Danny Kastner

The appellant appealed an order granting the respondent leave to commence a derivative action on behalf of a corporation under s. 246 of the Business Corporations Act.

The motion judge had granted leave on a nunc pro tunc basis.

The Divisional Court held that the motion judge erred in applying the doctrine of nunc pro tunc to cure an expired limitation period, following the Supreme Court's decision in the CIBC Trilogy.

The court varied the order to state that derivative claims arising more than two years prior to the filing of the motion for leave are statute-barred, but allowed the grant of leave to stand for continuing breaches within the limitation period.

The defendant sought costs after successfully opposing the plaintiff's motion to quash an appeal.

The plaintiff argued that no costs should be awarded because the motion raised a novel jurisdictional question and was brought in good faith.

The court rejected the plaintiff's arguments, finding that the motion was not sufficiently novel to justify departing from the usual rule that costs follow the event.

The court awarded costs to the defendant on a partial indemnity scale in the amount of $8,166.51.

The plaintiff moved to quash the defendant's appeal of an order granting the plaintiff leave, nunc pro tunc, to commence a derivative action.

The plaintiff argued the order was interlocutory and required leave to appeal.

The Divisional Court held that the motion judge's order was a final order because it disposed of the defendant's limitation period defence, thereby depriving the defendant of a substantive right that could have been determinative of the entire derivative action.

As a final order, leave to appeal was not required, and the motion to quash was dismissed.

The plaintiff sought substantial indemnity costs of $36,733.95 plus HST and disbursements following a successful motion, relying on offers to settle.

The responding defendant argued the costs were excessive and disproportionate, suggesting $8,000.

The court agreed the motion was complex and important, but found the plaintiff's claimed hours involved extensive duplication.

Emphasizing the overriding principles of proportionality and reasonableness, the court fixed costs at $15,000 plus HST and $2,000 for disbursements.

The plaintiff, a minority shareholder of a corporation, brought a motion to amend his statement of claim and for leave to commence a derivative action on behalf of the corporation against a real estate brokerage for breach of a joint venture agreement.

The brokerage opposed the motion, arguing the amendments constituted a new cause of action outside the limitation period and that the plaintiff did not meet the requirements for a derivative action.

The court granted the motion, finding that the brokerage had notice of the factual matrix underlying the claims within the limitation period, and that the plaintiff satisfied all statutory requirements to bring a derivative action in good faith.

An employee appealed a trial judgment dismissing his claim for unpaid bonuses following termination without cause.

The employment contract contained a limitation clause stating that bonuses did not accrue and were only earned and payable on the designated pay-out date.

The trial judge found the limitation clause unambiguous and enforceable.

The Court of Appeal upheld this decision, finding that the parties had clearly agreed on how and when bonuses would be declared, earned, accrued, and paid.

The court rejected arguments based on unconscionability and public policy, noting that the bonus provisions were freely negotiated.

The appeal was dismissed with costs awarded to the respondent.

The plaintiffs brought a motion seeking a declaration that the defendant was in civil contempt of a prior court order requiring him to cease representing himself as an officer of a community organization and to deliver the organization’s records and financial documentation.

Applying the three‑part test for civil contempt set out in Carey v. Laiken, the court held that the prior order was clear and unequivocal, the defendant had actual knowledge of the order, and he intentionally failed to comply with it.

Evidence demonstrated that the defendant continued to hold himself out as president or director and failed to produce the required records despite repeated demands and an undertaking to do so.

The court ordered the defendant to comply with the original order by a specified date and warned that failure to do so could result in the issuance of a warrant for his arrest.

The plaintiffs, having been wholly successful, were awarded costs.

The defendants sought leave to appeal a decision certifying a class action and permitting the plaintiffs to amend their statement of claim to include negligent design.

The class action concerned allegedly defective elevator sheave jammers that the defendants installed and later required replacement.

The defendants argued the motions judge misapplied the 'some basis in fact' test for certification by not weighing their evidence against the plaintiffs' evidence.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting jurisprudence on the certification test and no reason to doubt the correctness of the motions judge's decision on either the certification or the pleading amendment.

The applicant, a graduate student, sought judicial review of a university decision to dismiss him for plagiarism, alleging procedural unfairness.

The Divisional Court dismissed the application primarily due to an unexplained delay of over 21 months in commencing the application and a further 9 months in perfecting it.

The Court also found no merit to the applicant's allegations of procedural unfairness, noting that the disciplinary process was conducted without undue delay and the applicant was afforded appropriate procedural rights.

The appellant solicitors appealed a motion judge's decision upholding an assessment officer's reduction of their legal fees.

The assessment officer reduced the fees because the solicitors failed to adequately advise the client of the costs consequences of the tactics she insisted upon.

The Court of Appeal dismissed the appeal, finding that the assessment officer's conclusion was not unreasonable given the specific circumstances of the client, which required extra efforts to clarify the harsh realities of costs consequences.

The CRTC ordered telecommunications carriers to create deferral accounts from urban residential telephone service revenues.

It later directed that these funds be used to improve accessibility for persons with disabilities, expand broadband coverage, and distribute remaining amounts to subscribers as credits.

Bell Canada, TELUS, and consumer groups appealed the CRTC's authority to make these allocations.

The Supreme Court of Canada dismissed the appeals, holding that the CRTC's creation and use of the deferral accounts was a reasonable exercise of its rate-setting authority under the Telecommunications Act, which requires it to balance the interests of consumers, carriers, and competitors while implementing national telecommunications policy objectives.

The Law Society of Upper Canada appealed a decision of its Appeal Panel restoring the membership of a former judge who had resigned following findings of serious sexual misconduct.

The Divisional Court dismissed the appeal, upholding the Appeal Panel's findings that the Hearing Panel erred in applying the enhanced 'Bernstein' standard of proof and in concluding it lacked jurisdiction to impose conditions on a restored licence.

The Court confirmed that the standard of proof for restoration is a simple balance of probabilities, the burden of proof lies on the applicant, and the Law Society has broad jurisdiction to impose conditions on a restored licence to protect the public interest.