David C. Moore

This endorsement addresses the respondent's attempt to file a factum in an appeal that exceeded the prescribed length and included unauthorized schedules, leading to its refusal by court registry staff.

The judge, while affirming the registry's decision for non-compliance, granted the respondent leave to file the factum (after a minor reduction) due to the imminent appeal hearing.

To ensure procedural fairness, the appellant was also granted leave to file a reply factum of a specified length.

The judge also used the opportunity to advocate for a rule change to permit reply factums as of right in appeals.

The plaintiff, a former employee, brought a motion for summary judgment against the defendant for unpaid vacation, deferred bonuses, and stock options.

The court found that the plaintiff was not constructively dismissed but had retired.

However, the court granted summary judgment for the plaintiff on the claims for unused vacation pay, deferred bonuses, and the value of lost stock options, finding no genuine issue requiring a trial for these claims.

The defendant's counterclaim for just cause dismissal had been previously dismissed by the Court of Appeal, and the current court found issue estoppel applied to prevent its re-litigation as a defense.

The defendants moved to stay or dismiss the action, arguing the causes of action were subject to an arbitration agreement.

The plaintiff contended the arbitration clause was invalid and unenforceable due to contracting out of the Employment Standards Act, inclusion of a non-party (Catalyst), and unconscionability.

The court dismissed the motion, finding the arbitration agreement invalid because it illegally contracted out of the ESA's complaint investigation process, which is an employment standard.

The court also noted that separating the issues for Catalyst was not reasonable.

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

The Court of Appeal for Ontario issued a costs endorsement following a successful Rule 137.1 motion.

The appellant sought full indemnity costs of $273,111.22, which the respondent argued was excessive.

The court affirmed the statutory presumption under Rule 137.1(7) for full indemnity costs for a successful moving party, finding the award appropriate given the respondent's unsubstantiated $150 million counterclaim.

The court fixed costs at the amount claimed by the appellant.

The appellant, an employee, sued for wrongful dismissal.

The respondent counterclaimed for $150 million alleging breach of fiduciary duties.

The appellant moved to dismiss the counterclaim under s. 137.1 of the Courts of Justice Act (anti-SLAPP), to dismiss it under r. 21 as frivolous/vexatious, for leave to amend his Statement of Claim for deferred bonuses, and for summary judgment.

The motion judge dismissed the anti-SLAPP motion and the leave to amend, and deferred the other motions.

The Court of Appeal allowed the appeal, finding the motion judge erred in interpreting "arises from" too narrowly for the anti-SLAPP motion, and that the counterclaim lacked substantial merit and valid defences.

The Court also found the motion judge erred in deferring the r. 21 and summary judgment motions, and in refusing leave to amend the Statement of Claim, as the bonus claim was an additional head of damages, not a new cause of action.

The counterclaim was dismissed, the amendment allowed, and the summary judgment motion returned to the lower court.

The plaintiff brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the defendant's counterclaim, arguing it was a SLAPP intended to silence his allegations of a poisoned workplace.

The plaintiff also moved to strike the counterclaim under the Rules of Civil Procedure, amend his statement of claim, and for summary judgment.

The court dismissed the anti-SLAPP motion, finding the plaintiff failed to show the counterclaim arose from his expressions.

The court also denied leave to amend the statement of claim as the proposed claim for deferred bonuses was statute-barred.

The remaining motions were deferred pursuant to the mandatory stay in s. 137.1(5) of the Courts of Justice Act.

The appellant, The Catalyst Capital Group Inc., appealed an order striking its claim for misfeasance in public office against Her Majesty the Queen in Right of Ontario (HMQ) without leave to amend.

Catalyst alleged HMQ improperly caused its removal as a participant in the Pan Am Athletes’ Village Project.

The Court of Appeal affirmed the motion judge's decision, finding that Catalyst's pleadings, despite being extensive, lacked sufficient material facts to plausibly support the required element of bad faith or unlawful conduct for the tort of misfeasance in public office.

The court reiterated that bald allegations of bad faith are insufficient without factual underpinning.

The defendants in a complex defamation action brought motions for the production of documents related to 'Project Maple Tree', an operation undertaken by foreign investigative agents (including Black Cube) retained by the plaintiffs.

The plaintiffs asserted solicitor-client and litigation privilege over the documents.

The court held that it had jurisdiction to hear the motions despite the stay provision in s. 137.1(5) of the Courts of Justice Act.

The court rejected the claims of solicitor-client privilege, finding the third-party investigators were not essential to the solicitor-client relationship.

The court also rejected the claims of litigation privilege for the vast majority of the documents, finding their dominant purpose was not legitimate litigation and that the 'Blank exception' applied because the agents engaged in improper conduct, including pretext stings on a former judge and opposing party employees.

The plaintiff, Catalyst Capital Group Inc., appealed a motion judge's decision to strike out several of its claims against Dundee Kilmer Developments Limited Partnership (DKD), Infrastructure Ontario (IO), and the Crown.

The claims arose from Catalyst's exclusion from financing the 2015 Pan/ParaPan American Games Athletes' Village project.

The Court of Appeal allowed the appeal in part, reinstating Catalyst's claims against DKD for breach of a funding term sheet, breach of fiduciary duty, and unjust enrichment/quantum meruit.

However, the court upheld the striking of unjust enrichment/quantum meruit claims against IO and the Crown, the public law duty claim against IO and the Crown, and the misrepresentation claim against the Crown, finding them either statute-barred, lacking direct benefit, or precluded by statutory immunity.

Catalyst Capital Group Inc. attempted to acquire VimpelCom Ltd.'s interest in Wind Mobile Corp. but negotiations failed.

During negotiations, a junior analyst employed by Catalyst left to work for West Face Capital Inc., a member of a consortium that subsequently acquired Wind.

Catalyst sued the former employee and West Face for breach of confidence and other claims (the Moyse Action).

The trial judge dismissed the action, finding that no confidential information was communicated and that Catalyst suffered no detriment because its own refusal to agree to a break fee and its insistence on regulatory concessions made the deal impossible.

Catalyst then commenced a second action against the consortium members and others alleging breach of confidence, conspiracy, and inducing breach of contract.

The motion judge dismissed the second action as barred by issue estoppel, cause of action estoppel, and as an abuse of process.

The Court of Appeal upheld the dismissal, finding that Catalyst was attempting to relitigate factual findings from the first action and that it could have advanced all claims in the first proceeding.

Various defendants brought motions to strike the plaintiffs' statement of claim, which alleged civil conspiracy, defamation, intentional interference with economic relations, and unjust enrichment.

The court struck the claims for defamation, intentional interference with economic relations, and unjust enrichment against all applicants.

The civil conspiracy claim against one individual defendant (Moez Kassam) was struck, but the conspiracy claims against the remaining Anson Corporate Defendants, Adam Spears, Sunny Puri, ClaritySpring Inc., Nathan Anderson, Richard Molyneux, and Darryl Levitt were allowed to proceed.

The court also clarified that 'whistleblower' complaints to the Ontario Securities Commission are subject to absolute privilege and do not constitute the commencement of legal proceedings for the tort of abuse of process.

This is a costs decision on appeal from a trial judgment dismissing the appellant's action.

The respondents were entirely successful on appeal and sought costs on a partial indemnity basis.

West Face Capital Inc. sought $250,000 in costs while Brandon Moyse sought $149,905.18.

The appellant argued for reduced costs amounts.

The Court of Appeal awarded West Face $200,000 and Moyse $100,000, both inclusive of disbursements and HST, considering the respondents' complete success, the nature of the appeal involving a large record and detailed factual re-litigation, and costs thrown away due to an unnecessary adjournment.

Appeal from a trial judgment dismissing the appellant's action for misuse of confidential information and spoliation.

The appellant alleged that the respondent West Face Capital Inc. improperly obtained and used confidential information about the appellant's bid to acquire WIND Mobile Inc., allegedly obtained from a former employee who moved to West Face.

The trial judge dismissed all claims, finding that the appellant failed to prove that confidential information was provided to West Face or that any such information was used in West Face's successful competing bid.

The trial judge also found that the appellant's choice to terminate negotiations due to a break fee demand, rather than West Face's competing bid, caused the failure of the appellant's acquisition.

The Court of Appeal upheld the trial judgment and dismissed the appeal, as well as the application for leave to appeal the costs orders.

The receiver, Ernst & Young Inc., moved for approval of its activities and its fees and disbursements in the receivership of Hanfeng Evergreen Inc. The former CEO and his spouse opposed the motion, seeking conditions to protect their position in separate litigation and demanding further document disclosure to assess the fees.

The court approved the receiver's activities, noting that such general approval does not constitute fact-finding that would bind the objectors in other litigation.

The court also approved the fees and disbursements, finding them fair and reasonable under the Belyea factors, and rejected the objectors' demands for further docket disclosure as disproportionate and misdirected.

The appellants appealed the Divisional Court's dismissal of their judicial review application challenging three decisions of the Ontario Racing Commission: a Suspension and Freezing Order against the owner, a procedural decision dismissing motions to quash or stay the orders, and a merits decision imposing licence suspensions, account forfeiture, and a fine.

The appellants raised three grounds of appeal: inadequate notice and particulars, loss of jurisdiction due to a panel member's expired term, and inadequate reasons.

The Court of Appeal dismissed the appeal, finding that the notice was sufficient, the panel member could continue to sit under the Statutory Powers Procedure Act, and the reasons were adequate to permit review of the reasonableness of the decision.

The defendants moved to strike portions of the plaintiff receiver's statement of claim under Rules 21 and 25 of the Rules of Civil Procedure.

The plaintiff alleged breach of fiduciary duty, fraud, conversion, and unjust enrichment against the first defendant, and knowing assistance and knowing receipt against the second defendant.

The court dismissed the motion regarding the first defendant, finding the material facts were adequately pleaded.

However, the court struck the claims of knowing assistance and knowing receipt against the second defendant, concluding they were bare allegations lacking the requisite material facts, but granted the plaintiff leave to amend.

The defendants brought a motion to strike the plaintiff's consolidated fresh as amended statement of claim without leave to amend.

The claim arose from the procurement process for the Pan/ParaPan American Games Athletes' Village, where the plaintiff alleged it was wrongfully excluded from participating in the winning bid's financing.

The court struck several claims, including breach of the term sheet, breach of fiduciary duty, unjust enrichment, and a novel 'public law claim', without leave to amend.

Claims for breach of an oral agreement and misfeasance in public office were struck with leave to amend.

Claims for fraudulent and negligent misrepresentation against the private defendants and the Crown agency were allowed to stand.

The defendants moved to strike the plaintiff's consolidated fresh as amended statement of claim without leave to amend.

The action arose from the procurement process for the Pan/ParaPan American Games Athletes' Village, where the plaintiff alleged it was wrongfully excluded from participating in the winning bid's financing.

The court struck several claims, including breach of the term sheet, breach of fiduciary duty, and unjust enrichment against the Crown, without leave to amend.

The claim for breach of an oral agreement was struck with leave to amend to provide better particulars.

The claims for fraudulent and negligent misrepresentation against the private defendants and Infrastructure Ontario were allowed to proceed.