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 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.

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 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.

The appellants were successful in obtaining a notable reduction in the costs award against the respondents and sought their costs.

The Divisional Court considered the divided success on various issues, including the leave motion, interest date, substantial indemnity, and fresh evidence.

The court fixed the appellants' costs at $35,000, apportioning liability between the Yemec respondents (two-thirds) and the Bungaro respondents (one-third) to reflect their different levels of participation and liability.

The appellants appealed a costs order of $691,304.74 on a substantial indemnity basis, awarded after the respondents successfully moved to set aside an ex parte Mareva injunction and Anton Piller order.

The Divisional Court upheld the substantial indemnity scale, finding the appellants' failure to make full and frank disclosure was not inadvertent.

However, the court found the motion judge erred in failing to properly analyze the bills of costs and apply the Boucher principles to ensure the quantum was fair and reasonable.

The court reduced the costs awarded to the Yemec respondents by 40% and to the Bungaro respondents by 20%.

The court also held that post-judgment interest on the costs award should run from the date of the costs order, not the date of the decision on the merits.

The plaintiffs sought leave to appeal a costs order granting the defendants substantial indemnity costs of $616,900 following the dissolution of an ex parte Mareva injunction and Anton Piller order.

The motion judge had awarded substantial indemnity costs based on a finding that the plaintiffs failed to make full and frank disclosure, regardless of whether the failure was willful.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the costs award due to the lack of a full analysis under Rule 57.01 and the questionable proposition that unintentional non-disclosure automatically warrants substantial indemnity costs.

The court also found the issues to be of general public importance given the magnitude of the award and the need for appellate guidance on the new costs regime.

The United States of America and the Federal Trade Commission appealed a decision setting aside an ex parte Mareva injunction and Anton Piller order against the respondents, who operated a telemarketing scheme selling Canadian lottery tickets to U.S. residents.

The appellants alleged the respondents engaged in fraudulent misrepresentation by demanding up-front fees.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusions that the appellants failed to establish a strong prima facie case of common law fraud or a real risk of asset dissipation.

The appellants abandoned an application for judicial review and the respondents were awarded costs fixed at $187,682.51 on a partial indemnity basis.

The appellants appealed the costs order, arguing the costs should have been referred for assessment and that the amount was excessive.

The Court of Appeal held that the motions judge did not err in fixing the costs rather than referring them for assessment.

However, the Court found the costs awarded were excessive and not fair and reasonable, noting the amount was virtually the same as a substantial indemnity award and the proceedings relied on the same record as an earlier application.

The appeal was allowed and the costs award was reduced to $63,000.

The moving parties brought motions to quash an appeal from an order that dissolved two earlier orders.

The responding parties argued that the order was a final determination on the issue of standing, making it appealable as of right to the Court of Appeal.

The majority of the Court of Appeal held that the order was interlocutory, as it did not finally dispose of the issue of standing, and granted the motions to quash the appeal.

Borins J.A. dissented, finding the order final as it disposed of the plaintiffs' claim for interlocutory injunctive relief.