David C. Moore

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 moving party Estate sought leave to appeal two final discretionary cost orders that dismissed its motion for costs against the impecunious respondent and her former lawyer personally.

The motions judge had found the respondent was unable to pay and that the lawyer, who acted pro bono for a limited time, did not act frivolously or vexatiously.

The Divisional Court dismissed the motion for leave, finding no error in principle and that the motions judge's decision was not plainly wrong.

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 appellant brought a motion to set aside an order of a single judge of the Divisional Court refusing leave to appeal two costs orders.

The appellant argued the leave motion should have been heard orally rather than in writing.

The court held that a single judge of the Divisional Court does not have inherent or statutory jurisdiction to set aside an order of another single judge of the same court.

The motion was adjourned to a panel of the Divisional Court, which has the statutory authority to set aside a motion order of a single judge.

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.

The appellants appealed decisions of the Ontario Securities Commission finding that they engaged in insider trading after receiving material non-public information from an administrative assistant at an investment bank.

The Commission relied on circumstantial evidence, including the proximity of telephone calls to highly profitable trades.

The Divisional Court dismissed the appeals, holding that the Commission's inferences were reasonable and that the use of compelled examination transcripts was procedurally fair.

The Court also upheld the sanctions, which included trading bans, administrative penalties, and disgorgement orders.

John Paul Budarick appealed his conviction for impaired operation of a motor vehicle.

The appeal raised two grounds: whether the trial judge erred in finding that Constable Crowhurst had the subjective belief required to make a blood demand under s. 254(3)(a)(ii) of the Criminal Code, and whether the trial judge erred in concluding there was no s. 10(b) Charter violation when police did not offer a second opportunity to consult counsel after making a blood demand following a breath demand.

The court dismissed the appeal, finding no error in the trial judge's conclusions on either ground.

The applicants, International Steel Services Inc. (ISSI), sought an interim injunction to restrain the respondent, Dynatec Madagascar S.A. (Dynatec), from interfering with ISSI's contractual rights under a Sulphuric Acid Plant Operation and Maintenance Agreement.

The dispute centered on whether the agreement was extended to September 27, 2018, as ISSI contended, or if it terminated on May 1, 2016, as Dynatec argued.

The court applied the RJR-MacDonald test for injunctions, finding a serious issue to be tried regarding the agreement's extension and Dynatec's termination notice.

It determined that ISSI faced a meaningful risk of irreparable harm to its business reputation and employee relations if Dynatec proceeded with its takeover plans.

The court also found the balance of convenience favoured ISSI, noting Dynatec's "hardball tactics" and delay in facilitating arbitration.

The interim protective order was granted to ISSI, prohibiting Dynatec from interfering with ISSI's contractual rights and operation of the Acid Plant pending an arbitral decision.

The appellant purchased three apartment buildings from the respondent.

The agreement included an escrow provision holding $300,000 of the purchase price, to be released to the respondent if the gross rental income reached a $960,000 threshold at the end of a three-year performance period.

The application judge found the threshold was met and ordered the funds released to the respondent.

On appeal, the Court of Appeal found the application judge erred in his approach to contractual interpretation by separating the words from their context, contrary to Sattva.

However, applying the correct framework, the Court concluded the parties intended to measure income performance by annualizing the rent roll at the end of the performance period.

As the threshold was met under this interpretation, the appeal was dismissed.

The applicants sought judicial review of three decisions by the Ontario Racing Commission and its Director, which resulted in the freezing of their purse accounts, a ten-year licence suspension, a $400,000 fine, and forfeiture of funds.

The applicants argued the Director lacked jurisdiction to freeze the accounts, the Commission failed to provide adequate particulars, the Vice-Chair lacked jurisdiction because his term expired before the merits hearing, and the merits decision was unreasonable.

The Divisional Court held that while the Director lacked jurisdiction to issue the freezing order, this did not invalidate the merits decision.

The court found the particulars were sufficient, the Vice-Chair retained jurisdiction under s. 4(3) of the Statutory Powers Procedure Act having heard preliminary motions, and the merits decision was reasonable.

The application for judicial review was dismissed.

Following a merits decision finding multiple respondents liable for insider trading, tipping, and misleading Staff, the Ontario Securities Commission held a hearing to determine appropriate sanctions and costs.

The Commission ordered permanent market prohibitions against the tipper and the most egregious trader, along with substantial administrative penalties and costs.

Other respondents received 15-year market prohibitions with limited carve-outs, administrative penalties, and disgorgement orders.

The Commission emphasized the importance of general and specific deterrence, particularly given the respondents' roles as registrants and their efforts to conceal their misconduct.

The plaintiffs, comprising the estate and family of the deceased, moved for summary judgment on liability in a wrongful death action arising from the defendant's prior first degree murder conviction.

The court held that, under the abuse of process and relitigation principles, a civil defendant will presumptively not be permitted to contest the factual basis of a criminal conviction absent circumstances calling the fairness of the prior proceeding into question.

No such circumstances were raised, and the defendant's limitation argument failed because the action was commenced within two years even on his most favourable assumptions.

Summary judgment on liability was granted, damages were left for later determination, and the supporting damages affidavits were ordered confidential and sealed on consent.

A law firm appealed a motion judge's order declaring that certain payments made to their former client pursuant to a settlement agreement were not subject to three charging orders in the firm's favour.

The charging orders were granted for work done in a shareholder dispute before the firm's retainer was terminated.

The Court of Appeal upheld the motion judge's finding that the disputed payments arose from subsequent litigation commenced after the firm's retainer ended, and therefore were not recovered or preserved through the firm's instrumentality.

The appeal was dismissed.

The respondents sought costs following the dismissal of the applicant's judicial review application.

The respondents sought substantial indemnity costs, arguing the litigation was duplicative, vexatious, and involved unfounded allegations of bias.

The applicant argued for modest costs to accommodate access to justice.

The Divisional Court agreed with the respondents, finding the judicial review replicated previous litigation and was entirely unfounded.

The court awarded substantial indemnity costs of $15,000 to the Swan respondents and $8,088.46 to the University of Western Ontario.