David Wayne Trenholm Levangie

The plaintiffs moved to enforce a $600,000 settlement reached at mediation for injuries sustained when the plaintiff was struck by a construction fence.

The defendants opposed enforcement, arguing the settlement was vitiated by fraud because the insurance agent who authorized the settlement had issued a fake policy, leaving the defendants uninsured.

The court granted the motion, finding that defence counsel had apparent authority to bind the defendants and that the alleged fraud by a third party did not invalidate the agreement.

The court held it would be unjust to shift the burden of the insurance fraud onto the innocent plaintiff, and the defendants must pursue their remedies against the insurance intermediaries.

The applicant career college sought judicial review of a decision by Accreditation Canada to revoke the accreditation of its Diagnostic Medical Sonography Program, and the Superintendent's subsequent decision to revoke the program's approval.

Accreditation Canada brought a motion to stay the judicial review proceedings under s. 7(1) of the Arbitration Act, relying on an arbitration clause in the accreditation contract.

The Divisional Court found that while the accreditation decision was an exercise of statutory authority with sufficient public character to be subject to judicial review, the technical requirements for a mandatory stay in favour of arbitration were met.

The court held that the arbitration agreement was not unconscionable and that the subject matter was capable of being arbitrated.

The motion to stay the judicial review was granted.

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.

The applicant career college brought a motion for a stay of the Superintendent's decision to revoke approval of its diagnostic medical sonography program pending a judicial review application.

The revocation followed the loss of the program's accreditation status.

The Divisional Court dismissed the motion, finding that the applicant failed to provide sufficient evidence of irreparable harm, such as financial inability to pay required student refunds.

Furthermore, the balance of convenience favoured denying the stay to allow students to receive refunds and pursue education elsewhere, rather than remaining trapped in an unaccredited program.

The applicants, two career colleges offering truck driving programs, sought judicial review of the Superintendent of Career Colleges' decision to revoke their program approvals.

The revocations were issued without prior notice or an opportunity to respond, following investigations into the programs.

The Divisional Court admitted fresh evidence relevant to procedural fairness and applied the Baker factors.

The court found that given the severe financial impact, the lack of a statutory appeal right, and the applicants' legitimate expectation of progressive discipline, the Superintendent breached the duty of procedural fairness.

The revocations were set aside and costs were awarded to the applicants.

The moving parties sought leave to appeal a July 2, 2024 decision of Justice Black.

The Divisional Court granted leave to appeal on the single issue of whether the Anton Piller order was correctly enlarged to include the business and phone computer of one of the moving parties.

Leave to appeal on all other issues was dismissed.

The court also granted a stay of paragraphs 2 to 4 of the underlying order pending the appeal, with no costs awarded due to divided success.

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 plaintiff, Humi Holdings Corporation, brought a motion for an interlocutory injunction to prevent former employees and their new company from competing and using alleged confidential information to develop an embedded payroll software product.

The court admitted expert evidence from both sides.

Applying the RJR-MacDonald test, the court found that the plaintiff failed to establish a strong prima facie case that the non-competition clauses were enforceable or breached, or that confidential information was misused.

Furthermore, the plaintiff failed to demonstrate irreparable harm, and the balance of convenience favored the defendants.

The motion was dismissed with costs awarded to the defendants.

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 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 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 court issued a scheduling endorsement setting a motion date for April 5, 2022.

The responding party's counsel advised that preparation was hampered because the client was incarcerated in Hong Kong.

The court formally requested the Commissioner of Correctional Services in Hong Kong to grant the solicitors enhanced access to their client to allow meaningful preparation for the motion.

The appellant appealed an Associate Justice's order dismissing a motion to correct the plaintiff's name in the title of proceedings based on misnomer.

The Associate Justice found that the defendants would not have reasonably understood that the proposed new plaintiff was the intended plaintiff, as the defendants had expressly refused to contract with that entity.

The Divisional Court found no palpable and overriding error in the Associate Justice's factual findings or application of the objective test for misnomer.

The appeal was dismissed.

The appellant appealed a Small Claims Court judgment regarding a software license agreement dispute.

The trial judge had found that the appellant fundamentally breached the agreement by failing to provide software support and training at no extra cost, relying on the respondent's subjective expectations and prior conduct.

The Divisional Court allowed the appeal, finding that the trial judge made several extricable errors of law by failing to apply proper principles of contractual interpretation, including ignoring the express language of the written agreements and the entire agreement clause.

A new trial was ordered.

At a case conference regarding the plaintiff's motion for default judgment, the defendants indicated an intention to challenge the validity of service in Hong Kong under the Hague Convention.

The defendants' counsel appeared on a limited scope retainer solely to contest service.

The court held that it would be an abuse of process to allow the defendants to delay adjudication by retaining counsel incrementally.

The court scheduled the plaintiff's motion for default judgment and directed that any motions by the defendants to set aside service or lift the noting in default be heard at the same time.