David Postel

The appellants sought to advance a new theory regarding a 15-degree bend in the property boundary line between their lot and the respondent's lot on Jack Lake.

This theory was based on new expert evidence obtained after the Court of Appeal's 2020 decision, which had remitted the matter back to the Superior Court to determine the location of the water's edge in 1902 and related issues.

The motion judge dismissed the appellants' second application as a collateral attack on the 2020 order.

The Court of Appeal upheld this dismissal, finding the second application constituted an abuse of process because the bend theory could and should have been raised in the original application.

The court also rejected the appellants' alternative motion to vary the 2020 order.

The appellants, limited partners in a family-owned limited partnership, appealed the dismissal of their application seeking a declaration that they were entitled to an annual cash distribution of 100% of the partnership's net income.

They argued that section 11(1) of the Limited Partnerships Act and the Accumulations Act mandated such distributions, overriding the general partner's discretion under the limited partnership agreement.

The Court of Appeal dismissed the appeal, holding that the right to a 'share' of profits under the Act does not equate to a statutory obligation to make annual payments, and that the Accumulations Act does not apply to commercial endeavours.

The appellants, Charles McVety and Canada Christian College, appealed a motion judge's decision to dismiss their anti-SLAPP motion against a defamation action brought by Kory Teneycke and Rubicon Strategy Inc. The defamation claim alleged that McVety publicly stated Teneycke acted in a conflict of interest regarding Ontario's vaccine passport policy and profited from it, and that Teneycke was prejudiced against Christians.

The motion judge found substantial merit to the defamation action and that the appellants had no viable defences, partly due to potential malice, and that the public interest favored allowing the action.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's analysis of the claim's merits and defences, and while agreeing the balancing analysis was flawed, a fresh analysis led to the same conclusion that the public interest in allowing the action outweighed the public interest in protecting the appellants' expression, given the low quality and malicious motivation of the speech.

The request for leave to appeal costs was also dismissed.

This is a costs endorsement from the Court of Appeal for Ontario concerning multiple appeals and a motion.

The court ordered that all parties bear their own costs for the appeals and the motion before the lower court, indicating a balanced outcome on the issue of costs.

This appeal addresses whether limited partners can bring a common law derivative action on behalf of a limited partnership.

The Court of Appeal for Ontario held that while limited partners have direct causes of action against a general partner for breach of fiduciary duty or contract, negating the need for a derivative action in such cases, a common law derivative action may be available against third parties who have harmed the limited partnership, particularly when the general partner is in a conflict of interest and refuses to act.

The court dismissed the derivative action against the general partner and its director but granted leave for a derivative action against the three third parties, establishing a test for such leave.

The Mizrahi Defendants sought to stay or dismiss the action brought by 2694128 Ontario Inc. under Rules 21.01(3)(d) or 25.11 of the Rules of Civil Procedure or s. 106 of the Courts of Justice Act, arguing that contractual preconditions for the action had not been met.

Specifically, they contended that 2694128 Ontario Inc. could only demand repayment if CERIECO had made a demand under a separate Supplier Credit Agreement (SCA), and that CERIECO was precluded from doing so by a Standstill Provision in a Subordination Agreement.

The court found that while 2694128 Ontario Inc. had made a demand for repayment, it was not plain and obvious that CERIECO's prior demands for repayment under the SCA were invalid or prohibited by the Standstill Provision.

The court determined that the interpretation of the interrelated agreements required a deeper analysis of the factual matrix, which is not suitable for a preliminary motion.

Consequently, the motion to stay or dismiss the action was dismissed.

This is a costs endorsement following the dismissal of the defendants' anti-SLAPP motion under section 137.1 of the Courts of Justice Act.

The plaintiffs, who successfully resisted the anti-SLAPP motion, sought costs.

The court awarded costs to the plaintiffs, finding "compelling facts" to justify the award, including the significant reputational harm caused by the defendants' malicious and widely broadcast statements, particularly to a professional lobbyist.

The decision emphasized the need to deter meritless anti-SLAPP motions and fixed costs at $50,000, aligning with the Court of Appeal's suggested ceiling.

The defendants brought an anti-SLAPP motion under the Courts of Justice Act to dismiss a libel action initiated by the plaintiffs.

The defendants argued the action aimed to stifle their public interest discussions on vaccine passports, Christian influence in government, and political lobbying.

The plaintiffs contended the defendants' expressions were false and defamatory.

The court applied the anti-SLAPP test, finding that the plaintiffs' claim had substantial merit and the defendants had no valid defense (rejecting defenses of truth, repetition, fair comment, and responsible communication).

The court also determined that the harm suffered by the plaintiffs was sufficiently serious to outweigh the public interest in protecting the defendants' expression.

Consequently, the defendants' motion to dismiss was dismissed, allowing the libel action to proceed.

This endorsement addresses a plaintiff's motion for leave to amend its statement of claim and the costs of both this motion and an earlier motion to dismiss/stay.

The court had previously stayed claims related to the recovery of subordinated indebtedness due to a standstill provision but allowed other claims, such as those for fraud and conspiracy related to unauthorized agreements, to proceed with leave.

The plaintiff sought to include claims for damages from unauthorized loan transactions, knowing assistance, breach of fiduciary duty, fraud, conspiracy, punitive damages, and oppression remedy.

The court permitted claims for damages from unauthorized transactions, knowing assistance, breach of fiduciary duty, fraud, and conspiracy, finding they fell outside the standstill provision.

However, claims for punitive damages equal to the subordinated indebtedness were disallowed as a disguised attempt to recover prohibited amounts.

The oppression remedy claim was also denied, as the plaintiff failed to establish a proper complainant status independent of its prohibited creditor capacity.

The Mizrahi Defendants, as the overall successful parties on the stay motion and more successful on the leave to amend motion, were awarded partial indemnity costs for both motions.

The applicant, PricewaterhouseCoopers Inc. (Bridging Receiver), sought an order to appoint Richter Inc. as receiver and manager over Northern Citadel Capital Inc., One8One Davenport Inc., and 181 Davenport Retail Inc. due to an outstanding and defaulted loan.

Northern Citadel and One8One did not oppose the appointment but challenged its scope. 181 Retail opposed the appointment entirely, arguing its obligations were limited to a repaid loan and its security should have been discharged.

The court found the loan was in default and the contractual documents clearly established 181 Retail's liability as a guarantor for the full loan amount, rejecting arguments based on subjective intent or unfulfilled discharge instructions.

The court granted the appointment of Richter as receiver over all respondents but denied the Bridging Receiver's requests for sweeping investigative powers and immediate authorization to assign respondents into bankruptcy, deeming them unnecessary at that stage.

This endorsement addresses a motion brought by a non-party, Khashayar Khavari, seeking leave to intervene as an added party in a receivership application.

The applicant, PricewaterhouseCoopers Inc. (as court-appointed receiver of Bridging Finance Inc.), sought to appoint a receiver over the respondents, Northern Citadel Capital Inc., One8One Davenport Inc., and 181 Davenport Retail Inc. Khashayar Khavari claimed an equity interest in the respondent companies, which was subject to ongoing litigation, and argued he had an interest in the subject matter or could be adversely affected by the receivership order.

The motion was opposed by both the Bridging Receiver and the Respondents.

The court dismissed the motion, finding that Khashayar Khavari was a stranger to the debtor-creditor relationship, had no direct economic interest in the receivership application, and would not be unduly prejudiced as he could participate as an interested person on the service list.

The respondents brought a motion to stay the applicant's oppression application, arguing the dispute was subject to arbitration clauses in the parties' unanimous shareholders' agreement and partnership agreement.

The applicant argued the dispute arose solely under a separate control agreement that lacked an arbitration clause.

Applying the competence-competence principle, the court found an arguable case that the dispute fell within the scope of the arbitration agreements and granted the stay, referring the matter to an arbitral tribunal to determine its jurisdiction.

The Mizrahi Defendants brought a motion to dismiss or stay the plaintiff's action based on a standstill provision in a Priority, Subordination and Standstill Agreement.

The plaintiff, a subordinated lender for a construction project, sued for $200 million in damages and other relief.

The court found that the plaintiff's claims fell squarely within the standstill provision, which prohibited enforcement actions until senior lenders were repaid.

The court rejected the plaintiff's argument that the enforceability of the agreement was in play, as it was not pleaded.

The action was stayed for 30 days to allow the plaintiff to draft a new statement of claim for claims not covered by the standstill provision, after which the action would be dismissed.

The moving party sought to appeal an order dismissing her motion to add new causes of action and parties, which had been dismissed as frivolous and vexatious under Rule 2.1.01.

After the Divisional Court dismissed her motion for leave to appeal, she applied to the Court of Appeal.

A single judge adjourned the matter to a full panel to determine whether the underlying order was final or interlocutory.

The Court of Appeal held that an order refusing leave to amend pleadings to plead a new cause of action, or to add a party, is a final order.

Consequently, leave to appeal was not required, and the appeal could proceed as of right to the Court of Appeal.

The plaintiffs, Andrew and Selena Stronach, brought motions to strike out portions of the defendants' Fresh as Amended Statements of Defence under Rule 25.11 of the Rules of Civil Procedure.

The plaintiffs argued that the impugned pleadings improperly referenced documents and communications that were subject to settlement privilege arising from a confidential judicial mediation.

The defendants argued that the plaintiffs had waived privilege or that an exception applied based on the justice of the case.

The court found that the mediation was subject to settlement privilege, the plaintiffs had not waived the privilege, and no exception applied.

The court granted the motions to strike the pleadings relating to the mediation.

The court also struck out portions of one defendant's pleading as scandalous, but dismissed a motion to require another defendant to reinstate a withdrawn admission.

This endorsement addresses costs following the dismissal of a contempt motion brought by the plaintiffs against the Children's Aid Society of Toronto (CAST), its counsel, and legal assistant.

The court found the motion to be without merit and the defendants wholly successful.

Despite the plaintiff being self-represented and having been warned about costs, the court determined that costs should follow the event due to the serious nature of the allegations.

Applying the factors under the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, and balancing the indemnity principle with access to justice, the court awarded the defendants $7,500 in costs, inclusive of HST and disbursements, a reduction from their requested $10,000.

The applicants sought declaratory relief to prevent the Independent Electricity System Operator (IESO) from terminating their Feed-in Tariff (FIT) Contracts for failing to achieve commercial operation by the required milestone date.

The applicants argued that estoppel by convention applied based on a shared assumption that the IESO would grant an 18-month extension.

The court dismissed the application, finding no manifest representation by the IESO to establish a shared assumption, and noted that the entire agreement and waiver clauses in the contracts precluded reliance on past practices.

The applicants, solar power project developers, sought a declaration that the Independent Electricity System Operator (IESO) did not have the right to terminate their Feed-In-Tariff (FIT) contracts for failing to achieve commercial operation by the Milestone Date for Commercial Operation (MCOD).

The IESO had previously waived this right but issued a warning letter revoking past waivers following a government directive to wind down pre-construction energy contracts.

The court applied principles of contractual interpretation and found that the FIT contracts, which included a 'time is of the essence' clause, unambiguously granted the IESO the right to terminate for failure to meet the MCOD.

The application was dismissed.

The self-represented plaintiff brought a motion for contempt against the Children's Aid Society of Toronto, its counsel, and a legal assistant.

The plaintiff alleged contempt based on the transmission of a Pre-disposition Report to the Criminal Injuries Compensation Board, the service of a statement of defence referencing youth court proceedings, and counsel's failure to attend court.

The Superior Court of Justice dismissed the motion, finding that no court order had been breached, the disclosure was made at the plaintiff's request, and the pleadings were privileged and filed under seal.