David M. Brown

The plaintiff condominium corporation brought a motion for summary judgment against its former property manager and several related companies for fraud, breach of contract, and breach of fiduciary duty.

The plaintiff alleged that the individual defendant orchestrated a massive fraud by rigging the tender process for repair work, falsifying contracts, and submitting invoices for work that was never performed.

The court found that the plaintiff's evidence overwhelmingly established the fraud and that the defendants' responding evidence was of no probative value.

Summary judgment was granted in favour of the plaintiff for over $1.3 million in damages, plus full indemnity costs.

The defendant brought a motion to remove the plaintiffs' counsel, arguing that a settlement agreement from prior litigation prohibited the counsel from acting for certain plaintiffs in this action.

The defendant also sought to strike portions of the statement of claim, alleging a breach of the deemed undertaking rule regarding a disputed document.

The plaintiffs brought a cross-motion to set a timetable.

The court dismissed the defendant's motion, finding that the current claims did not arise directly from the restructuring covered by the settlement agreement and that the deemed undertaking rule did not apply to documents incorporated into a settlement agreement.

The court granted the plaintiffs' cross-motion and imposed a case management timetable.

The appellant tenant appealed a Landlord and Tenant Board decision terminating his tenancy on the basis that the landlord required the unit in good faith for her own use.

The Divisional Court dismissed the tenant's motion to admit fresh evidence and rejected arguments that the Board failed to consider s. 72(2) of the Residential Tenancies Act or erred in its good faith analysis.

The appeal was dismissed, as the tenant failed to identify any error of law.

The applicant sought judicial review of an Ontario Labour Relations Board decision that dismissed his application to review an order to pay outstanding wages under the Employment Standards Act.

The Board had treated his application as abandoned after he failed to attend the hearing or request an adjournment.

The Divisional Court held that the Board reasonably proceeded in his absence pursuant to its rules and found no denial of procedural fairness.

The application for judicial review was dismissed.

Following dismissal of stay and forum non conveniens motions in an application to recognize and enforce a foreign arbitral award, the court determined the appropriate costs award.

The successful applicant sought $65,000 in partial indemnity costs apportioned between the responding corporation and a non‑party that had actively participated in the motion.

The court applied Rule 57 of the Rules of Civil Procedure and the principles of proportionality and fairness articulated by the Court of Appeal, finding the requested amount reasonable given the complexity of the issues and extensive materials filed.

It held that a non‑party that voluntarily participates in litigation to protect its own interests may be liable for costs under s. 131(1) of the Courts of Justice Act.

Costs were fixed at $65,000 and apportioned 75% to the corporate respondent and 25% to the participating non‑party.

A creditor sought an order under s. 163 of the Bankruptcy and Insolvency Act requiring a third party to attend for examination regarding the affairs of a bankrupt estate.

The responding party argued that s. 163(1) did not permit a creditor to conduct such an examination.

The court held that, where the trustee lacks funds and creditors authorize the examination, a creditor’s counsel may conduct the examination in the trustee’s name.

In the alternative, the evidentiary record satisfied the “sufficient cause” threshold under s. 163(2) because the proposed examination concerned potential estate assets and conflicting evidence about corporate ownership and loans involving the bankrupt.

The motion was granted and the third party was ordered to attend for examination.

The applicant, a clinic providing services to victims of domestic violence, brought an application challenging the constitutionality of the federal government's repeal of the long-gun registry under sections 7 and 15 of the Charter.

The respondents moved to strike the application under Rule 21 for disclosing no reasonable cause of action.

The applicant moved for an interlocutory injunction to prevent the destruction of the registry data pending the hearing of the application.

The court dismissed the respondents' motion to strike, finding the claims were not plainly and obviously doomed to fail given the novelty of the issues.

However, the court also dismissed the applicant's motion for an interlocutory injunction, concluding that while there was a serious issue to be tried, the evidence of irreparable harm was weak and the balance of convenience favoured the public interest in the enacted legislation.

In a bankruptcy proceeding, the trustee sought an order permitting employees and retirees of the bankrupt corporation who were creditors to nominate and vote on the election of inspectors at the first meeting of creditors.

Section 113(3) of the Bankruptcy and Insolvency Act generally prohibits employees from voting on the appointment of inspectors unless the court grants permission.

The court considered the circumstances, including that employee severance claims and pension deficit claims constituted a substantial portion of the unsecured creditor claims and that no party opposed the request.

The court concluded it was fair and appropriate to allow employees and retirees who were creditors to participate in the election of inspectors, subject to the standard requirements for filing proofs of claim and vote counting under the Act.

The plaintiff university brought a motion seeking to exclude a defendant from attending the out-of-court cross-examination of a witness whose affidavit supported allegations of fraud and a Mareva-style injunction.

The plaintiff argued the defendant’s presence could harm the witness’s mental health due to prior workplace intimidation and depression.

The court reaffirmed that parties have an inherent right to attend examinations and that exclusion requires proof of realistic and substantial cause, such as demonstrated intimidation or prejudice.

Finding no evidence of intimidation during the litigation and insufficient grounds to justify exclusion, the court dismissed the motion.

To ensure a fair and controlled examination environment, the court ordered the cross-examination to be video recorded.

The defendant brought a motion for leave to withdraw an admission contained in its statement of defence acknowledging that a taxi driver involved in a collision was its employee.

The court applied the three‑part test governing withdrawal of admissions in pleadings: whether the amendment raises a triable issue, whether the admission was inadvertent, and whether the withdrawal would cause non‑compensable prejudice.

The court accepted affidavit evidence explaining that the admission resulted from inadvertence and that discovery evidence suggested the driver was actually the owner and operator of the vehicle.

The court also found no real prejudice to the plaintiff, rejecting arguments that potential loss of access to higher insurance limits constituted prejudice.

Leave to withdraw the admission was granted and costs were reserved.

In a complex Commercial List case management proceeding involving multiple condominium corporations, lenders, and other parties arising from alleged fraud related to loans arranged for condominium corporations, the court addressed whether a previously scheduled separate hearing of a threshold issue should proceed.

The threshold issue concerned whether certain loans were enforceable against the condominium corporations.

Several parties withdrew their earlier consent to bifurcate the proceedings under Rule 6.1.01 of the Rules of Civil Procedure.

The court held that, absent unanimous consent, it lacked jurisdiction to compel a separate hearing of the threshold issue and therefore cancelled the proposed hearing.

The court instead directed that the actions proceed expeditiously to a consolidated trial with a structured discovery process and encouraged mediation.

The moving defendants sought summary judgment dismissing negligence and occupiers’ liability claims arising from an alleged assault between two individuals in a church basement.

The plaintiff alleged church representatives knew of prior threats relating to a private mortgage dispute and failed to warn or protect her, giving rise to vicarious liability and breach of the Occupiers’ Liability Act.

The court held that credibility disputes concerning alleged prior threats and communications with church representatives required viva voce evidence and could not be resolved on a summary judgment record.

However, the plaintiff adduced no evidence linking the national church corporation to the events or establishing vicarious liability against it.

Summary judgment was therefore granted dismissing the claim against that corporation but refused as against the local church.

The court heard two separate motions to strike or stay pending summary judgment motions on the Commercial List.

Applying the principles from Combined Air and the proportionality requirements of the Rules of Civil Procedure, the court held that concerns about the appropriateness of summary judgment motions should be addressed through case management rather than formal motions to strike.

The court reviewed the proposed summary judgment motions in both actions and concluded that neither was an appropriate candidate for summary judgment due to the complexity of the issues, the voluminous records, and the need for a full trial to appreciate the evidence.

Both summary judgment motions were directed not to proceed, and the parties were ordered to prepare for trial.

Competing applications sought declarations regarding when interest began accruing on a promissory note issued as part of consideration for a receiver-approved asset sale.

The note holder argued that interest accrued from the asset purchase agreement’s final closing date, while the issuer sought rectification of the note to reflect a court‑approved amended form that tied interest payments to the note issuance date.

The court held the issuer had mistakenly issued an outdated form of note contrary to the prior court order approving the amended form.

Rectification was granted so the issued note conformed to the court‑approved amended note.

Interest therefore began accruing only once the note was issued following the priorities order identifying the noteholder and principal amount.

The plaintiff receiver moved for summary judgment against several corporate defendants and the estate of Sylvia Hyde for breach of a settlement agreement related to a bankruptcy proof of claim.

The estate trustees brought a cross-motion for summary judgment dismissing the action.

The court found that the documentary record and conflicting affidavit evidence did not allow for a full appreciation of the issues, particularly regarding Sylvia Hyde's knowledge and participation in the settlement.

Applying the full appreciation test, the court dismissed both motions for summary judgment and directed that the matter proceed to an expedited trial.

Application for a final order approving a corporate plan of arrangement under s. 182 of the Ontario Business Corporations Act.

The proposed transaction involved the acquisition and division of assets of the corporation among related entities, with shareholders receiving a combination of cash and shares.

The court reviewed the governing framework established in BCE Inc. v. 1976 Debentureholders, requiring that the transaction constitute an arrangement, comply with statutory and court-ordered procedures, be proposed in good faith, and be fair and reasonable.

Evidence showed overwhelming shareholder approval, provision of dissent rights, and oversight by an independent special committee with fairness advice.

The court concluded the arrangement had a valid business purpose and fairly balanced the interests of affected stakeholders.

In Companies’ Creditors Arrangement Act proceedings, the applicant debtor entities sought authorization to pay pre-filing invoices owed to a foreign supplier of critical components necessary for ongoing aerospace manufacturing.

The supplier had refused to continue supplying goods despite a critical supplier provision in the initial CCAA order requiring continued supply.

The court reviewed the jurisprudence recognizing inherent jurisdiction to authorize payment of pre-filing obligations to critical suppliers where necessary to maintain operations during restructuring.

Given the debtor’s dependence on the supplier, the lack of alternative sources, the risk to a major customer’s production lines, and the monitor’s support, the court held that business realities justified authorizing payment notwithstanding concerns about rewarding the supplier’s non-compliance with the order.

A municipal government brought a motion for leave to intervene as a friend of the court in a Charter application challenging federal legislation repealing the long‑gun registry and mandating destruction of registry records.

The underlying application alleged the repeal violated ss. 7 and 15(1) of the Charter by increasing risks of domestic violence against women.

The court considered the principles governing intervention under Rule 13.02 of the Rules of Civil Procedure, including whether the proposed intervenor had a real and identifiable interest, a distinct perspective, or relevant expertise.

The court found the municipality had demonstrated a substantial interest in firearm‑related public safety and domestic violence issues and could provide assistance on the public interest component of the injunction analysis without expanding the evidentiary record.

Leave to intervene was granted subject to limitations on evidence, length of submissions, and costs.

Following the dismissal of the plaintiffs' oppression action after a hybrid trial, the successful defendants sought partial indemnity costs.

The plaintiffs argued that each party should bear its own costs because the defendants' unlawful conduct provoked the litigation.

The court rejected this argument, finding the defendants were entitled to costs.

The court also addressed the novel issue of whether costs for preparing affidavits and cross-examinations for pre-trial motions are recoverable when that evidence is subsequently used in a hybrid trial.

The court held that such costs are recoverable to the extent the work product was material to the trial issues, to encourage the use of hybrid trials.

The court fixed EnGlobe's costs at $200,232.47 and Busseri's costs at $116,321.99.

A state-owned corporation moved to set aside an Ontario order recognizing and enforcing an international arbitral award against a foreign state and alternatively sought a stay of related execution proceedings on forum non conveniens grounds.

The moving party argued it was a person affected by the judgment because enforcement steps sought to seize shares it claimed to own.

The court held that a non-party claiming a proprietary interest in assets subject to execution does not have standing under Rule 38.11 to attack the underlying judgment against the debtor state.

The court further held that the moving party failed to establish that a foreign jurisdiction was clearly a more appropriate forum to determine ownership of shares issued by an Ontario-headquartered corporation for purposes of enforcing the judgment.

Both motions were dismissed.