upheld the deferential standard of review for contractual interpretation.

The defendant employer brought a motion to strike paragraphs from the plaintiff's wrongful dismissal statement of claim that referred to a settlement offer and subsequent communications.

The plaintiff argued the communications were not privileged or, alternatively, fell under the exception for pleading bad faith.

The court found the communications were protected by settlement privilege and that the plaintiff's bad faith claim lacked an air of reality, as the dispute centered on a genuine disagreement over contract interpretation.

The motion to strike was largely granted.

The appellant appealed a decision finding it in breach of its commercial lease for leaving the building vacant for almost two years and denying it relief from forfeiture.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the lease or her discretionary decision to deny relief from forfeiture due to a pattern of non-compliance.

The plaintiff in a class action alleging a price-fixing conspiracy regarding film capacitors moved for approval of a settlement with the Panasonic defendants and for approval of class counsel fees.

The court found the $1.35 million settlement, which included valuable cooperation from the settling defendants, to be fair and reasonable despite being heavily discounted from the estimated exposure.

The court also approved the requested class counsel fees of 25% of the settlement, but ordered the payment to be split into two installments to incentivize counsel to advance the litigation more expeditiously.

The plaintiffs in a price-fixing class action regarding electrolytic capacitors moved for court approval of a $5.9 million settlement with the Panasonic defendants, as well as approval of class counsel fees and disbursements.

The court found the settlement, which included significant cooperation from the settling defendants, to be fair, reasonable, and in the best interests of the class.

The court also approved the retainer agreements and the requested class counsel fees of $1,487,500 (25% of the settlement) and disbursements of $141,866.96, noting the complexity and risk of the litigation.

The plaintiff, Intercap Equity Inc., brought a motion for summary judgment to enforce a debt and a personal guarantee against the principals of the corporate debtor, Capsule Media Inc. The defendants argued that the guarantee was discharged by a novation clause in a subsequent loan agreement and that their subjective understanding of the contract should be considered.

The court found the guarantee to be a continuing guarantee, covering liabilities connected to the original loan despite subsequent amendments and restatements.

The defendants' subjective interpretations were deemed inadmissible and incredible.

The motion for summary judgment was granted, enforcing the guarantee against all defendants jointly and severally.

The defendant brought a motion to compel the plaintiff to answer questions refused during her examination for discovery in a wrongful dismissal and whistleblower retaliation action.

The questions sought the identities of confidential informants who provided the plaintiff with information about her termination and an internal investigation.

The court upheld the plaintiff's refusals regarding her termination, finding the identities irrelevant.

However, the court ordered the plaintiff to disclose the source of her information regarding the HR director's presentation, as the communication did not meet the Wigmore criteria for common law privilege.

The appellant Wi2Wi Corporation appealed a judgment of the Superior Court of Justice dated October 25, 2018.

The parties settled the appeal prior to hearing.

The appeal was marked as abandoned and the parties agreed that the judgment below would be set aside.