David Milosevic

A Paraguayan pension fund sued over a multi-year fraudulent investment scheme involving shell corporations, forged and misleading investment materials, secret kickbacks to insiders, and concealment of the true nature of several Canadian investments.

The court found that the moving parties’ funds were diverted through Genesis, First Canadian, Union, and Columbus Note structures by deliberate fraudulent misrepresentations, breaches of fiduciary duty, knowing assistance, and knowing receipt.

The court imposed liability for over $20.8 million in damages against the principal fraud actors, declared broad constructive trust and tracing remedies, and awarded punitive damages against the principal individual wrongdoers.

Additional liability was imposed against parties involved in the Columbus Notes transactions, and full indemnity costs were awarded to the plaintiff, with substantial indemnity costs on Union Securities’ cross-claim.

This endorsement addresses a request for costs "thrown away" due to the adjournment of a trial date.

The applicant had requested the adjournment, and the respondent sought costs.

The court found that the adjournment was caused by the applicant's failure to adhere to a consent timetable for pleadings.

While the delay was not wilful, the respondent was entitled to costs thrown away.

The court clarified what constitutes "costs thrown away" in this context, excluding work done prior to the specific adjournment for which costs were sought.

Costs were fixed at $1,000.00 on a partial indemnity basis.

Following a motion where the defendants successfully vacated a certificate of pending litigation, the defendants sought costs of $73,579.49 payable forthwith.

The plaintiff argued that costs should be in the cause and in a lower amount due to the public interest nature of the proposed class action.

The court held that while the defendants were successful, the plaintiff's initial pursuit of the remedies was not unreasonable, and the defendants had delayed in bringing their motion.

The court exercised its discretion to order costs in the cause.

In a proposed class action regarding promissory note investments, the plaintiff obtained a Norwich Order, Mareva Injunction, and a certificate of pending litigation without notice.

The moving defendants brought a motion to discharge the certificate of pending litigation and for damages.

The court found that while the initial ex parte orders were justified, the certificate of pending litigation should be discharged because the plaintiff's claim was essentially monetary and there was no close connection between the property and the alleged improper benefits.

The issue of damages for the registration of the certificate was deferred to trial.

The appellant, a debt collector, was laid off when the respondent lost its contract with Capital One.

The respondent subsequently received a $6.675 million settlement from Capital One.

The appellant brought a class action alleging the respondent breached employment contracts by failing to pay commissions on the settlement payment.

The motion judge granted summary judgment dismissing the class action.

The Court of Appeal upheld the dismissal, finding that the motion judge did not err in interpreting the Commission Agreement as requiring employees to exceed a "breakeven" financial target to earn commissions, which laid-off employees could not satisfy.

The court also found no error in the motion judge's interpretation of the Settlement Agreement and upheld the use of summary judgment as an appropriate procedure.

The plaintiff sought a status hearing under Rule 48.14(5) of the Rules of Civil Procedure to establish a timetable for the action and extend the time to set it down for trial.

The motion was opposed by two defendants, Sulekha Patel and Nikita Patel.

The court applied the two-part test for contested status hearings, requiring the plaintiff to provide an acceptable explanation for delay and demonstrate that the defendants would suffer no non-compensable prejudice.

The court found the plaintiff's explanation, citing corporate financial and organizational difficulties, to be adequate.

It also determined that the opposing defendants had not suffered non-compensable prejudice, partly due to their own inaction during periods of delay.

The motion was granted, and a case conference was ordered to set a timetable for the remaining steps, including a potential summary judgment motion, discoveries, and mediation.

Costs were ordered to be borne by each party.

The Garcia Defendants brought a motion for security for costs against the plaintiff, a Paraguayan pension fund, under Rule 56.01(1)(a).

The plaintiff, ordinarily resident outside Ontario, argued it had sufficient assets in Ontario, that the defendants delayed the motion, that the defendants' conduct increased costs, and that it had a meritorious case.

The court found the plaintiff's alleged Ontario assets were not unrestricted, and the defendants' explanation for delay was unreasonable.

Considering the plaintiff's substantial assets in Paraguay, the enforceability of a judgment there, the contractual relationship between parties, the defendants' counterclaim, and the defendants' vexatious conduct and unreasonable delay, the court dismissed the motion for security for costs.

The plaintiff brought a motion under Rule 49.09 seeking an order declaring that a previous motion was settled according to a draft order.

The court found that no binding settlement agreement had been reached.

Although the parties had exchanged drafts, they had also agreed that the document needed to be "cleaned up" for final review and client sign-off.

A material change was inadvertently made by the plaintiff's counsel in the "cleaned up" draft, which the defendants' client subsequently rejected.

The court emphasized that a binding agreement requires mutual intention on all essential terms and that, in this case, the final form of the draft order had not been settled, and client consent was consistently required.

The plaintiff's motion was dismissed.

Following the dismissal of a class action on a summary judgment motion, the successful defendant sought costs on a substantial indemnity basis due to a rejected settlement offer and unfounded allegations of fraud.

The plaintiff argued no costs should be awarded due to the defendant's conduct.

The court rejected both extreme positions, awarding costs to the defendant on a partial indemnity basis.

After adjusting the hourly rates to conform to the grid and deducting a prior costs award owed to the plaintiff, the court fixed the net costs payable by the representative plaintiff at $63,787.

The plaintiffs brought a motion for summary judgment against the defendant, a former employee and son-in-law, who defrauded the plaintiffs' accounting firm of $342,170.22 by diverting client payments to a sham bank account.

The defendant sought to amend his statement of defence to plead that the claim was statute-barred under the Limitations Act, arguing the plaintiffs ought to have discovered the fraud earlier.

The court granted the amendment but found no evidence to support the limitation defence.

Summary judgment was granted for the full amount of the diverted funds, plus $50,000 in punitive damages for the defendant's deceitful and high-handed conduct.

A Mareva injunction was also extended to assist with enforcement.

Following a motion on the admissibility of evidence in a family law arbitration, the successful applicant sought costs on a full recovery basis and costs thrown away due to the adjournment of the arbitration.

The court awarded significant costs for the motion, noting the complexity of the issues, but declined to order full recovery as neither party acted unreasonably.

The request for costs thrown away was dismissed because the interruption did not warrant such an order and the applicant relied on estimates rather than actual costs.

The representative plaintiff brought a class action on behalf of debt collectors who were temporarily laid off when Global Credit's largest client, Capital One, terminated its collection agreement.

Following the termination, Capital One paid Global a $5.7 million settlement.

The plaintiff claimed the class members were contractually entitled to a 15 percent commission on this settlement, arguing it was compensation for post-dated cheques returned to Capital One.

On cross-motions for summary judgment, the court dismissed the action, finding that the settlement was not compensation for the post-dated cheques and that commissions were only payable if individual monthly breakeven targets were met, which did not occur.

In an ongoing family law arbitration regarding property valuation, the moving party husband sought to introduce 2015 year-end financial statements.

The arbitrator adjourned the hearing to allow the parties to seek direction from the Superior Court on the admissibility of the documents under section 6.1 of the Arbitration Act.

The court reluctantly accepted jurisdiction due to the parties' consent and the unique circumstances.

The court dismissed the motion, finding the documents were inadmissible hearsay as the author was not being called as a witness and the arbitration agreement limited witnesses to the parties' experts.

The appellants appealed a summary judgment decision that found the respondents successfully exercised a Put-Right option in an asset purchase agreement.

The option allowed the respondents to compel the appellants to purchase their shares for $3.00 a share.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusions that the option was part of a bilateral contract, that the respondents substantially complied with notice provisions, and that the failure to provide section 116 Income Tax Act certificates was not a precondition to exercising the option.

The remedy of $600,000 and specific performance was upheld.

The plaintiff brought a motion for certification of a proposed class action on behalf of former employees seeking commissions allegedly owing on post‑dated collections following mass layoffs by the defendant debt collection company.

The claim alleged breach of contract and unjust enrichment arising from the defendant’s return of certain collections to a client rather than paying commissions to employees.

After discussion with the court, the parties consented to certification with revised pleadings, class definition, and common issues.

The court independently assessed the requirements under s. 5 of the Class Proceedings Act, 1992 and found the criteria satisfied, including an identifiable class, common issues, and a suitable representative plaintiff.

Certification was granted and the court fixed costs payable to the plaintiff in the amount of $25,000 in any event of the cause, payable after the defendant’s upcoming summary judgment motion.

The plaintiffs brought a motion for summary judgment against the defendants Sablo and Shamrock for failing to purchase their common shares in Crown William pursuant to a 'Put-Right' option in an Asset Purchase Agreement.

The defendants argued the plaintiffs did not properly exercise the option and that the action was premature.

The court found that the plaintiffs substantially complied with the notice requirements, that a prior release by one plaintiff did not bar her claim, and that the provision for a section 116 Income Tax Act certificate was not a condition precedent.

Summary judgment was granted in favour of the plaintiffs for $600,000.

A shareholder dispute arose during implementation of a prior court order directing valuation of a company and providing one shareholder an option to purchase the other’s shares.

The applicant sought to replace the process with a buy/sell mechanism and contested the information to be provided to the court‑appointed appraiser, while also attempting to rely on a personal net worth statement of the respondent obtained from family law proceedings.

The court held that the appraiser should be free to evaluate all information provided by the parties and declined to prescribe limits on materials submitted.

The request to replace the previously ordered process with a buy/sell arrangement was refused, though the court varied timelines to complete the valuation.

The court also ruled that the inadvertently disclosed net worth statement remained privileged and could not be relied upon.

Following an earlier order directing the valuation of corporate shares in a closely held company and granting one shareholder an option to purchase the other’s shares, the parties were unable to agree on the appointment of a business valuer and real estate appraiser or on the terms of their mandate.

The court provided procedural directions establishing a structured nomination and selection process for both professionals, including nomination lists, conflict‑of‑interest objections, and a ranking system to determine appointments.

The court further directed that the valuer conduct the valuation of the company as a going concern without applying a minority discount and that the appraiser’s investigative recommendations be coordinated through the valuer.

Professional fees were ordered to be borne by the company.

A deadline was imposed for completion of the valuation and appraisal.

The defendant brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the statement of claim for disclosing no reasonable cause of action.

The plaintiff alleged the tort of intentional infliction of mental distress based on two incidents: the defendant’s alleged failure to notify him of their father’s deteriorating medical condition before death, and the defendant’s exclusion of him from participation in the planning and conduct of their father’s funeral.

The court held that the alleged omission to communicate the father’s condition constituted inaction and could not ground the intentional tort alleged.

The court further held that disputes about participation in funeral arrangements and intra‑familial grievances of this nature are not appropriate for judicial adjudication and do not give rise to a cause of action for intentional infliction of mental distress.

The statement of claim was therefore dismissed.

The applicant sought repayment of funds allegedly held in a foreign exchange trading account maintained with the respondent trading platform.

The respondent claimed the account had a negative balance due to improper trading practices and alleged retroactive losses arising from trades purportedly closed by a liquidity provider more than a month after the original transactions.

After reviewing account records, journal logs, and expert evidence, the court found the disputed trades were not the result of improper trading and that the alleged later closings did not occur.

The court concluded the respondent manipulated records to fabricate losses and retroactively adjust the account balance.

The applicant was awarded damages equal to the account balance shown in the earlier statement, an unpaid contractual bonus, and punitive damages.