Derek J. Bell

The applicants sought to remit an arbitration matter back to the arbitrator under section 46(8) of the Arbitration Act, 1991, arguing that the arbitrator failed to address certain issues and that the purported transfer of shares in Power Investment Properties Inc. should be declared invalid.

The respondents sought enforcement of the arbitral awards.

The court dismissed the applicants' application as time-barred under section 47 of the Arbitration Act, finding that the 30-day deadline for bringing a section 46 application applies to all applications under section 46, including those seeking remittance under section 46(8).

The court granted the respondents' application to enforce the arbitral awards.

Following the dismissal of the appeal, the court received written submissions on costs.

The court ordered the appellant to pay the respondents' costs fixed at $25,000, plus disbursements and applicable HST.

The appellant tenant sought to overturn a summary judgment, arguing that commercial landlords have a duty to mitigate damages even when they do not accept a tenant's repudiation of a lease, and that a lease clause capped damages.

The Court of Appeal affirmed the motion judge's decision, holding that it was bound by Supreme Court of Canada precedent (Highway Properties v. Kelly, Douglas & Co.) which states no such duty to mitigate exists when the landlord insists on performance of the lease.

The court also upheld the motion judge's interpretation of the lease clause, finding that the two-year rent cap on damages only applied if the landlord had terminated the lease, which it had not.

The appeal was dismissed.

The tenant unilaterally repudiated a commercial lease and vacated the premises.

The landlord refused to accept the repudiation, kept the lease alive, and sued for rent arrears without taking steps to mitigate by re-letting the premises.

The tenant argued that the Supreme Court of Canada's precedent in Highway Properties, which allows a landlord to insist on performance without mitigating, should be overturned in light of modern contract law principles.

The court held it was bound by vertical stare decisis to follow Highway Properties and the Ontario Court of Appeal's subsequent affirmations of the rule.

The court also rejected the tenant's argument that the lease capped damages at two years' rent, finding the cap only applied if the landlord terminated the lease.

Summary judgment was granted to the landlord for rent arrears.

The plaintiff, Shobrook Corporation, was successful in its motion to amend its Statement of Claim and sought substantial indemnity costs.

The court awarded partial indemnity costs of $28,933, finding that while the defendants' conduct unnecessarily lengthened and complicated the motion, it did not meet the high threshold for reprehensible conduct required for substantial indemnity.

The court also ordered a further day of discovery and the appointment of a new Case Management Judge due to the procedural difficulties encountered.

The moving parties brought a motion for leave to appeal the order of Sheard J. dated January 10, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs fixed at $7,500.

This is a costs decision following a motion to appoint a litigation guardian for Anthony Di Silvestro Sr. The plaintiffs, Kathy Ann Di Silvestro and Kandis Developments Limited, successfully moved to appoint an independent litigation guardian (Bryan Gelman) for Anthony Di Silvestro Sr., despite opposition from the defendants Laura Marie Di Silvestro and Matthew Dennis Di Silvestro, who proposed themselves or an accountant with prior involvement.

The court awarded the plaintiffs $80,000 in costs, with 50% to be paid by Anthony Di Silvestro Sr. and the other 50% jointly and severally by Laura Marie Di Silvestro and Matthew Dennis Di Silvestro, due to their pursuit of inappropriate LG candidates despite clear conflicts of interest.

The plaintiff, Shobrook Corporation, brought a motion to amend its Statement of Claim to increase the damages claimed from $750,000 to $8,700,000 and to limit its claim to insurance coverage, as well as to obtain leave to bring this motion after the matter had been set down for trial.

The defendants opposed the amendments, arguing they were untenable, caused non-compensable prejudice, and were brought with inordinate delay.

The court granted the plaintiff leave to bring the motion and to amend its Statement of Claim, finding that the proposed amendments did not introduce a new cause of action, did not cause non-compensable prejudice, and that any presumed prejudice due to delay was rebutted.

The court emphasized that the original claim already encompassed the nature of the increased damages.

The plaintiffs brought a motion to appoint an independent litigation guardian for Anthony Di Silvestro Sr., who was deemed incapable of managing his property and instructing counsel.

The defendants, including Tony Sr.'s daughter Laura, opposed, arguing Laura should remain as LG based on a Power of Attorney and that the plaintiffs needed to show misconduct.

The court found that Laura and Matthew had conflicts of interest due to allegations of undue influence over their parents' business and estate plans.

The court dismissed Laura's claim that her prior self-appointment as LG shifted the burden to the plaintiffs to prove misconduct.

Applying the 'best interests test' and 'indifference' principle from Gronnerud, the court ruled that neither Laura, Matthew, nor a family-connected accountant (Mr. Mastroluisi) were suitable due to potential conflicts.

The court appointed Bryan Gelman, an independent insolvency trustee, as the litigation guardian for Tony Sr., subject to approval of terms.

Following the approval of a Plan of Arrangement under the Canada Business Corporations Act, the successful applicant sought costs against the objecting creditors.

The objectors argued the applicant was disentitled to costs for failing to request them initially and that the quantum sought was excessive.

The court rejected the disentitlement argument, finding the objectors had notice that costs would be addressed in writing.

The court awarded $100,000 in costs, reducing the requested amount for proportionality, and ordered the costs payable jointly and severally by the objectors as they had pursued a common strategy.

The applicant mining company sought a final order approving a Plan of Arrangement under the Canada Business Corporations Act to sever ties with the Kyrgyz Republic following the state's seizure of its flagship mine.

Two unsecured judgment creditors of the Republic objected, seeking to enforce their arbitral awards against the Republic's shares in the applicant or garnish payments under the Arrangement.

The court approved the Arrangement, finding it met the statutory requirements, had a valid business purpose, and was fair and reasonable.

The court held the creditors lacked standing to oppose the Arrangement and that garnishment was inappropriate as it would result in double jeopardy.

The defendants brought a motion to strike portions of the plaintiffs' Amended Statement of Claim, arguing the claims lacked particularity, disclosed no reasonable cause of action, and that the oppression claims should have been brought as a derivative action.

The dispute involved a family-owned real estate business.

The court dismissed the motion, finding that the pleadings provided sufficient particulars and that it was not plain and obvious that the plaintiff's oppression claims would fail, particularly given the context of a closely-held family corporation where personal and derivative claims may overlap.

The plaintiffs were granted leave to amend certain paragraphs to provide additional facts.

The Court of Appeal for Ontario issued a costs endorsement following its decision to allow an appeal, set aside a dismissal order, and restore the action.

The appellants sought costs for both the appeal and the original motion.

The respondents argued against any costs award, particularly for the original motion, citing s. 137.1(8) of the Courts of Justice Act.

The Court found no basis to deny costs for the appeal, as the appellants were entirely successful, but reduced the quantum sought.

For the original motion, the Court clarified its previous finding regarding public interest, noting the motion judge erred, and applied the principle from Veneruzzo v. Storey that costs should be awarded to a successful respondent on a s. 137.1 motion if the lawsuit was not a SLAPP and the expression was unrelated to public interest.

The Court awarded the appellants their costs for both the appeal and the original motion.

The appellants appealed the dismissal of their defamation action as a Strategic Lawsuit Against Public Participation (SLAPP) under s. 137.1 of the Courts of Justice Act.

The action arose from allegedly defamatory statements made by the respondents in an Ontario Labour Relations Board (OLRB) pleading.

The motion judge found the expression related to a matter of public interest and dismissed the action.

The Court of Appeal allowed the appeal, holding that the motion judge erred by characterizing the expression too broadly and by concluding that the specific impugned statements, which concerned a private dispute between competitors, related to a matter of public interest.

The Court clarified that purely private disputes, even if involving allegations of tortious conduct, do not automatically qualify as matters of public interest for anti-SLAPP purposes.

AIMCO and CHC MPAR LP entered into a co-ownership agreement to develop a student housing project.

After the project faced zoning rejections, AIMCO and CHC independently acquired a neighbouring property without including MPAR, a 50% shareholder in the general partner.

AIMCO subsequently triggered a shotgun clause to buy out the limited partnership's interest.

MPAR opposed the buyout and applied for relief, alleging oppression, breach of fiduciary duty, and breach of contract.

The court dismissed MPAR's application, finding no oppressive conduct, fiduciary duties, or contractual breaches, as the agreements explicitly excluded obligations regarding outside business opportunities.

AIMCO's application for specific performance of the shotgun clause was granted.

The applicants, minority shareholders of Deciem Beauty Group Inc., brought an urgent oppression application under the Canada Business Corporations Act seeking various interim orders against Deciem, Integridad Inc., Pasquale Cusano, and Brandon Truaxe.

The motion sought to remove Mr. Truaxe from Deciem's board, officer, and employee roles, appoint an interim CEO, define the board composition, prohibit Truaxe's interference with business operations and electronic systems, amend the unanimous shareholders agreement, and appoint PriceWaterhouseCoopers LLP to investigate allegations of criminal activity and Deciem's financial condition.

The court found a triable issue of oppression, irreparable harm to Deciem, and that the balance of convenience favored granting the injunction, given Truaxe's erratic and destructive behavior that brought the company to the brink of disaster.

A condominium corporation issued a clean status certificate to the respondent when he purchased a unit in 2013.

When the respondent requested a new status certificate in 2016 to market the unit for sale, the corporation noted that the unit layout had been altered without Board consent, contrary to the declaration.

The respondent sought a declaration that the corporation was estopped from noting such matters in the subsequent certificate.

The application judge granted the relief sought, finding the corporation bound by its earlier clean certificate.

The Court of Appeal allowed the appeal, holding that while the corporation is bound by its earlier certificate as against the original purchaser, it is not estopped from disclosing newly discovered matters in subsequent certificates.

The corporation's obligation to disclose material information to prospective purchasers overrides any estoppel argument.

The appellant appealed an order confirming a worldwide Mareva injunction against him, arguing that an Ontario court cannot grant such an injunction when the defendant has no assets in the jurisdiction.

The Divisional Court dismissed the appeal, holding that the court's in personam jurisdiction allows it to grant a Mareva injunction even if the defendant has no assets in Ontario, provided it is just and convenient.

The court also upheld the motion judge's discretionary decision to accept an undertaking as to damages from a foreign corporate non-party.

The Cadillac Fairview Corporation Limited appealed the partial disallowance of its claim by the trustee in bankruptcy of Danier Leather Inc. The core issue was whether occupation rent paid by a court-appointed receiver, acting as an agent for the trustee, could be deducted from the landlord's priority claim for accelerated rent under section 136(1)(f) of the Bankruptcy and Insolvency Act.

The court found that an agency relationship existed between the trustee and the receiver, and therefore, the occupation rent paid by the receiver was properly credited against the accelerated rent claim.

The appeal was dismissed.

The defendant brought a motion for a commission to take evidence in Hong Kong for himself and five non-party witnesses.

The plaintiff opposed on grounds of jurisdiction, the test under Rule 36, and the open court principle.

The court granted the motion for the non-party witnesses, with the trial judge acting as commissioner, finding it necessary for a fair trial as these witnesses were not compellable in Ontario.

However, the motion for the defendant's own evidence to be taken on commission was dismissed, as he failed to demonstrate a sufficient reason for not attending in Toronto, given his status as a party who had attorned to the court's jurisdiction and the significant costs involved.

The court also found that the commission evidence process, with the trial judge acting as commissioner, did not offend the open court principle or jurisdictional boundaries.