David Z. Seifer

Following the vacating of an ex parte order due to an exclusive jurisdiction clause, the respondent sought costs of the motion.

The court awarded costs on a partial indemnity basis, declining to award a higher scale as the applicant's conduct was not reprehensible.

The court allowed recovery for the value of work performed by the respondent's US counsel in drafting affidavits, noting that while foreign counsel cannot charge legal fees in Ontario, a fair and reasonable amount for the preparation work should be indemnified to avoid a windfall to the applicant.

Costs were fixed at $80,000 all-inclusive.

The applicant, an automotive manufacturer, sought an interim injunction to prevent the respondent supplier from ceasing delivery of component parts to its Windsor plant amid a pricing dispute.

The respondent challenged the court's jurisdiction, relying on an exclusive jurisdiction clause in the applicant's standard terms requiring all suits to be brought in Michigan.

The court found the clause clear and applicable, and held that the applicant failed to show 'strong cause' to avoid its own standard terms.

The court declined jurisdiction and vacated the previously granted ex parte interim injunction.

The court-appointed Receiver sought approval for the sale of a property owned by the Debtor, 253 Queen Street Inc., and an Administration Order.

The sale was supported by secured creditors Homedale-Eagle Corporation and Sky Mortgage Corporation but opposed by the Debtor and its equity holders.

The opposing parties argued the purchase price was too low, the environmental indemnity was not assumed by the purchaser, and their beneficial interest in the property was not recognized.

The court applied the Soundair principles for approving sales in receivership, finding the Receiver acted providently and fairly.

The court rejected the claims of beneficial ownership based on trust law and the Land Titles Act, affirming the priority of registered mortgages over unregistered beneficial interests.

The Receiver's motion for approval of the sale and the Administration Order was granted.

This motion for summary judgment concerned a dispute over success fees owed by mdf commerce inc. ("mdf") to Echelon Wealth Partners Inc. ("Echelon"), a financial advisor.

Echelon was engaged by mdf to source credit facilities for strategic initiatives and acquisitions.

After Echelon sourced an initial facility in 2020, mdf pursued a large acquisition in 2021, securing additional credit facilities and temporary bridge financing from the same lender (BNS) without Echelon's direct involvement, but while Echelon's advisory agreement was still in effect.

Echelon invoiced mdf for a success fee on these new facilities, arguing they constituted a "Financing Transaction" or "Related Transaction" under the agreement, and that the fees were protected post-expiry.

The court granted Echelon's motion for summary judgment, finding that the 2021 credit facilities were indeed a "Financing Transaction" and a "related transaction" as defined by the agreement, and that the protected fee clause applied.

The court also determined that the temporary bridge financing, though not drawn upon, qualified as "committed bank financing" for which a success fee was payable. mdf's cross-motion for summary judgment dismissing the claim was dismissed.

The defendants brought a motion to disqualify the plaintiffs' counsel and their law firm on the basis of a conflict of interest.

The defendant, Marc Lewis, had previously retained the same law firm for an employment matter with a former employer.

The court applied the MacDonald Estate test and found that the previous retainer was not sufficiently related to the current malfeasance action, and no relevant confidential information was imparted.

Furthermore, the law firm had implemented an ethical wall.

The motion to disqualify counsel was dismissed.

The Moving Parties brought a jurisdiction motion seeking to dismiss or stay Senvion's Ontario action and motion for lack of jurisdiction or on the basis of forum non conveniens, arguing that Quebec was the more appropriate forum.

Senvion's proceedings concerned an alleged breach of a Companies’ Creditors Arrangement Act (CCAA) stay order issued by the Ontario court, specifically regarding the draw down of a letter of credit.

The court dismissed the Moving Parties' motion, holding that the Ontario court, as the issuer of the CCAA recognition orders and stay, was the appropriate forum to determine whether its order had been breached, irrespective of contractual choice of law or forum clauses.

The court explicitly stated it was not making a determination on the merits of the stay violation.

The applicant, Tacora Resources Inc., sought approval for an Amended and Restated Debtor in Possession (DIP) financing agreement with Cargill and an extension of the CCAA Stay Period.

The Ad Hoc Group of Noteholders (AHG) opposed the Cargill DIP, proposing an alternative and seeking renegotiation of terms, including an exit fee, legal costs, and the "Offtake Condition" related to a pre-existing commercial agreement with Cargill.

The court approved the Cargill DIP and extended the stay, finding the Cargill agreement offered greater short-term stability and liquidity, was recommended by the Monitor, and did not materially prejudice other stakeholders beyond what already existed due to the pre-CCAA Offtake Agreement.

The court held that the DIP approval motion was not the appropriate forum to address the enforceability or commercial reasonableness of the Offtake Agreement itself.

The Applicants, Roof Tile Management Group Inc. and Roof Tile Management Inc., brought an application seeking declaratory relief and other non-monetary orders, along with a motion to amend their Notice of Application to seek a reference for damages.

The Respondents, Henry Forget and 2149220 Ontario Inc., opposed both the amendment and the application as the proper form of proceeding, arguing that the case involved highly contested facts requiring an action.

The court dismissed the Applicants' motion to amend, finding it would improperly bifurcate the proceeding and cause procedural injustice.

The court also converted the application into an action under Rule 38.10, determining that an application was not the appropriate forum to resolve the significant factual disputes concerning liability and damages.

The Pointer Group Incorporated brought a motion for security for costs of the appeal and the underlying action and anti-SLAPP motion, pursuant to Rule 61.06(1)(a) and (c) of the Rules of Civil Procedure.

The moving party argued the appeal was frivolous and vexatious and that the appellant, Dr. Kulvinder Kaur Gill, had insufficient assets.

The court dismissed the motion, finding that the moving party failed to demonstrate that the appeal was both frivolous and vexatious, or that Dr. Gill had insufficient assets.

The court also found no "other good reason" to order security for costs, as the appeal presented arguable errors of law and there was no indication of vexatious conduct or difficulty in collecting costs from Dr. Gill.

Dr. Gill was awarded partial indemnity costs of $5,000 for the motion.

The applicant, Romspen Investment Corporation, sought the appointment of a receiver over the respondents' property and approval of an agreement of purchase and sale (the "Times Transaction").

A fifth-ranking mortgagee, Sow Capital Ontario Limited, brought a competing motion to approve its own power of sale transaction (the "281 Transaction") and sought to suspend the receiver's powers.

The respondents opposed both sale transactions, arguing for a receiver-conducted auction.

The court appointed Ernst & Young Inc. as receiver, approved the Times Transaction, and granted a sealing order, finding that the Times Transaction offered the best outcome for all stakeholders and that a further sales process was unnecessary.

The court dismissed Sow's motion to suspend receivership powers and the respondents' request for an auction or a reservation of rights to claim improvident sale.

The appellant, Bon-Star Inc., appealed an order declaring its mortgage a closed mortgage with no prepayment privileges and requiring compensation for lost interest upon prepayment.

The Court of Appeal allowed the appeal in part, varying the declarations to clarify that prepayment privileges were absent in favour of the mortgagor and that compensation for lost interest was required for the specific transaction where the "Due on Sale" clause was not invoked.

The court found the application judge erred in making a broad declaration regarding prepayment without compensation, as specific mortgage terms like the "Due on Sale" clause could alter prepayment conditions.

The court also upheld the application judge's discretionary decisions regarding adjournments and counsel appointment.

The plaintiff brought a motion seeking further disclosure from the defendant, including an unredacted bonus compensation document and details of expenses deducted from the bonus pool, in a wrongful dismissal action concerning unpaid bonuses.

The defendant had redacted information for relevance and commercial sensitivity.

The court dismissed the plaintiff's motion, finding that the redacted information was not relevant to the pleaded issues at this stage and that its disclosure would cause significant harm to the defendant due to its sensitive business nature and private employee information.

The court noted that the plaintiff could re-bring the motion if further evidence from discovery established relevance.

The Applicants in a CCAA proceeding moved for a reverse vesting order to approve a transaction with a purchaser related to a secured creditor, Marzilli.

The transaction would vest out the first-ranking security interest of another creditor, 212, and transfer its debt to a residual entity with no assets. 212 opposed the motion, arguing its debt assumption was part of the stalking horse bid that set the floor for the sales process.

The court applied the Third Eye and Harte Gold factors, finding that 212 had not consented to the vesting out of its interest and that the equities favoured 212.

The court dismissed the motion for the reverse vesting order, concluding it was not equitable to extinguish 212's first-ranking security interest under the circumstances.

Following the successful dismissal of the plaintiffs' defamation action under the anti-SLAPP provisions of the Courts of Justice Act, the moving parties (defendants) sought full indemnity costs totalling over $1.1 million.

The court awarded full indemnity costs as requested, subject to a reduction for the costs of non-active counsel, clerks, or students.

The court also apportioned liability, finding one plaintiff jointly and severally liable only for costs related to the OMA dispute, while the other plaintiff was solely liable for costs related to the COVID-19 dispute.

The defendants were successful in obtaining a temporary stay of the Ontario action and sought costs of the motion on a partial indemnity scale.

The plaintiff argued that costs should follow the cause and be awarded upon final disposition, or that the parties should bear their own costs because the defendants were only partially successful.

The court rejected the plaintiff's arguments, finding the defendants were the successful parties and entitled to costs payable forthwith.

Costs were fixed at $23,687.55 on a partial indemnity scale.

The plaintiff brought a motion to compel answers to undertakings and refusals given during an examination for discovery, specifically seeking unredacted copies of a credit agreement, its amendments, and calendar appointments in native format.

The court found that the credit agreement and its amendments were captured by the discovery requests and were relevant to the pleadings.

The court ordered production of the agreements but permitted limited redactions for irrelevant and commercially sensitive information, rejecting the defendants' broad redactions.

The court also ordered the production of calendar appointments in native format as impliedly required by the parties' discovery plan.

The plaintiffs, two physicians, brought a $12 million defamation action against over 20 defendants, including other physicians, journalists, and media organizations.

The claims arose from two main disputes: an internal Ontario Medical Association (OMA) dispute and public criticism of the plaintiffs' controversial tweets regarding COVID-19, in which they opposed vaccines and lockdowns and promoted hydroxychloroquine.

The defendants brought anti-SLAPP motions under s. 137.1 of the Courts of Justice Act.

The court found that the defendants' expressions related to matters of public interest and that the plaintiffs failed to show their claims had substantial merit or that the defendants lacked valid defences, such as fair comment and qualified privilege.

The court also found that the public interest in protecting the defendants' expressions far outweighed any harm suffered by the plaintiffs.

The action was dismissed against all defendants.

The plaintiff, owner of a longstanding craft beer competition, brought a motion for an interim injunction to prevent the defendants from holding a competing national craft beer competition.

The plaintiff alleged that a former employee, now working for the defendant association, misused confidential financial and business information obtained during his employment and during subsequent failed negotiations to purchase the plaintiff's competition.

The court applied the RJR MacDonald test and found a serious issue to be tried, presumed irreparable harm due to the nature of the confidential business information, and determined the balance of convenience favoured the plaintiff.

A time-limited injunction was granted until September 1, 2022.

The defendant in a defamation action brought under the Simplified Procedure delivered a notice of motion to dismiss the claim as a SLAPP under s. 137.1 of the Courts of Justice Act.

The court addressed the scheduling of the motion, noting the routine disregard for the mandatory 60-day time limit under s. 137.2(2).

The court enforced the 60-day limit, scheduling the motion accordingly despite court backlogs, and ruled that the statutory allowance for cross-examination on anti-SLAPP motions overrides the general prohibition against cross-examination in Simplified Procedure actions.

The applicant mortgagee brought an application for declarations that a commercial mortgage registered against the respondent's property was a closed mortgage with no prepayment privilege, that it was entitled to all lost interest to maturity upon any early prepayment, and that forced insurance coverage costs were recoverable.

The respondent corporate mortgagor argued it should be entitled to pay out the mortgage upon a sale without paying interest to maturity.

The court granted the declarations, finding that the mortgage terms clearly prohibited early prepayment and that corporate borrowers do not have a statutory right to redeem a mortgage with only a three-month interest penalty under the Mortgages Act.

The court also found the insurance costs were properly recoverable under the mortgage terms.