David M. Brown

The plaintiffs, selling shareholders in a family-owned group of companies, brought an action against the non-selling shareholders, the companies' lawyers, and accountants.

They alleged breach of fiduciary duty, oppression, and knowing assistance arising from a share redemption transaction.

The plaintiffs claimed the defendants failed to disclose material information regarding the potential sale of a core asset to a third party at a higher value.

The court dismissed the action, finding that the share redemption was a product of self-interested negotiations where both sides had independent advice.

No ad hoc fiduciary duty was owed by the non-selling shareholders, lawyers, or accountants to the plaintiffs, and the plaintiffs' expectations were not reasonable under the oppression remedy.

The applicants sought an ex parte order akin to an Anton Piller order requiring former employees to deliver up personal health information belonging to patients of a medical clinic.

Evidence showed the former employee retained urine drug screen records obtained during employment and attempted to use them to pressure the clinic owner to reinstate her employment.

The court found the applicants established a strong prima facie case, serious potential harm through misuse of personal health information, and clear evidence the respondents possessed the information contrary to the Personal Health Information Protection Act, 2004.

Although the facts did not meet the traditional fourth element of an Anton Piller order regarding risk of destruction, the court granted mandatory injunctive relief under the RJR‑MacDonald test requiring the information to be delivered to an independent supervising solicitor.

In a wrongful dismissal and oppression action, the defendants brought a motion seeking (1) answers to refusals and undertakings arising from the plaintiff’s discovery, and (2) leave to amend their statement of defence and counterclaim.

The refusals related to questions about mitigation efforts following termination.

The court held the questions were relevant and protected by the deemed undertaking rule, and the plaintiff’s confidentiality concerns did not justify refusal in the absence of a confidentiality order or evidentiary basis.

Applying the principles governing amendments under Rule 26.01, the court held the proposed amendments raised tenable causes of action and would not cause non-compensable prejudice.

The plaintiff was ordered to answer the discovery refusals and the defendants were granted leave to amend their counterclaim.

The defendants sought authorization to release additional funds held in trust to pay legal fees incurred in defending litigation involving multiple defendants.

The funds originated from encumbrances placed on residential properties pursuant to a prior consent order permitting borrowing to finance the legal defence of two defendants.

The court was required to determine the proper allocation of legal fees where work performed by counsel benefitted both those defendants and a co‑defendant who was not entitled to access the encumbered property funds.

Applying principles governing payment of legal fees from assets subject to proprietary injunctions, the court concluded that only part of the joint defence work could properly be charged to the trust funds.

The court ordered that the two defendants were entitled to recover 50% of the total legal fees, taxes, and disbursements from the trust account.

In a Commercial List proceeding, defence counsel attempted to schedule a 9:30 a.m. attendance to arrange a motion to set aside a noting in default, but plaintiff’s counsel refused to consent to any scheduling and failed to attend the appointment.

The court addressed the obligations of counsel practicing on the Commercial List, emphasizing the importance of cooperation, communication, and common sense in advancing proceedings efficiently.

The judge criticized the use of counsel’s personal scheduling conflicts as a justification to avoid prompt 9:30 attendances and found the plaintiff’s counsel’s conduct obstructive to the scheduling process.

The court restricted the plaintiff from taking further procedural steps without approval and ordered a peremptory case conference.

The decision reiterates that counsel cannot rely on their calendars to impede the progress of Commercial List matters.

A defendant sought costs following the discontinuance of an action commenced in a different county that duplicated relief already pursued in an existing representative proceeding.

The court considered Rule 23.05 of the Rules of Civil Procedure and the “justified action test” applicable to discontinued actions.

It held the plaintiff had no justification for commencing the second action because it duplicated claims already being advanced in an ongoing Toronto proceeding.

The court characterized the conduct as violating the rule against multiplicity of proceedings and as litigation behaviour warranting sanction.

Substantial indemnity costs were awarded to the defendant despite the absence of formal service of the statement of claim.

A lender brought a motion for summary judgment dismissing claims by a shareholder who sought to set aside corporate loan liability and attribute responsibility to co‑shareholders.

The court held that the shareholder provided no responding evidence and therefore failed to meet the requirement under Rule 20 of the Rules of Civil Procedure to put forward evidence on a summary judgment motion.

The court further found the shareholder lacked standing to challenge the corporation’s indebtedness because the claim belonged to the corporation and no derivative action had been authorized under the Ontario Business Corporations Act.

In any event, the lender was entitled to rely on corporate resolutions and an officer’s certificate under the indoor management rule confirming authority to borrow and grant security.

The action against the lender was dismissed.

The applicant settlor applied to rectify a 1992 family trust indenture, claiming it failed to reflect his original intention to allow for a tax-deferred transfer of assets to his children due to a drafting mistake by his lawyers.

The court dismissed the application, finding the applicant failed to establish his specific tax-planning intention and the alleged mistake on a balance of probabilities.

The court noted the lack of corroborating evidence from the legal advisors who drafted the trust and the ambiguity of contemporaneous documents.

The court provided procedural directions concerning a motion by a former court‑appointed condominium administrator to pass its accounts following its discharge after condominium elections.

The directions set timelines for service of the motion record, notice to unit owners, and procedures for filing objections to the administrator’s accounts.

The court required any objector to serve and file a notice of objection by a specified deadline and set out the mandatory information that must be included in such notice.

The court also held that out‑of‑court cross‑examinations of the administrator would not be permitted, leaving any questioning of the administrator to the judge presiding over the hearing of the passing of accounts.

The applicant sought continuation of interim asset preservation directions issued under s. 126(1) of the Securities Act, which required financial institutions to retain funds held in accounts associated with the respondent corporations.

The court granted a further extension of the directions pending the release of a decision by the securities regulator concerning the underlying matter.

However, the court expressed concern about the informal practice of seeking such extensions without proper motion materials.

It held that future requests under s. 126(5) should be brought by notice of motion supported by affidavit evidence explaining the need for the extension, ensuring that the court can properly assess whether continued asset freezing is justified.

In a receivership proceeding, the receiver sought an order compelling a principal of a related company to provide access to a database and financial valuation model used in the debtor’s solar project business.

The respondents argued that the database and model were owned by an affiliated entity and protected by copyright, and therefore did not need to be delivered to the receiver.

The court held that under the standard Model Receiver Appointment Order, “Records” include any documents or electronic data related to the debtor’s business or affairs, regardless of ownership.

Because the database and valuation model contained information directly related to the debtor’s projects and financial performance, the respondents were required to grant the receiver immediate access and copies.

The motion was granted and the respondents were ordered to comply with the appointment order provisions.

A creditor moved to dismiss a trustee’s fraudulent preference motion under s. 95 of the Bankruptcy and Insolvency Act as statute‑barred.

The trustee argued that the two‑year limitation period under the Limitations Act, 2002 was suspended while an appeal from the bankruptcy order was pending due to the automatic stay under s. 195 of the BIA.

The court held that the BIA stay pending appeal does not suspend or extend the limitation period under the Limitations Act, 2002.

Because the trustee commenced the preference motion more than two years after the bankruptcy order, the claim was statute‑barred.

In obiter, the court further held that if the settlement payments had been voided as preferences, the creditor would have been entitled to file a proof of claim for the full amount of its original judgment rather than the compromised settlement amount.

The plaintiff university brought an action against its former Assistant Vice-President and others for deceit, conversion, and conspiracy, alleging a false invoicing scheme and misappropriation of university resources for personal home improvements.

The defendants moved for summary judgment, arguing the action was barred by a full and final release executed upon the employee's termination, and that a property transfer was not a fraudulent conveyance.

The plaintiff moved for a Mareva injunction, an Anton Piller order, and certificates of pending litigation.

The court dismissed the defendants' summary judgment motions, finding genuine issues requiring a trial regarding the scope and validity of the release (due to alleged fraudulent concealment) and the intent behind the property transfer.

The court dismissed the plaintiff's motion for a Mareva injunction, finding insufficient evidence of a risk of asset dissipation, but granted certificates of pending litigation against the two residential properties.

The plaintiff railway company sought an ex parte interim injunction to restrain protestors from blockading its Toronto-Montreal main line.

The protestors, who were members of a First Nation, claimed to be showing support for First Nations chiefs in an upcoming meeting with the Prime Minister.

The court granted the injunction, finding that the plaintiff had established a strong case of trespass and tortious interference, and that the blockade was causing irreparable harm to the plaintiff and its customers.

The court held that neither the expressive nature of the protest nor the aboriginal identity of the protestors altered the balance of convenience, which overwhelmingly favoured the plaintiff.

The applicants sought the sale of three groups of commercial properties owned jointly by different branches of the Battista family.

The respondents opposed the open market sale, arguing for a 'Fundamental Understanding' that gave family members a right of first offer or refusal.

The court found no such understanding existed and that the relationship between the family members had irreparably broken down, causing a deadlock in the management of the properties.

The court ordered a court-supervised sale of all properties on the open market without any right of first refusal, allowing all parties to bid.

The plaintiff railway company sought to continue an interim injunction restraining aboriginal protesters from blockading its spur line.

The blockade was causing irreparable economic harm to the plaintiff and its customers.

The local police had refused to enforce the initial injunction, citing a desire to negotiate a peaceful resolution and maintain goodwill with the aboriginal community.

The court found that the protesters were trespassing and that the balance of convenience favoured the plaintiff.

The court continued the injunction, removing a clause that explicitly recognized police tactical discretion, but declined to schedule contempt proceedings due to the police's unwillingness to enforce the court's orders.

A motion was brought in a receivership proceeding to lift a stay of proceedings to permit continuation of a construction lien action and allow the lien claimant to set the action down for trial before the statutory expiry of the lien.

The receiver did not oppose lifting the stay but sought conditions, including setting aside a default judgment and noting in default entered against the debtor shortly after the receivership order.

The court held that the default judgment had been obtained contrary to the stay imposed by the appointment order and therefore had no force or effect.

Applying principles governing the lifting of insolvency stays and balancing prejudice to the parties, the court concluded that it was appropriate to lift the stay subject to conditions.

The court ordered that the noting in default and default judgment be set aside and permitted the receiver to defend the lien action.

The plaintiff railway company brought an ex parte motion for an interim injunction to restrain protesters from blocking its Spur Line on the Chippewa of Sarnia First Nation Reserve.

The protesters were blocking the tracks to protest federal legislation (Bill C-45).

The court applied the RJR-MacDonald test and found a serious issue to be tried regarding trespass, irreparable harm due to significant economic disruption, and that the balance of convenience favoured the plaintiff since the protest was directed at the federal government, not the property owner.

The court granted the interim injunction for a limited duration.

The defendant, Impark, brought a motion to enforce an interim settlement agreement regarding the remittance of parking lot revenues by the plaintiff, Precise.

The dispute centered on whether the settlement agreement's fee deduction arrangement applied retroactively to the months of September and October 2012.

The court applied principles of contractual interpretation, considering the factual matrix and the specific language used in the agreement.

The court concluded that the future-looking language and the reference to Precise altering its 'current practice' indicated the parties intended the arrangement to apply prospectively from November onwards.

The motion was dismissed.

The judgment creditor sought the appointment of a receiver in aid of execution over the debtor’s assets after the debtor failed to pay a substantial judgment arising from a settlement agreement.

The court found extensive evidence that the debtor had structured his financial affairs through closely‑held corporations and family arrangements to obstruct enforcement, including placing mortgages on assets, refusing to produce financial records, and channeling benefits through corporations while claiming little personal income.

The court also found troubling evidence suggesting that the debtor’s spouse participated in attempts to create secured claims and judgments designed to defeat other creditors.

Given the debtor’s obstruction of examinations, failure to comply with garnishment obligations, and complex corporate arrangements shielding assets, the court held that ordinary enforcement mechanisms would be ineffective.

A receiver in aid of execution was therefore appointed with investigative powers to examine the debtor’s interests and financial dealings.