David Ezra Lederman

The plaintiffs brought a motion under Rule 60.11(1) of the Rules of Civil Procedure seeking a contempt finding against a former subcontractor who published a press release disclosing confidential business information after being served with an interim injunction prohibiting publication.

The court reviewed the legal test for civil contempt, requiring proof beyond a reasonable doubt that the order was clear, that the alleged contemnor had knowledge of the order, and that the breach was deliberate and wilful.

Evidence showed the respondent had actual knowledge of the injunction yet failed to take reasonable steps to prevent publication of the press release and refused to disclose the recipients of confidential information as required by the order.

The court rejected the respondent’s arguments that the order did not require post-order disclosure or that publication could not be stopped.

The court concluded that the respondent knowingly and wilfully breached the order in both letter and spirit.

The plaintiffs sought a Mareva injunction against the assets of the defendants, specifically a biodiesel plant owned by Great Lakes Biodiesel Inc., alleging that funds were fraudulently conveyed by Verdeo Inc. to the defendants to fund the plant's construction.

In the alternative, the plaintiffs sought interim relief under the oppression provisions of the Business Corporations Act or a certificate of pending litigation.

The court dismissed the motions, finding that the plaintiffs failed to establish a strong prima facie case of a fraudulent conveyance from the intermediary corporations to Great Lakes Biodiesel Inc., and that the balance of convenience did not favour a certificate of pending litigation.

The moving defendants sought to lift restrictions imposed by an earlier order preventing them from disposing of or encumbering property and related equipment pending a motion for a Mareva injunction.

The court characterized the prior order as a consent order reflecting an agreement between the parties, with undertakings that had expired but were subject to extension pending further order.

Applying the RJR‑MacDonald test for injunctive relief, the court found that the plaintiffs had established a serious issue to be tried regarding alleged fraudulent conveyances under the Fraudulent Conveyances Act.

The court also found a real possibility of irreparable harm if the property were encumbered to secure existing liabilities.

The balance of convenience favoured maintaining the restrictions, subject to a limited exception permitting encumbrances for bona fide new financing used in the ordinary course of business.

Following a successful application compelling production of documents, the applicant sought costs including substantial indemnity costs from the date of a Rule 49 offer to settle.

The court held that the offer contained an element of compromise and that the judgment obtained was more favourable than the offer, justifying substantial indemnity costs from the date of the offer.

The court rejected arguments that senior counsel duplication and hourly rates were unreasonable, noting that outdated cost grid guidelines were unrealistic for complex commercial litigation.

Applying a methodology of awarding 60% of actual time for partial indemnity costs and 90% for substantial indemnity costs after the offer, the court found the claimed costs fair and reasonable.

Costs of $100,000 were ordered payable solely by the general partner respondent and not reimbursable by the limited partnership.

The applicant, a limited partner, brought an application for the production of financial records and forecasts from the respondent limited partnership.

The respondents refused, relying on a confidentiality clause in the limited partnership agreement.

The Superior Court of Justice granted the application, finding that while partners can contract out of the right to information provisions in the Limited Partnerships Act, the specific confidentiality clause did not apply to the broader financial documents sought.

The court also held that a limited partner is not required to provide a reason for seeking information to which they are statutorily entitled.

The moving defendants sought a stay of an Ontario action on the basis that the dispute should proceed in Alberta where related litigation concerning unpaid commissions had already been commenced.

The plaintiffs relied on forum selection and governing law clauses in a merger agreement and unanimous shareholders agreement providing for Ontario law and attornment to Ontario courts.

The court held that Ontario had jurisdiction simpliciter and that the contractual forum clauses were entitled to significant weight.

The moving parties failed to demonstrate strong cause to override the forum selection clauses or establish that Alberta was clearly the more appropriate forum.

The motion for a stay based on forum non conveniens was therefore dismissed.

The plaintiff, Apotex Inc., was required to show cause at a status hearing why its action against the defendant should not be dismissed for delay under Rule 48.14(3).

The defendant argued that the plaintiff failed to meet the two-part test from Khan, requiring an acceptable explanation for the delay and proof of no non-compensable prejudice.

The Master applied a contextual approach, finding that ongoing settlement discussions provided a reasonable explanation for the delay.

Although the plaintiff did not fully prove an absence of prejudice, the Master concluded that fairness and the preference for deciding cases on their merits outweighed the delay, allowing the action to continue.

The appellant appealed an order dismissing its motion to stay or dismiss the action on jurisdictional grounds.

The Court of Appeal upheld the motion judge's findings that the dispute did not arise 'in connection with' the Confidentiality Agreement, and therefore the arbitration clause did not apply.

The Court also agreed that there was a real and substantial connection between Ontario and the subject matter of the action, and found no basis to interfere with the motion judge's determination that Ontario was the forum conveniens.

The appeal was dismissed with costs fixed at $10,000.

The appellants appealed an order staying their entire proceeding pending the corporate revival of one of the plaintiffs.

The Court of Appeal dismissed the appeal, holding that the motion judge had the discretion to stay the entire proceeding in the interests of efficiency, as it was preferable for both plaintiffs' actions to proceed together.

The appellant appealed a decision interpreting a commercial lease.

The Court of Appeal upheld the motion judge's finding that the word 'net' in section 2.03(a) of the lease applied to 'Taxes', and that the lease did not require the tenant to pay more than its share of the taxes actually paid under a 'Gross up' argument.

The appeal was dismissed with costs.

The appellants appealed the assessment of a court-appointed receiver's fees and disbursements, including those of its solicitors.

They argued the motion judge exhibited bias, erred in precluding cross-examination of the receiver, and erred in finding the fees fair and reasonable.

The Court of Appeal found no reasonable apprehension of bias.

While the court noted that a receiver's accounts should ideally be verified by affidavit to allow for cross-examination, it held that the questioning permitted by the motion judge was an adequate substitute in this case.

The court upheld the receiver's fees but allowed the appeal in part, remitting the solicitors' accounts for reassessment because the motion judge failed to give them separate consideration.

The appellant, a sub-lessee of commercial space, appealed the dismissal of its application for relief from forfeiture under s. 21 of the Commercial Tenancies Act and s. 98 of the Courts of Justice Act.

The landlord had exercised its right under the main lease to terminate the lease after receiving a request from the tenant to assign the lease.

The Court of Appeal dismissed the appeal, holding that relief from forfeiture is only available where a landlord seeks to enforce a right of re-entry or forfeiture due to a tenant's breach or default.

Because the landlord was exercising a contractual option to terminate rather than responding to a default, the statutory relief provisions did not apply.