David A. Shiller

The defendants brought a motion to dismiss a proposed class action for delay under section 29.1(1) of the Class Proceedings Act and Rule 24.01 of the Rules of Civil Procedure.

The action, commenced in 2016, involved allegations of breach of fiduciary duty and other claims against the Haudenosaunee Development Institute and co-defendants.

The court found that the plaintiffs had satisfied the requirements of section 29.1(1)(a) by filing a final and complete certification motion record and section 29.1(1)(c) as the court had established a timetable for advancing the proceeding.

While the overall delay of over eight years was deemed inordinate, it was found to be excusable, largely due to the defendants' own strategic delays in prosecuting their dismissal motion and their refusal to proceed with the certification motion concurrently.

The court also found no actual prejudice to the defendants' ability to have a fair trial.

Consequently, the defendants' motion to dismiss for delay was dismissed.

The defendant moved to discharge a Certificate of Pending Litigation (CPL) against their property and sought security for costs, arguing the plaintiff, a non-resident, had no Canadian assets.

The plaintiff cross-moved for a Mareva injunction.

The court discharged the CPL, finding no evidentiary support for the plaintiff's claim to an interest in the land.

The Mareva injunction was dismissed as the plaintiff failed to establish a strong prima facie case and, even if they had, the "clean hands" doctrine would apply due to the plaintiff's admitted involvement in an illegal lending scheme.

Security for costs was ordered against the plaintiff in the amount of $50,000, as she is a foreign national with no Canadian assets and was not found to be impecunious.

Poteck Power Corp. brought a motion for summary judgment to collect a 30% contingent fee from 2465855 Ontario Ltd. for identifying and securing over $1.2 million in electricity rebates from Toronto Hydro.

The defendant argued the contract did not apply to these rebates, which arose from an existing program rather than "billing errors," and alleged the plaintiff breached its duty of good faith.

The court found the contract, when read in its commercial context, clearly applied to the rebates discovered by the plaintiff.

The defendant's arguments regarding contract interpretation, ambiguity, and breach of good faith were rejected, with the court noting the defendant's evidence lacked credibility and was largely irrelevant to the contract's terms.

The motion for summary judgment was granted in favour of the plaintiff for the full amount claimed.

The plaintiff moved for a status hearing, seeking a timetable and an extension to set the matter down for trial.

The court found the plaintiff provided a reasonable explanation for delay, including settlement discussions and other motions, and that the defendant would not suffer non-compensable prejudice.

A timetable was imposed, extending the deadline to set the action down for trial.

However, the court also ordered the plaintiff to pay two substantial outstanding costs orders totaling approximately $55,000 by a specified date, failing which the defendant could seek an order dismissing the action without notice.

No costs were awarded for the current motion.

Brian Shiller, counsel for the Berkovits parties in multiple actions, moved to be removed from the record under Rule 15.04 due to a change in his career path.

The Berkovits clients opposed, citing Mr. Shiller's intimate knowledge of their cases and advantageous financial terms.

The court, considering the Rules of Professional Conduct and principles from Todd Family Holdings Inc. v Gardiner and R. v. Cunningham, granted the motion, finding that Mr. Shiller's change in practice constituted a proper basis for withdrawal and that the clients would not suffer serious prejudice given ample time to find new counsel.

The Estate Trustees moved for court approval of a Memorandum of Understanding (MOU) and Minutes of Settlement (MOS), and to enforce the MOU against a beneficiary.

The court found that the beneficiary's consent to the MOU was conditional on obtaining independent legal advice, which was subsequently withdrawn.

The MOS, negotiated without all parties, contained terms significantly different from the MOU.

The court ruled that the MOU was void due to the withdrawal of conditional consent, and the MOS could not be approved as it was not agreed to by all parties and contained inconsistent terms.

The motion was dismissed, and the parties were directed to update estate information for further proceedings.

The plaintiffs, Wilfred Davey and Bill Monture, sought partial indemnity costs after successfully amending their statement of claim in a putative class action.

The defendants challenged the quantum of costs.

The court, applying principles of costs assessment, fixed the plaintiffs' partial indemnity costs at $15,500, including disbursements.

The decision addressed and adjusted for HST, an estimated appearance fee, and a modest reduction for costs thrown away related to the defendants' original statement of defence, while deferring the issue of costs for the certification factum.

The plaintiffs, Wilfred Davey and Bill Monture, brought a motion for leave to amend their Statement of Claim in a putative class action alleging misuse of funds intended for development projects on Aboriginal land.

The proposed amendments included correcting party names, deleting breach of contract, adding oppression, and recasting/expanding other causes of action such as breach of fiduciary duty, breach of trust, and negligent/fraudulent misrepresentation.

The court granted leave to amend, finding that it was not plain and obvious that the proposed claims for breach of fiduciary duty, breach of trust, negligent/fraudulent misrepresentation, and oppression (under the OBCA) had no reasonable chance of success.

The court also clarified that the proposed class members, as beneficiaries of a trust, could qualify as beneficial owners of shares for the purpose of bringing an oppression claim, distinguishing it from a derivative action.

The plaintiff, Enbridge Pipelines Inc., sought costs on a partial indemnity basis following a successful motion for an interlocutory injunction.

The defendants, Todd Williams and Wayne Hill, did not submit any costs submissions.

The court considered the factors under subrule 57.01(1) of the Rules of Civil Procedure and section 131(1) of the Courts of Justice Act, emphasizing the principles of indemnity, reasonable expectation of costs, and proportionality.

Given the defendants' failure to dispute the plaintiff's claim, the court found the amount claimed to be reasonable and proportionate.

Costs were awarded severally, with Mr. Williams ordered to pay $18,387.81 and Mr. Hill $7,000.00.

This is a costs endorsement following an appeal and cross-appeal to the Court of Appeal for Ontario.

The respondents were successful on both the appeal and cross-appeal.

The court awarded costs to the respondents in the amount of $40,000, inclusive of all disbursements and HST.

The judgment was also varied on consent of the parties to correct two monetary amounts in paragraphs 5 and 7.

Minority shareholders appealed a trial judgment finding oppressive conduct by majority shareholders in a real estate development company.

The trial judge found that the majority had issued too many shares in response to cash calls when the minority shareholder refused to participate, thereby diluting the minority's ownership interest.

The appellate court upheld the trial judge's interpretation of the shareholders' agreement and the calculation of share dilution, with minor adjustments to the valuation calculations.

The court also set aside punitive damages against one defendant due to inadequate notice in the pleadings, and dismissed the appellants' costs appeal.

Enbridge Pipelines Inc. sought an interim and interlocutory injunction to prevent Todd Williams and Wayne Hill from interfering with its pipeline maintenance work in the Hamilton, Ontario area.

The defendants asserted Aboriginal treaty harvesting rights under the Nanfan Treaty of 1701 as justification for their actions.

The court granted the injunction, finding that Enbridge established a strong prima facie case of trespass and irreparable harm, and that the balance of convenience favored Enbridge.

The court rejected the defendants' argument that a duty to consult and accommodate Aboriginal claims was a precondition for granting an injunction sought by a private party, emphasizing that self-help remedies are not condoned.