David Milosevic

The appellant homeowners' action was administratively dismissed for delay under r. 48.14(1) of the Rules of Civil Procedure because it was not set down for trial within five years of commencement.

The motion judge declined to set aside the dismissal, applying the Reid factors and finding insufficient evidence to explain the delay, with inferred prejudice where examinations for discovery had not occurred.

The Court of Appeal found no palpable and overriding error in the motion judge's reasoning, noting that the appellants bore the primary responsibility for their action's progress and that the delay was moving into the realm of 'inordinate' once the five-year mark was crossed.

The decision concerns claims by the plaintiffs to set aside various transfers of property, shares, and a trademark by the defendant Pooniah Soundrarajan to family members and related companies, on the basis that they were fraudulent conveyances intended to defeat creditors, and also claims of oppression and unjust enrichment.

The court reviews the evidence for badges of fraud, the timing and context of the transfers, and the adequacy of consideration.

The court grants a non-suit on the claim regarding the transfer of the matrimonial home but finds a prima facie case regarding the share and trademark transfers and oppression, ultimately declaring those transfers void as against the plaintiffs.

The Court of Appeal for Ontario allowed the appeal of J.P. Thomson Architects Ltd., holding that the application judge erred in interpreting the dispute resolution clause (GC18) in the parties’ contract.

The Court found that GC18 did not require mediation to be sought within 30 days of a dispute arising, but rather set a minimum 30-day period for informal resolution before mediation could be requested.

The Court also held that the application judge erred by making findings about the scope of the parties’ dispute, which should have been left to the arbitrator.

The Court ordered mediation to proceed within 60 days, with the right to seek arbitration preserved.

This decision concerns a dispute over millions of dollars lent to Trip Support Inc., a failed “Book Now, Pay Later” airline ticket financing business.

The plaintiffs sought a contempt order for the defendants’ failure to disclose assets as required by a Mareva injunction, while the defendants moved to set aside the injunction for inadequate disclosure by the plaintiffs.

The court found the defendants in contempt for failing to disclose Spanish property, but also set aside the Mareva injunction due to the plaintiffs’ significant omissions in their ex parte motion materials.

The decision addresses the standards for contempt and the duty of full and frank disclosure in urgent injunction proceedings.

This is an appeal from a Superior Court judgment that found the appellants liable for fraudulent misrepresentation and pierced the corporate veil.

The underlying dispute involved a three-way agreement for medical gloves, where the appellants, acting as distributors, failed to deliver a significant portion of goods and misrepresented their "factory direct" relationship with the manufacturer.

The trial judge found the appellants engaged in fraudulent misrepresentation in Canada, leading to the plaintiff's losses, and held the individual principals personally liable.

On appeal, the appellants challenged the application of the corporate veil piercing test, the trial judge's distinction between Canada-based and China-based fraud, and the costs award.

The Court of Appeal dismissed the appeal, affirming that fraudulent misrepresentation constitutes "conduct akin to fraud" for piercing the corporate veil, that the trial judge's analysis of distinct frauds was within the pleadings, and that the costs award was a discretionary matter warranting no interference.

The plaintiff sought to certify a class action alleging breach of fiduciary duty, knowing assistance, and knowing receipt against investment advisors and their associated companies.

The claims arose from the defendants' recommendation of investments in Invoice Payment System Corporation (IPS), a company in which the advisors had a significant undisclosed ownership stake and from which they received commissions.

While the Court of Appeal had previously found the pleadings disclosed a cause of action for a class-wide fiduciary duty, this court dismissed the certification motion.

The court found that the proposed common issues regarding the existence, nature, and breach of a class-wide fiduciary duty could not be determined in common across the class, as individual inquiries into each client's specific circumstances, level of trust, reliance, and understanding of disclosures were necessary.

Consequently, the claims for knowing receipt, knowing assistance, and remedies also failed the certification test.

The plaintiff sought a last-minute adjournment of a trial scheduled for May 27, 2024, after retaining new counsel on the morning of trial.

The plaintiff had previously been ordered to proceed peremptorily after his former counsel was removed from the record.

The court applied the Khimji factors and denied the adjournment, finding significant prejudice to the defendant, who had been waiting for trial since 2022, and emphasizing the need to enforce court orders and maintain the administration of justice.

This is an appeal from the Divisional Court, which upheld a certification judge's decision that a class action claim for breach of fiduciary duty against investment advisors did not disclose a cause of action.

The Court of Appeal for Ontario examined whether the claim adequately pleaded an ad hoc fiduciary relationship, considering factors beyond just professional rules.

The Court found that the lower courts erred by narrowly interpreting the pleading, and that the claim, taken as a whole, sufficiently pleaded vulnerability, trust, reliance, and discretion, in addition to breaches of professional standards.

The appeal was allowed, declaring that the claim did disclose a cause of action for breach of a class-wide fiduciary duty, and the matter was remitted for redetermination of other certification criteria.

The appellant, Trillium Power Wind Corporation, appealed the dismissal of its claims for misfeasance in public office and spoliation against the Ontario government.

The claims arose from the abrupt cancellation of offshore wind power projects and the subsequent destruction of government documents.

The Court of Appeal upheld the dismissal of the misfeasance claim, finding no evidence that the moratorium announcement was timed to injure the appellant or that the appellant suffered damages.

However, the court allowed the appeal regarding the spoliation claim, finding that the deliberate destruction of relevant government documents, even under a general policy, constituted spoliation and an abuse of process.

Despite this, no damages were awarded for spoliation as the appellant could not prove it suffered any, but the appellant was granted costs of the appeal and Ontario was deprived of its costs below.

The plaintiffs brought an urgent, without-notice motion for a Mareva injunction and Norwich order against the defendants, alleging a fraudulent investment scheme.

The defendants, including Richard Nicholson and his company NWR Financial Group, allegedly induced the plaintiffs to invest USD $670,000 in a non-existent hedge fund, Legacy Investors Group Inc., promising high returns.

The court found a strong prima facie case of fraud, evidence of asset dissipation by Nicholson (e.g., luxury purchases, sale of home), and that the balance of convenience favoured granting the injunction to preserve assets.

The court also granted the Norwich order, finding that the five factors for disclosure from non-party financial institutions were met, as they were the only practical source of information regarding the flow of funds.

The appellants appealed a summary judgment requiring them to pay damages to the respondent, Rosehaven Homes Limited, for failing to complete an agreement of purchase and sale for a new home.

The appeal focused on the motion judge's admission and reliance on Rosehaven's expert report concerning property valuation and Rosehaven's mitigation efforts.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision to admit and rely on the expert report, noting it was verified by affidavit and the appellants did not object or provide competing admissible evidence.

The court also found no palpable and overriding errors in the assessment of Rosehaven's mitigation efforts or the quantification of damages.

The plaintiffs appealed an Associate Judge's order dismissing their motion to strike the defendants' statement of defence for alleged failure to answer undertakings as required by consent orders.

The plaintiffs also sought leave to appeal the $20,000 costs award.

The Superior Court of Justice dismissed the appeal, finding that the Associate Judge made no palpable and overriding errors of fact or errors of law in concluding that the defendants had made reasonable efforts to comply with the undertakings.

Leave to appeal the costs order was also denied as there was no error in principle.

The defendant in a proposed class action brought a motion to strike the plaintiff's expert evidence filed in support of certification.

The proposed class action alleged the defendant trust company breached its duties regarding syndicated mortgages held in registered savings accounts.

The court granted the motion to strike the expert's evidence in its entirety, finding the expert was not qualified, lacked independence, acted as a partisan advocate, and improperly provided legal argument and opinions on ultimate issues beyond his expertise.

The plaintiff brought a motion to certify a class action against a trust company that acted as the trustee for registered savings accounts through which class members invested in syndicated mortgages.

The syndicated mortgages, promoted by a third-party developer, failed, resulting in significant losses.

The plaintiff alleged the trust company breached trust, fiduciary, contractual, and common law duties by failing to ensure the mortgages were fully secured and qualified investments under the Income Tax Act.

The court dismissed the certification motion, finding it plain and obvious that the pleadings disclosed no reasonable cause of action, as the trust company did not undertake the alleged gatekeeper duties.

The court also found the proposed omnibus class action failed the common issues, preferable procedure, and representative plaintiff criteria.

The plaintiff sought costs on a substantial indemnity basis following a trial judgment in its favour for fraudulent misrepresentation.

The defendants argued for partial indemnity costs.

The court found that while the defendants engaged in fraudulent misrepresentation, it was not the egregious conduct that typically warrants substantial indemnity costs.

Exercising its discretion under section 131 of the Courts of Justice Act, the court awarded costs to the plaintiff at a mid-point between partial and substantial indemnity, fixed at $100,000 all-inclusive.

The applicants sought an order directing the substituted buyer to transfer title of a pre-construction property to them.

The respondent had assigned his Agreement of Purchase and Sale to the applicants but failed to seek the builder's consent or pay the required fees.

Instead, as the property value rose, the respondent amended the agreement to substitute his realtor's wife as the buyer.

The court found that the respondent breached his duty of good faith by failing to take reasonable steps to complete the assignment.

The court ordered the substituted buyer, who held title in trust, to transfer the property to the applicants upon payment of the originally agreed purchase price.

This case concerns a claim for fraudulent misrepresentation and breach of contract related to the purchase of personal protective equipment (PPE).

Following a prior summary judgment against one defendant for breach of contract, the court proceeded to trial to determine fraud claims against the corporate principals and a related company.

The court found that the individual defendants, as directing minds of the primary corporate defendant, made knowing false representations about a "factory direct" relationship with the PPE manufacturer and the direct transfer of funds, thereby inducing the plaintiff to enter the agreement and suffer financial loss from undelivered goods.

The court pierced the corporate veil, holding the individual defendants and a sister company jointly and severally liable for the fraudulent misrepresentation.

The parties entered into a talent acquisition agreement where the defendant agreed to hire a team of employees from the plaintiff.

The plaintiff brought an action for breach of contract, claiming the defendant failed to make two subsequent payments and incurred termination expenses after the defendant terminated several of the hired employees without cause.

Both parties moved for summary judgment.

The court granted the defendant's motion and dismissed the action, finding that the plain wording of the agreement conditioned the subsequent payments on the retention of the employees.

The court also rejected the plaintiff's argument that the defendant breached its duty of good faith, noting the terminations were a result of the COVID-19 pandemic.

The plaintiffs brought a motion to strike the defendants' statement of defence, alleging a failure to answer undertakings from earlier court orders regarding the production of financial statements, tax returns, and bank records.

The court found that the defendants had either answered or used best efforts to answer the undertakings, such as requesting documents from the CRA, accountants, and banks.

The motion was dismissed, and the plaintiffs were ordered to pay $20,000 in costs due to the disproportionate expense incurred on the motion.

The plaintiff brought a motion to discontinue a proposed class action against Olympia Trust Company regarding a syndicated mortgage loan investment.

The plaintiff had subsequently commenced an Omnibus Action against the same defendant on behalf of investors in 54 projects, which included the claims from the immediate action.

The court granted the motion to discontinue the action without costs and without requiring notice to putative class members, finding that the immediate action was redundant and the class members' interests were protected by the Omnibus Action.