David Wayne Trenholm Levangie

The plaintiff, William Fu, sought judgment for the repayment of funds advanced to the defendants for an investment in Nigerian crude oil.

The court found that the defendants orchestrated a fraud, making false representations to induce Fu to invest, and awarded damages, punitive damages, and costs to the plaintiff.

The court declined to find breach of contract, finding the loss was caused by fraudulent misrepresentation, and issued reasons for the award of substantial indemnity costs.

This endorsement addresses the costs of a successful motion brought by the defendants, CleanDesign Income Corp., CleanDesign Power Systems Inc., and Mark Lerohl, to remove the plaintiff's counsel, Fogler Rubinoff, due to a conflict of interest.

The court, having granted the motion to remove counsel, considered the parties' written submissions on costs.

Applying Rule 57.01 and the principle of indemnity, the court found that the successful defendants were entitled to costs.

Despite the plaintiff's arguments regarding the narrow grounds of success, conflicting caselaw, and the defendants' alleged contribution to complexity and higher fees, the court determined a fair and reasonable cost award.

The defendants brought a motion to disqualify the plaintiff's counsel, Fogler Rubinoff, citing a conflict of interest due to the firm's prior representation of the defendants.

The plaintiff argued no conflict existed, no confidential information was at risk, and the motion was tactical.

The court found that the firm owed a duty of loyalty to its former client, Clean Power, and that the current action, particularly concerning restrictive covenants, was sufficiently related to the prior retainer.

The court dismissed arguments of delay or tactical motive and ordered Fogler Rubinoff removed as counsel.

The plaintiffs sought to amend their claim to include Cara Vaccarino as a defendant and requested an order for the mirroring of her electronic devices and email account to preserve confidential and proprietary information.

This request arose after it was discovered that another defendant, Ms. Anderson, had forwarded confidential information to Ms. Vaccarino.

Despite Ms. Vaccarino's assertion that she did not recall opening or using the email, the court found it appropriate to order the mirroring to preserve evidence and determine the use of the information.

The court ordered the mirroring to cover the period from June 1, 2023, to the present, with counsel to coordinate the least disruptive process.

The applicants (vendors) sought the release of $40 million from an $80 million escrow account, arguing that the respondents (purchasers) failed to provide timely and sufficient notice of an indemnity claim related to an undisclosed $213 million guarantee.

The respondents contended that proper notice was given, the deadline was tolled by agreement, and relief from forfeiture should apply.

The court dismissed the application, finding that notice was timely given to the vendors, the Tolling Agreement suspended any relevant deadlines, and the notice content was sufficient.

The court also stated that it would have granted relief from forfeiture due to the applicants' conduct and the disproportionate impact.

The applicants, senior secured lenders, sought the appointment of a receiver over the assets of "The One" mixed-use construction project due to financial and covenant defaults by the borrower.

The project, significantly delayed and over budget, had outstanding debt of approximately $1.235 billion.

The appointment of Alvarez & Marsal Canada Inc. as receiver was unopposed by any key stakeholder.

The court granted the application, appointed the receiver, approved a super-priority receivership funding credit agreement of up to $315 million, and issued a stay of proceedings, finding it just and convenient to stabilize the situation and maximize recovery for all stakeholders.

The Plaintiffs, unit owners in a retirement home development, brought a motion to add additional parties as defendants and amend their Statement of Claim.

They alleged that the original defendant, Pensio Property Management Group Inc., defaulted on rental income guarantees and, along with proposed individual defendants and Rentalis Insurance Company, Inc., made fraudulent misrepresentations.

They also sought to add Tripemco Insurance Group Limited, the broker, for negligence.

The court granted the motion, finding that the proposed amendments properly pleaded causes of action and that joinder of all parties was appropriate, promoting the convenient administration of justice despite arguments of prematurity.

The court-appointed Liquidators of Days Hong Kong sought a Norwich Order against two Ontario corporations (Days Canada Limited and Days Holdings Limited) and their director, Scott McPhail (Third Parties), to obtain information for tracing assets and investigating potential fraudulent conveyances by Mahesh Dayaram, a convicted fraudster.

The Third Parties argued the Liquidators had sufficient information and the request was a fishing expedition.

The court granted the Norwich Order in part, finding the test for such an order was met due to the suspicious timing of share redemptions and property transfers, the need for asset tracing in a large-scale fraud, and the Liquidators' broad investigative powers under a Recognition Order.

The court also addressed the scope of indemnity for the Third Parties' costs of compliance.

Winterland Airfield Holdings Ltd. appealed a Superior Court judgment that granted Collingwood Aviation Partners Ltd. (CAPL) declarations of unimpeded access to airport lands and exemption from user fees.

The Court of Appeal dismissed the appeal, affirming the application judge's interpretation of an Operating Agreement and finding of an implied easement for unimpeded access.

The court also upheld the finding that Winterland could not charge user fees for this access and that Winterland failed to prove CAPL was underinsured.

The defendants moved for an order compelling the plaintiff to re-attend discovery and for the defendants to be present during her examination.

The plaintiff cross-moved to exclude the defendants from her discovery and from each other's discoveries, citing psychological distress.

The court dismissed the plaintiff's motion, affirming the inherent right of parties to attend discoveries.

While not finding exceptional circumstances for full exclusion, the court ordered the plaintiff's examination to proceed via video conference, with the plaintiff and her counsel in one room and the defendants and their counsel in another, to mitigate potential distress.

The plaintiff was ordered to pay costs thrown away due to the cancellation of the original examinations.

This endorsement addresses the costs of a successful motion brought by the defendant to set aside a judgment obtained by the plaintiff.

The court ordered the plaintiff to pay the defendant $12,000 in costs on a partial indemnity basis.

The decision emphasized the plaintiff's breach of its duty of full and fair disclosure on a motion brought without notice, and its failure to consent to set aside the judgment when offered without costs.

The court applied factors under Rule 57.01 of the Rules of Civil Procedure and section 131 of the Courts of Justice Act, balancing indemnity for the successful party with access to justice.

The court also dismissed the plaintiff's request to pay costs into court due to the defendant's bankruptcy, finding no basis to hold funds for a potential trustee claim.

The defendant moved to set aside a judgment granted without notice, which included a declaration under s. 178 of the Bankruptcy and Insolvency Act that the debt survived bankruptcy due to fraud.

The court found that the plaintiff had no right to seek judgment without notice, as the defendant had not been noted in default, and there were significant credibility issues regarding service and the underlying fraud allegation.

The court emphasized that s. 178 declarations should not be made on default judgment motions or without a proper assessment of the fraud claim.

Applying the test for setting aside default judgments, the court found the defendant moved promptly, had a plausible excuse for default (disputed service), and an arguable defence on the merits (credibility issues regarding fraud and limitations).

The judgment was set aside due to non-disclosure, failure to give notice, and improper use of s. 178 BIA.

Following a successful fraud trial brought under s. 38 of the Bankruptcy and Insolvency Act, the court determined the appropriate scale and quantum of costs payable to two successful creditor plaintiffs.

The defendants had engaged in fraudulent conveyances, document alteration, and litigation conduct that delayed the trial and attempted to mislead the court.

The court held that such conduct justified an award of full indemnity costs, an exceptional remedy reserved for egregious dishonesty and abuse of the judicial process.

After reviewing the draft bills of costs, the court reduced certain duplicative and insufficiently documented claims but fixed substantial full indemnity costs payable to each plaintiff.

The defendants were held jointly and severally liable for the costs, payable forthwith.

The plaintiff supplier brought a motion for summary judgment seeking payment of outstanding invoices for wholesale jewelry sold to the corporate defendant and enforcement of alleged personal guarantees by the individual defendants.

The defendants argued that returned merchandise and diamonds supplied to the plaintiff eliminated the debt and that factual disputes required a trial.

Applying the summary judgment framework under Rule 20 and the guidance in Combined Air Mechanical Services Inc. v. Flesch, the court weighed the evidence and made credibility findings on the paper record.

The court rejected the principal defendant's evidence, found the return inventory had been properly credited at original sale prices, accepted a limited credit for diamonds, and held that the corporate defendant remained indebted.

The court also found an enforceable oral personal guarantee by one individual defendant but not by the others.

A creditor brought a motion to compel the bankrupt to satisfy an undertaking given during an examination under s. 163(1) of the Bankruptcy and Insolvency Act.

The undertaking required production of complaints made by the bankrupt to the Law Society and the Human Rights Tribunal to clarify the nature of his relationship with another individual, an issue relevant to the bankrupt’s family unit status and estate.

The bankrupt sought to provide the documents only to the trustee and argued they contained confidential information.

The court held that where examining counsel conducts a s. 163 examination on behalf of the trustee and creditors, undertakings must be fulfilled by delivering documents to that examining counsel.

The bankrupt was ordered to obtain and deliver the documents, with directions that the trustee not file them in the public record without further court order due to potential confidentiality concerns.

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.