Denise M. Cooney

The applicant, Vivian Dubrofsky, sought interim injunctive relief under section 248(3) of the Business Corporations Act (Ontario) to restrain her mother, Maryka Weisz, from withdrawing funds from Art Tile Limited except for ordinary course expenses, pending final disposition.

The court dismissed the motion, finding that while there was a serious issue to be tried and the applicant met the evidentiary threshold, she failed to establish irreparable harm.

The court ordered that the Westmore Property not be encumbered and that certain trust funds remain in trust, but otherwise dismissed the requested relief.

The Licensed Insolvency Trustee of the Estate of the late Robert Simpson, a convicted child sexual abuser, moved for a court order to impose a claims bar date for the filing of Proofs of Claim.

The Trustee sought this to bring certainty to the Estate's liabilities and facilitate distributions to existing creditors, primarily the victims.

The court, while acknowledging the Trustee's efforts and the deserving nature of the claimants, declined to grant the order based on its inherent jurisdiction.

The court found that the Bankruptcy and Insolvency Act (BIA) provides a comprehensive statutory framework (sections 148-154) for managing dividends and claims, which substantially achieves the Trustee's objectives.

The court directed the Trustee to proceed under these BIA provisions, ensuring notice to potential claimants and allowing for timely distribution to known creditors, while clarifying that late claims would not be extinguished but would be limited to any remaining funds without disturbing prior distributions.

The applicants sought the appointment of an Inspector to investigate the management and affairs of two companies, Morris Kerbel Holdings Limited and Paladium Construction Limited, alleging oppressive and unfairly prejudicial conduct by the respondents under the Ontario Business Corporations Act.

The court dismissed the applications, finding that the applicants had not met the second and third parts of the three-part test for appointing an inspector, specifically regarding the necessity and appropriateness of such an extraordinary remedy given that information could be obtained through ordinary litigation tools like an oppression proceeding.

The court also noted concerns about the broad scope, unknown costs, and lack of company resources to fund the investigation.

The applicant law firm sought to pay settlement funds into court due to a dispute between its former client and a litigation lender over loan repayment.

The lender sought summary determination of its claim.

The former client disputed the debt, alleging misrepresentation, incapacity, and improper legal advice from the applicant.

The court found no triable issues regarding the client's indebtedness to the lender, noting the small amount in dispute and the lack of a legal defence.

The court ordered the applicant to pay the lender from the trust funds, extinguishing the client's and the applicant's liability to the lender, but preserved the client's right to pursue claims against the applicant.

The Estate Trustees of Allen Berg's estate sought court direction to determine the beneficial ownership of a cottage property.

Legal title was held by Melamel Properties Inc., whose shares were owned by the estate.

Judith Berg, the deceased's widow, claimed the entire beneficial interest or a 50% interest.

The court found that the deceased had created an express trust, holding the property for himself and Judith Berg as equal tenants in common.

The deceased's subsequent attempt to transfer the property solely to Melamel Properties Inc. for his exclusive benefit was deemed ineffective due to misstatements and breach of fiduciary duty, as Judith Berg's beneficial interest could not be unilaterally divested.

The court vested an undivided one-half interest in Judith Berg personally and an undivided one-half interest in the Estate of Allen Berg as tenants in common.

The appellants sought an extension of time to appeal a decision by Sosna J. dismissing their motion to set aside a default judgment in a mortgage action.

The respondent bank had obtained a default judgment and a writ of possession.

The appellants' appeal to the Court of Appeal was well out of time.

Although the court found that the appellants intended to appeal within the appeal period and the delay was not long, the motion was dismissed on the merits.

The appellants had not paid the mortgage in months and were merely seeking to delay execution of the default judgment through the appeal process.

Costs were awarded to the respondent.

The Ombudsman of Ontario appealed a Divisional Court decision that held neither the Election Compliance Audit Committee nor the Property Standards Committee of the City of Hamilton constituted "local boards" within the meaning of section 14.1 of the Ombudsman Act.

The Ombudsman sought to investigate whether these committees complied with the public meeting requirement under section 239 of the Municipal Act, 2001.

The Court of Appeal upheld the Divisional Court's decision, applying the ejusdem generis principle to conclude that the general language in the definition of "local board" does not extend to investigative/adjudicative bodies that do not carry on the day-to-day operations of the municipality.

Consequently, the Ombudsman lacked jurisdiction to investigate these committees' compliance with open meeting requirements.

This is a costs decision on appeal from a trial judgment dismissing the appellant's action.

The respondents were entirely successful on appeal and sought costs on a partial indemnity basis.

West Face Capital Inc. sought $250,000 in costs while Brandon Moyse sought $149,905.18.

The appellant argued for reduced costs amounts.

The Court of Appeal awarded West Face $200,000 and Moyse $100,000, both inclusive of disbursements and HST, considering the respondents' complete success, the nature of the appeal involving a large record and detailed factual re-litigation, and costs thrown away due to an unnecessary adjournment.

Appeal from a trial judgment dismissing the appellant's action for misuse of confidential information and spoliation.

The appellant alleged that the respondent West Face Capital Inc. improperly obtained and used confidential information about the appellant's bid to acquire WIND Mobile Inc., allegedly obtained from a former employee who moved to West Face.

The trial judge dismissed all claims, finding that the appellant failed to prove that confidential information was provided to West Face or that any such information was used in West Face's successful competing bid.

The trial judge also found that the appellant's choice to terminate negotiations due to a break fee demand, rather than West Face's competing bid, caused the failure of the appellant's acquisition.

The Court of Appeal upheld the trial judgment and dismissed the appeal, as well as the application for leave to appeal the costs orders.

Appeal of a Divisional Court decision certifying a class proceeding brought by a former client against a personal injury law firm for alleged violations of the Solicitors Act relating to contingency fee agreements.

The applicant alleged the firm violated section 28.1(8) by including costs in its fees without court approval, charged interest contrary to section 33, and breached fiduciary duties and contracts.

The Court of Appeal dismissed the firm's appeal and allowed the applicant's cross-appeal in part, upholding certification of the class proceeding with 18 of 19 common issues (deleting one issue regarding whether the firm actually took amounts for costs) and certifying two additional common issues regarding breach of fiduciary duty and punitive damages.

Bombardier Transportation Canada Inc. (BTC) sought an interlocutory injunction to prevent Metrolinx (MTX) from terminating a $770 million contract for light rail vehicles (LRVs) due to alleged material default, pending the completion of a mandatory dispute resolution process.

BTC also sought to remove the Engineer, Jeffrey Rankin, for alleged partiality.

The court found that the contract's dispute resolution process applied to MTX's right to terminate for material default.

Applying the RJR-MacDonald test, the court determined there was a serious issue to be tried, BTC would suffer irreparable harm (loss of reputation, future business, supply chain disruption, and employee expertise), and the balance of convenience favored maintaining the status quo.

The court granted the interlocutory injunction, prohibiting MTX from terminating the contract until the Dispute Review Board (DRB) ruled on the default, and ordered the injunction to be nunc pro tunc to stay cure periods.

The issue of the Engineer's impartiality was referred to the DRB.

The moving parties, Antonio Ferrara (in trust) and Astoria Homes Inc., sought to strike a third-party claim brought by the Marcheses against Antonio Ferrara in his personal capacity.

The third-party claim was issued without consent or leave of the court, contrary to Rule 29.02.

The court found that while an irregularity occurred, leave would have been granted had it been sought, as no prejudice to the plaintiffs was demonstrated.

Furthermore, the irregularity was cured by the moving parties taking fresh steps in the litigation after becoming aware of the third-party claim.

The application to strike was dismissed.

The court issued a costs endorsement following the dismissal of the main action.

West Face Capital Inc. was awarded substantial indemnity costs of $1,239,965 due to the plaintiff's unfounded allegations of soliciting and misusing confidential information, which impugned West Face's integrity and honesty.

Brandon Moyse was awarded partial indemnity costs of $339,500.18, despite also facing integrity-damaging allegations, because he had destroyed evidence at the outset of the litigation, albeit without intent to destroy relevant evidence.

The court found the plaintiff's allegations against West Face and Moyse to be serious and unsubstantiated, justifying higher costs for West Face, while Moyse's conduct warranted a reduction to partial indemnity.

The plaintiff, Catalyst Capital Group Inc., brought an action against Brandon Moyse and West Face Capital Inc. for alleged misuse of confidential information regarding WIND Mobile Inc. and spoliation of documents.

Catalyst claimed Moyse, a former analyst, provided confidential information to West Face, which West Face then used to acquire an interest in WIND.

The court assessed the evidence, including witness credibility, and found no direct evidence of information transfer.

The court also examined the elements of breach of confidence and spoliation.

The action was dismissed in its entirety, with the defendants entitled to costs.

The court heard two motions: the defendants sought further production of documents, and the plaintiffs sought an order for the defendants to attend examinations for discovery.

The court granted some of the defendants' production requests, ordering the plaintiffs to produce unredacted financial statements and to request files from their auditors (PWC) and an accounting firm (HLB).

The court dismissed the plaintiffs' motion for discovery attendance, finding that the defendants had acted reasonably in not attending previously scheduled examinations due to the plaintiffs' incomplete production.

The court emphasized the relevance and proportionality rules for production, stating that if a document contains relevant information, it must be disclosed in its entirety without redaction.

The plaintiff commenced a Small Claims Court action seeking recovery of funds advanced under an agreement whereby the defendant undertook to source and manufacture commercial waffle machines in China.

The plaintiff paid over $50,000 but never received a viable prototype or manufactured units in accordance with the contractual specifications.

The court found the defendant’s explanations for the missing prototype and lack of documentation unsatisfactory and preferred the evidence of the plaintiff’s witness.

Applying the doctrine of total failure of consideration, the court held the plaintiff received no benefit under the agreement and was entitled to rescind and recover the advance payments within the Small Claims Court monetary limit.

Judgment was granted for $25,000 plus prejudgment and postjudgment interest and costs.