David A. Shiller

The applicants sought judgment on a $5 million promissory note securing advanced commissions paid under a charity fundraising and consulting arrangement.

The respondent contended the advance had been fully earned through commissions on funds raised in 2008 and therefore nothing remained owing on the note.

The court accepted the respondent's position, relying heavily on the charity's 2008 tax filings to find that the advanced commissions had been earned and that the note debt was extinguished by statutory set-off under s. 111 of the Courts of Justice Act.

The court dismissed the applicants' claim, discharged the related security, and held that the respondent's attempt to recover an additional commission balance was statute-barred.

An auditing firm sought a declaration that its former corporate audit client was contractually required to indemnify it for legal fees and professional time incurred responding to a regulatory investigation concerning the client.

The engagement letters contained indemnity provisions and a working papers clause requiring reimbursement for time spent responding to regulatory or legal processes.

The court held that the provisions unambiguously required the client to indemnify the auditor for both legal fees and its own professional time incurred in cooperating with the regulator, absent negligence by the auditor.

While the legal fees were accepted as reasonable on the record, the auditor’s own fees required adjustment based on the underlying dockets, excluding entries lacking descriptions.

The court granted the declaration and ordered payment of the legal fees and adjusted professional fees.

The applicant moved for judgment on a demand promissory note and related security, seeking payment of a liquidated debt and dismissal of any set‑off claims raised by the respondent.

The respondent asserted a contractual right of set‑off arising from a services agreement and also brought motions seeking security for a Mareva damages undertaking and security for costs.

The court held that the existence of significant factual disputes, including whether contractual set‑off applied and limitation issues, made the matter unsuitable for determination on motion.

The court also found insufficient evidence to justify security for the damages undertaking or security for costs.

Both motions were dismissed and the issues were directed to proceed to trial.

The defendants/appellants moved for a stay of two requirements imposed by the trial judge pending their appeal: to develop a by-law amendment regarding new membership applications and to hold a special meeting to elect directors.

The trial judge had previously declared the admission of 23 new members and a subsequent meeting to appoint directors null and void due to bad faith.

The Divisional Court dismissed the motion for a stay, finding that the loss of the right to vote by the five appealing defendants at the next meeting would not result in irreparable harm, and the balance of convenience favoured holding the election sooner rather than later.

In ongoing litigation concerning a family marina business under receivership, the court considered a motion by the court‑appointed receiver seeking approval of its interim reports, payment of interim receiver’s fees, and approval of legal fees incurred by its counsel.

The defendants opposed the motion, alleging bias by the receiver and arguing that the original receivership order permitted payment only from the proceeds of a future sale of the marina.

The court found no evidence of bias or improper conduct by the receiver and held that a material change in circumstances—specifically opposition to the marina’s sale—permitted variation of the prior order to allow interim payment.

The court approved the receiver’s interim reports and authorized payment of the receiver’s fees and legal fees as fair and reasonable, but declined to grant the receiver a first charge over the marina property.

The court also ordered that $17,000 be released to the estate once a properly appointed estate trustee or administrator complied with Rule 9 of the Rules of Civil Procedure.

The applicant sought continuation of a Mareva injunction freezing the respondent’s assets in connection with a disputed promissory note and security agreement.

The respondent argued the injunction should be set aside due to material non‑disclosure on the original ex parte motion, including the applicant’s assignment of the security underlying the debt and the respondent’s asserted set‑off claim.

The court held that the potential weakness of the undertaking as to damages arising from the assignment should have been disclosed to the judge who granted the ex parte order.

Although the court declined to continue the Mareva injunction in its existing form, it found that some interim relief was justified to preserve the status quo pending a short trial.

The injunction was continued temporarily for ten days with limited permitted expenses and directions for proposals regarding payments and trial scheduling.

The applicant subtenant sought a permanent or interlocutory injunction to enforce an exclusivity clause in its commercial sublease, which granted it the exclusive right to operate a karaoke club.

The respondent sublandlord had leased another unit to a co-respondent for a restaurant with karaoke.

Finding material facts in dispute, the court ordered the application to proceed to trial.

Applying the RJR-MacDonald test, the court granted an interlocutory injunction restraining the co-respondent from providing karaoke services pending trial, finding a serious issue to be tried, irreparable harm to the applicant's business, and the balance of convenience favouring the applicant.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario refusing its application for a liquor licence.

The Divisional Court found the Board's decision unreasonable because, although it correctly stated the onus was on the objectors to prove the licence was against the public interest, it failed to apply that test and balance the evidence.

The appeal was allowed, the decision set aside, and the matter remitted for a new hearing.

The plaintiff landlord brought a motion under Rule 5.04 to add a newly incorporated company as a defendant, alleging it received assets, business opportunities, and benefits through fraudulent conveyances after the tenant abandoned leased premises.

The proposed defendant argued that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that the presumption of discovery under s. 5(2) was rebutted because the proposed defendant corporation did not exist at the time of the underlying events.

Given uncertainty regarding when transfers occurred and when the plaintiff could reasonably have discovered the claim, the court found a triable issue of discoverability.

Leave was therefore granted to add the corporation as a defendant with permission to plead a limitations defence.

Following earlier reasons dismissing competing motions relating to enforcement of an alleged settlement agreement and interlocutory relief in a corporate dispute, the court was asked to determine costs.

The moving party sought substantial costs relying on a prior offer to settle and alleged litigation conduct by another respondent.

The court held that neither side achieved meaningful success because the substantive dispute, including enforceability of the settlement agreement, would be determined at trial after the proceeding was converted into an action.

Given the largely technical successes and the likelihood that ultimate success would only be determined at trial, the court ordered that costs of the motions be costs in the cause.

No costs were awarded with respect to the parties’ competing claims for costs.

A motion was brought to enforce a settlement agreement under which a shareholder allegedly agreed to sell his one‑third interest in a corporation to the other shareholders.

The moving party sought summary enforcement of the settlement.

The responding party argued the settlement should not be enforced due to alleged fraudulent misrepresentations regarding the corporation’s financial condition and tenancy prospects.

The court held that a motion to enforce a settlement applies the same test as summary judgment and found that numerous genuine issues of fact required a trial.

The motion to enforce the settlement was dismissed and the original application was converted into an action to allow the disputed issues to proceed to trial.

The appellant appealed an order enforcing a monetary judgment from a Michigan court.

The Court of Appeal upheld the motion judge's finding that the appellant had attorned to the jurisdiction of the Michigan court, which gave the Ontario court jurisdiction to enforce the judgment.

The court also found that the narrow exceptions to enforcement set out in Beals v. Saldanha did not apply.

The appeal was dismissed with costs.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario suspending its liquor licence for six days for permitting drunkenness and serving an intoxicated patron.

The appellant argued it was denied procedural fairness when the Board restricted cross-examination regarding an adjacent establishment, that the Board failed to articulate a legal test for intoxication, and that the penalty was excessive.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness, no error of law in applying the plain meaning of intoxication, and that the penalty was reasonable.

The appellant was unsuccessful at trial, where the trial judge made no order as to costs due to her impecuniosity.

The appellant subsequently pursued an appeal and was again entirely unsuccessful.

The Court of Appeal awarded costs to the respondents, holding that they should not be deprived of their costs a second time despite the appellant's financial circumstances.

The appellant, a former Tim Horton's employee, was acquitted of criminal theft charges and subsequently sued her employer and the arresting officer for malicious prosecution, wrongful dismissal, and other claims.

A jury dismissed all her claims.

On appeal, the appellant argued the trial judge misdirected the jury on the definition of theft and failed to properly outline her position.

The Court of Appeal dismissed the appeal, finding no substantial wrong or miscarriage of justice, as the jury was entitled to reach its factual conclusions based on the evidence.

The appellant, a former Tim Horton's employee, was charged with theft after management viewed a videotape and contacted police.

She was acquitted and subsequently sued the arresting officer and the restaurant owner for malicious prosecution, wrongful dismissal, intentional infliction of mental distress, and defamation.

A jury found against her on all issues.

On appeal, she argued the trial judge misdirected the jury on the definition of theft, failed to outline her position, and improperly allowed the defendants to expand the theft allegation.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the jury's verdict and concluding the jury was properly instructed.

The appellant brought a motion to vary a stay order regarding the revocation of its liquor licence, seeking permission to open its back patio during the summer.

The respondent Commission opposed the motion and brought a countermotion to lift the stay, alleging the appellant breached the conditions of the stay.

The court dismissed both motions, finding that the appellant's request to vary the conditions was not justified and that the Commission failed to prove the alleged breaches.

The court also ordered the parties to expedite the appeal.

The appellant appealed a motion judge's decision striking his statement of claim and dismissing his action against the Crown and College respondents.

The appellant had asserted claims based in negligence, malice, misfeasance in public office, and Charter breaches relating to the suspension of his OHIP payments.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the pleadings were seriously deficient, failed to disclose a reasonable cause of action, and that certain claims were res judicata.

The appellant obtained a conditional stay of a decision pending appeal.

The respondents brought a motion to revoke the stay, alleging that intoxicated patrons were found on the appellant's premises.

Due to the timing of the motion and the unavailability of the appellant's counsel, the court granted a short adjournment of the motion to revoke the stay.

The appellants appealed an order granting summary judgment to the respondents.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the respondents' blanket denials of wrongdoing satisfied the threshold for a Rule 20 motion, and that the appellants' materials failed to raise a genuine issue for trial.

Leave to appeal costs was denied, and costs of the appeal were awarded to the respondents.