David E. Wires

The applicants sought to set aside or vary two interlocutory awards made by an arbitrator, arguing that the arbitrator made findings on unpleaded allegations, resulting in a 'trial by ambush.' The underlying arbitration involved a dispute over share ownership and unpaid dividends, where the arbitrator dismissed the applicants' summary judgment motion based on a limitation period defence.

The Superior Court dismissed the application, holding that the court should not interfere with interlocutory arbitral decisions to avoid piecemeal review.

Furthermore, the court found no procedural unfairness, as the issues had been properly pleaded and the applicants had the opportunity to call reply evidence but declined to do so.

The defendant brought a motion for security for costs against the three corporate plaintiffs under Rule 56.01(1)(d) and (e) of the Rules of Civil Procedure.

The court found that the plaintiffs failed to demonstrate they had sufficient exigible assets in Ontario to satisfy a costs award, as their primary assets were patents of uncertain value and marketability.

Furthermore, the plaintiffs failed to establish a good chance of success on the merits, particularly given adverse credibility findings against their principal in a related arbitration.

The motion was granted, and the plaintiffs were ordered to post security for costs in tranches.

The moving party, a director of the debtor companies, sought leave to appeal orders approving the sale of a lawsuit commenced by the debtors against their secured creditor.

The receiver had accepted a credit bid from the secured creditor to purchase the action.

The Court of Appeal dismissed the motion for leave to appeal, finding that the receiver's authority to sell the action was already determined in prior unappealed orders (res judicata) and that the proposed appeal lacked prima facie merit.

In a receivership proceeding, a corporate director sought leave to control litigation commenced by debtor companies against a secured creditor, arguing that the receiver faced a conflict in pursuing claims against the creditor that initiated the receivership.

The court held that the request constituted an impermissible collateral attack on a prior order directing the receiver to conduct a sales process for the litigation asset.

The court further determined that secured creditors may participate as bidders in a receiver’s sales process, including by way of credit bid, and that such participation is consistent with insolvency principles requiring maximization of value for stakeholders.

Applying analogous bankruptcy authorities, the court approved the receiver’s recommendation to sell the action to the secured creditor through a $1 million credit bid and rejected objections regarding valuation and fairness of the process.

In a Commercial List costs decision arising from competing receivership-related applications and motions, the applicant sought substantial indemnity costs based on contractual costs clauses in loan documentation.

The court held that, although contractual rights to solicitor-and-client-type costs are generally enforced, the unresolved allegation that the applicant breached a forbearance agreement constituted a special circumstance making an immediate substantial indemnity award inappropriate.

Applying the Rule 57.1 factors and rejecting reliance on outdated historical costs guidelines, the court fixed partial indemnity costs at $160,000 inclusive of fees and disbursement.

The request to require the respondent to pay the receiver's fees and disbursements was refused.

Following a wrongful dismissal trial in which the plaintiff recovered damages for reasonable notice, the court determined costs and interest.

The plaintiff sought over $101,000 in costs, but the court found counsel had recorded excessive and unreasonable time on a relatively straightforward file.

Applying the principles of reasonableness, indemnity, and what the unsuccessful party could reasonably have expected to pay, the court reduced the claim substantially.

Interest of $10,770.09 was awarded, and costs were fixed at $42,000 inclusive of HST on a partial indemnity basis, excluding mediation costs.

The applicant, a secured creditor, applied to appoint a receiver over the assets of the respondent guarantor following a default on commercial loans.

The respondent cross-applied to lift a stay of proceedings to continue a $100 million damages action against the applicant for alleged breach of a forbearance agreement, and sought to have the proceeds from the sale of the primary debtor's assets paid into court.

The court held that the receivership order did not stay the debtor's action, but refused to order the funds paid into court as the respondent had no proprietary claim to the funds that superseded the applicant's first-ranking security.

The court appointed a receiver over the respondent, finding it just and convenient given the unconditional nature of the guarantee.

A senior logistics executive sued for wrongful dismissal after being terminated without adequate notice less than three years after recruitment to serve as country manager of Canadian operations.

The court applied the Bardal factors, considering the employee’s age, senior management responsibilities over a large national operation, limited comparable employment opportunities, and evidence of inducement from secure prior employment.

The court also considered the requirement that the employee make a substantial investment in an affiliated company as creating an implied expectation of longer‑term employment.

Despite the short tenure, these factors justified a lengthy notice period.

Reasonable notice was fixed at 14 months and damages were awarded after deducting mitigation earnings and payments already received.

The appellants obtained ex parte Anton Piller and Mareva injunctions against the respondents based on misleading evidence.

The injunctions were later set aside, and a damages inquiry was held pursuant to the appellants' undertaking as to damages.

The inquiry judge awarded the respondents $954,576 in damages, including compensation for a seized cellphone, loss of transition time, and legal fees, as well as a charging order for respondents' counsel.

The appellants appealed the damages award and the charging order.

The Court of Appeal dismissed the appeal, finding that the inquiry judge made no errors in assessing damages or granting the charging order.

Following a damages inquiry in which the defendants were awarded damages including legal costs, the defendants sought additional partial indemnity costs for a prior recusal motion.

The court determined that the costs associated with the recusal motion had already been included in the damages award for legal costs following review of the defendants’ docketed accounts.

Because those costs were already compensated in the earlier award, they could not be recovered again.

The court therefore dismissed the belated request for additional costs and declined to award further costs for the present dispute.

The defendants sought over $100 million in damages following a damages inquiry ordered after the plaintiffs wrongfully obtained ex parte Mareva and Anton Piller orders that shut down the defendants' lottery telemarketing business.

The court found that most of the financial losses and lost business opportunities were caused by an American Temporary Restraining Order that pre-dated the ex parte orders, not the ex parte orders themselves.

However, the court awarded $250,000 for the loss of an opportunity to transition the business in an orderly fashion, $1,000 for a seized cell phone, and $703,576 for legal expenses incurred in setting aside the orders and participating in the inquiry, for a total award of $954,576.

The plaintiffs sought partial summary judgment declaring that no binding contract existed for a nationwide roll‑out of a stored value “Tim Card” payment system and that they had not misused confidential information obtained during a pilot program.

The defendants alleged that a binding agreement had been reached or, alternatively, that the plaintiffs breached confidentiality obligations and a duty to negotiate in good faith after abandoning negotiations and conducting an RFP process.

The court held that the evidence showed only an agreement in principle and ongoing negotiations, not a finalized contract, as material terms remained unresolved and the parties’ conduct did not demonstrate a binding commitment.

The court also found no misuse of confidential information, concluding that the operational data from the pilot project belonged to the restaurant chain and did not constitute protectable confidential information of the technology vendor.

However, genuine issues remained regarding whether the plaintiffs breached a contractual obligation to negotiate in good faith.

The appellants appealed an order dismissing their motion to challenge Ontario's jurisdiction and stay the action on the basis of forum non conveniens.

The respondent alleged the appellants conspired to defraud it of over $2,000,000.

The Court of Appeal upheld the motion judge's finding that a presumptive connecting factor existed (a tort committed in Ontario) and that the appellants failed to rebut the presumption of a real and substantial connection.

The Court also found no basis to interfere with the motion judge's conclusion that Ontario was the appropriate forum.

The appeal was dismissed with costs.

The defendant brought a motion to stay or dismiss an Ontario action for lack of jurisdiction.

The plaintiffs sought contribution and indemnity from the defendant in relation to a large American judgment arising from their lottery resale business.

Applying the real and substantial connection test clarified in Club Resorts Ltd. v. Van Breda, the court considered whether the defendant carried on business in Ontario.

The court found that the defendant’s indirect relationship with the plaintiffs through an authorized retailer in Prince Edward Island, a single audit visit, and termination of a retailer agreement did not establish that the defendant carried on business in Ontario.

The motion was granted and the action stayed for lack of jurisdiction.

Following dismissal of a motion by several defendants seeking leave to appeal an earlier order, the court addressed the issue of costs.

The successful party sought $6,358.23 inclusive of fees, disbursements, and HST, while the opposing parties argued that $2,800.00 was appropriate.

The court held that the opposing parties’ costs submissions were excessive and lacked a breakdown supporting their proposed amount.

Applying partial indemnity principles and reviewing counsel’s docketed time, the court found a fee of $4,500.00 to be reasonable and fixed total costs accordingly.

The defendants sought leave to appeal an interlocutory decision that dismissed their motion to stay the Ontario action in favour of proceedings in California.

The court found no good reason to doubt the correctness of the motion judge's finding that Ontario had a real and substantial connection to the claim and was the most appropriate forum.

The court also concluded that the proposed appeal did not involve matters of such importance to warrant granting leave.

The motion for leave to appeal was dismissed.

The appellants brought a motion to amend the court's previous order to address the issue of costs granted by the motion judge.

The court initially declined to hear the motion, believing the issue had not been properly advanced, but later invited written submissions after realizing its mistake.

Noting that the appellants were successful on one major issue on appeal and failed on another, the court reduced the motion judge's costs order in favour of the respondents from $293,101 to $100,000 inclusive of disbursements.

The appellants brought a motion in writing to amend the court's previous judgment to address the issue of costs granted by the motions judge.

The Court of Appeal dismissed the motion, noting that the appellants had failed to mention the costs award in their notices of appeal, factum, or oral argument.

The court held that it was too late to raise the issue and that allowing the motion would be unfair and prejudicial to the respondents.

Costs of the motion were awarded to the respondents in the amount of $5,000.

The parties made costs submissions following an appeal decision.

The Court of Appeal for Ontario maintained its view that success on the appeal was equally divided.

Consequently, the court ordered that there be no costs of the appeal.

The United States government sought to enforce a $19 million Illinois judgment and permanent injunction against the defendants, who operated a cross-border lottery telemarketing business.

The motion judge refused summary judgment, finding a triable issue on a 'new' defence of denial of a meaningful opportunity to be heard.

The motion judge also ordered an immediate damages inquiry regarding undertakings the U.S. gave when it previously obtained Mareva and Anton Piller orders that were later dissolved.

The Court of Appeal allowed the appeal in part, holding that there is no new defence to foreign judgment enforcement based on a meaningful opportunity to be heard, which is indistinguishable from natural justice.

The Court enforced the U.S. judgment but upheld the order for a damages inquiry, finding no special circumstances to relieve the U.S. of its undertakings despite the alleged illegality of the defendants' business.