David E. Wires

The plaintiffs sought leave to appeal an interlocutory order dismissing their motion for summary judgment to enforce an Illinois judgment.

The motion judge had found a genuine issue for trial based on a novel defence: the loss of a meaningful opportunity to be heard, stemming from the plaintiffs' conduct in obtaining ex parte orders in Canada that financially ruined the defendants.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of recognizing this new defence, as it appeared indistinguishable from the traditional natural justice defence and would require relitigating the foreign action.

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.

The applicants abandoned their application for judicial review of the licensing process under the Public Accountancy Act shortly before the respondents' motion to quash was to be heard.

The respondents sought costs of the application and motion to quash.

The court determined that under the amended Rules of Civil Procedure, there is a presumption that costs should be fixed by the court rather than referred to assessment, unless the case is 'exceptional'.

Finding the case not exceptional, the court fixed costs on a partial indemnity scale, rejecting the respondents' request for substantial indemnity costs as there was no evidence of bad faith or abuse of process.

The respondents were awarded the full amount claimed on a partial indemnity basis.

The appellant appealed a trial judge's decision to strike a jury notice on the grounds of complexity.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's discretion given the multiplicity of causes of action, defendants, heads of damages, and interlocking legal and factual issues.

The appellants represented a class of individuals victimized by a gold delivery fraud, having deposited funds into a solicitor's trust account.

They alleged the Law Society of Upper Canada breached a duty of care by failing to properly investigate and monitor the solicitor's trust account after being notified of irregularities.

The Supreme Court of Canada applied the Anns/Kamloops test and held that the Law Society did not owe a prima facie duty of care to the appellants, who were not clients but participants in a third-party business promotion.

The Court further noted that even if a duty existed, it would be negated by residual policy considerations and the statutory immunity provided under the Law Society Act.

The Crown appealed an acquittal entered on appeal from a provincial offences conviction for practising as a public accountant without a licence.

The court held that a Certified General Accountant who prepared a stub financial statement for a share purchaser, and financial statements knowingly used by a bank, fell outside the management-accountant exemption in s. 34 because he had actual knowledge that third parties would use and rely on the statements.

The court further held that preparation of corporate income tax returns and attached financial statements did not constitute practising as a public accountant because the representations were those of the taxpayer, not the preparer.

A vagueness challenge to the statutory scheme under s. 7 of the Charter failed.

The acquittal was set aside and the conviction restored.

In an intended class proceeding arising from investor losses in a fraudulent gold scheme using a lawyer's trust account, the appellants alleged the regulator negligently failed to properly investigate and intervene after receiving a complaint about the lawyer's conduct.

The Court of Appeal applied the Anns/Kamloops framework and held that, even assuming sufficient proximity, statutory and judicial immunity, together with compelling policy considerations, negated any private law duty of care in negligence in relation to the regulator's investigatory and disciplinary functions.

Those functions were characterized as inherently judicial or quasi-judicial, and absent pleaded bad faith or malice no negligence action could lie.

The Rule 21 order striking the claim was upheld, as were the costs orders.

In an appeal arising from Rule 20 and 21 motions, the appellants challenged an order dismissing their action against the executors of a deceased solicitor's estate arising from losses in a gold delivery contract investment scheme.

The court held that claims fitting within ss. 43 and 44 of the Limitations Act, including pleaded fraud, fraudulent breach of trust, recovery of trust property, accounting, and tracing relief, were not barred by the two-year limitation in s. 38(3) of the Trustee Act.

The court further held that the doctrine of plene administravit could not be determined against the appellants at this stage because it was not plain and obvious that the estate had no assets beyond $7,138, given possible insurance coverage and tracing remedies.

The appeal was allowed on the main dismissal issue, but dismissed as to two related interlocutory orders striking parts of the reply and refusing to strike an affidavit.

The applicant sought special leave to appeal from a summary conviction appeal decision concerning the interpretation of the management accountant exemption in s. 34 of the Public Accountancy Act.

The chambers judge held the proposed appeal raised a question of law alone, and that uncertainty remained in the jurisprudence concerning whether disclosure or intended use of management-prepared statements by third parties could disentitle an accountant to the exemption.

Because the issue was important in the public interest, relevant to the due administration of justice, and likely to recur, special leave to appeal was granted.

The applicant, Gulf Oil Corporation, applied to the Supreme Court of Canada under s. 43 of the Canada Evidence Act to enforce letters rogatory issued by United States courts.

The letters sought the production of documents held by the applicant's Canadian subsidiaries for use in US anti-trust litigation regarding a uranium cartel.

The Canadian government opposed disclosure on public policy grounds, citing the Uranium Information Security Regulations and Canadian sovereignty.

The Court assumed jurisdiction but dismissed the application, holding that it would be a wrongful exercise of discretion to enforce the letters rogatory contrary to the stated public policy of the Canadian government.