Derek Knoke

In a Commercial List receivership arising from judgment enforcement, the receiver moved for contempt after the respondent swore a declaration used to support a criminal complaint in Panama challenging the receiver's replacement of directors of a Panamanian subsidiary.

The court held it had jurisdiction because the alleged misconduct had a real and substantial link to Ontario, including the Ontario receivership order, the Ontario corporation in receivership, and the enforcement of an Ontario judgment.

Applying the civil contempt framework, the court found the appointment order was clear and unequivocal, the respondent knew of it, and he intentionally breached it by purporting to act for the debtor and by supporting foreign proceedings against the receiver without leave.

The court declined to find criminal contempt because the notice of motion did not provide sufficient particulars.

The moving parties' motion for leave to appeal and for a stay of various orders was dismissed as abandoned.

The court ordered the moving party to pay costs of $5,000 to the Receiver.

This is an appeal from a summary judgment order where the motion judge found that a personal guarantee was a continuing guarantee applicable to a subsequent amended loan agreement.

The appellants, the personal guarantors, argued that the guarantee was not continuing and that the latest loan agreement extinguished their obligations.

The Court of Appeal for Ontario dismissed the appeal, affirming that the guarantee was a continuing one and that the liabilities under the final loan agreement were "in connection with" the previous agreement, thereby maintaining the guarantors' liability.

The court also upheld the deferential standard of review for contractual interpretation.

The plaintiffs sued the defendants for defamation over negative online reviews regarding window installation.

Faced with an anti-SLAPP motion, the plaintiffs attempted to discontinue the action.

The court held that the statutory stay under s. 137.1(5) of the Courts of Justice Act was triggered when the defendants delivered a requisition to attend Civil Practice Court, rendering the discontinuance ineffective.

Applying the Pointes framework, the court found the reviews related to a matter of public interest, the plaintiffs failed to show there were no valid defences, and the action was a SLAPP suit brought for an improper purpose.

The action was dismissed, and the plaintiffs were ordered to pay $164,186.76 in full indemnity costs and $2,500 in damages.

The moving parties brought a motion for leave to appeal the orders of the lower court judge dated March 25, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding receiver in the fixed amount of $5,000.

The plaintiffs sought to add two radiologists as defendants to a medical malpractice action after the presumptive expiry of the limitation period, claiming they only recently discovered the claim through expert advice.

The proposed defendants brought a motion to compel disclosure of the identities of the plaintiffs' consulting experts and all communications with them, which the plaintiffs resisted on grounds of relevance and litigation privilege.

The court held that by relying on the experts' advice to explain the delay in discovering the claim, the plaintiffs impliedly waived privilege over the experts' identities and certain notes of conversations with them, as fairness required the proposed defendants to be able to test the plaintiffs' evidence on discoverability.

However, other requested documents remained protected by privilege or were irrelevant.

The plaintiffs brought a proposed class action against the developers of a cancelled pre-construction condominium project, alleging breach of contract and bad faith in invoking an early termination condition.

Following a settlement meeting and document review, the parties agreed to a without-costs discontinuance.

The court approved the consent motion to discontinue the action under section 29 of the Class Proceedings Act, 1992, finding that the discontinuance would not prejudice the putative class members, who had not yet been notified of the proceeding and could still pursue individual claims before the expiry of the limitation period.

The defendants brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action brought by the plaintiffs.

The defamation claim arose from an article published by the defendants, insolvency professionals, commenting on public receivership proceedings.

The court found that the defendants' expression related to a matter of public interest.

The plaintiffs failed to demonstrate that their claim had substantial merit or that the defendants had no valid defence, particularly regarding the defence of justification (truth) and responsible communication.

The court also found that the plaintiffs did not provide sufficiently credible evidence of serious harm to outweigh the public interest in protecting the defendants' freedom of expression.

The motion was granted, and the action was dismissed.

This decision addresses the costs arising from two applications brought by the Town of Oakville that were struck out by the court.

Clublink, the successful party, sought $137,903.70 in partial indemnity costs, while the Town argued for no costs or, alternatively, $30,000.

The court rejected the Town's arguments for denying costs, noting that the Town's counter-applications created an unnecessary multiplicity of proceedings.

While acknowledging the extensive litigation context and the involvement of multiple senior counsel, the court found Clublink's requested costs excessive for a relatively straightforward motion to strike.

Applying principles of fairness, reasonableness, and proportionality under the Courts of Justice Act and Rule 57.01, the court fixed costs on a partial indemnity basis at $65,000, inclusive of disbursements and HST.

The applicant, a former Auditor General for the City of Oshawa, brought an application for judicial review seeking to quash a 2013 City Council resolution and expunge an investigator's report.

The application was commenced more than five years after the resolution was passed.

The Divisional Court dismissed the application for delay, finding the delay was lengthy, lacked a reasonable explanation, and caused prejudice to the City given the one-year statutory limitation period for quashing municipal resolutions.

An appeal from a summary judgment motion dismissing a claim for breach of confidence.

The appellant, a pharmaceutical company, alleged that the respondent misused confidential information regarding a potential equipment manufacturer (HED International) that was disclosed during a due diligence period for a failed asset purchase agreement.

The motion judge dismissed the claim, finding no detriment to the appellant.

The appellate court upheld the dismissal, finding that although the motion judge's approach to detriment was overly narrow, the appellant suffered no detriment as a matter of fact because it was not ready to manufacture its products and could not have benefited from direct access to the equipment manufacturer.

The Town of Oakville sought to designate Glen Abbey golf course as a cultural heritage property.

Clublink, the owner, applied under section 34 of the Ontario Heritage Act to demolish and remove the golf course.

The Town argued the application should proceed under section 33, which provides different procedural protections and appeal routes.

The central issue was whether a golf course constitutes a "structure" within the meaning of section 34.

The Court of Appeal held that Glen Abbey, being a product of significant construction and engineering comprising constituent parts intended to remain permanently on the property, was a structure within section 34.

The purposive and contextual interpretation of the statute, considering its legislative history and the evolution of municipal heritage planning beyond a "building-centric" paradigm, supported this conclusion.

The applicant, Clublink, owned the Glen Abbey Golf Course in Oakville and sought to redevelop it into a residential and mixed-use community.

The Town designated Glen Abbey as a cultural heritage property and passed five related by-laws, including a Cultural Heritage Landscape Conservation Plan By-law, authorizing the preparation of a conservation plan that required Clublink to seek Town approval for alterations to the golf course.

The application judge quashed all five by-laws and the conservation plan, finding them ultra vires, passed in bad faith, and void for vagueness.

The Court of Appeal allowed the appeal in part, upholding the validity of the five by-laws but quashing the conservation plan resolution on the basis that it effectively compelled Clublink to continue operating the golf course as a service, contrary to section 11(8)5 of the Municipal Act.

A motion for leave to intervene in an appeal was dismissed.

The proposed intervener, a non-profit organization with expertise in architectural conservation, sought to participate in an appeal concerning a municipal decision.

The court found that the proposed intervener failed to clearly articulate how its submissions would differ from those of the appellant, and that granting leave at such a late stage in the proceedings would cause unfairness to the respondents who had already filed their materials.

This application sought a determination of contractual rights regarding an early termination provision in pre-construction condominium agreements.

The applicants argued that a 'sole, absolute and unfettered discretion' proviso in a financing condition rendered the entire condition null and void under the Tarion Addendum, leading to a breach of contract claim.

The court found that the proviso did not form part of the early termination condition or, if it did, it was inconsistent with the Addendum's requirement for commercially reasonable steps and was therefore unenforceable.

The court interpreted the condition to require vendors to take all commercially reasonable steps to arrange satisfactory financing, upholding the validity of the termination condition and dismissing the application.

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 defendant moved for summary judgment to dismiss the plaintiff's claim for breach of confidence and tortious interference with economic interests.

The court found no evidentiary foundation for the breach of confidence claim, noting that alleged confidential information (unsubmitted patent applications, supplier identities) was either not sufficiently identified, publicly available, or not misused by the defendant.

The tortious interference claim failed due to the absence of a third party.

The motion was granted, and the action dismissed with costs awarded to the defendant.

The defendant brought a motion for security for costs against the plaintiff, arguing the plaintiff had insufficient assets in Ontario and evinced financial instability.

The plaintiff opposed, relying on its cash and cash equivalents.

The court found good reason to believe the plaintiff had insufficient assets, considering its acknowledged financial instability, lack of commercial activity, an outstanding judgment, and a pending breach of contract claim.

The motion was granted, and the plaintiff was ordered to post $50,000.00 as security for costs and pay $5,000.00 in costs for the motion.

The applicants sought to set aside a final arbitration award and obtain leave to appeal it, arguing the arbitrator exceeded jurisdiction by contravening a shareholders' agreement regarding share valuation and by granting relief against non-parties.

The respondent counter-applied to enforce the award.

The court found the arbitrator did not exceed jurisdiction, as the parties had consented to the arbitrator's jurisdiction over oppression, alter-ego, and fraudulent conveyance claims.

The arbitrator's valuation and liability findings, including holding non-parties liable as alter egos, were deemed within the scope of the consent order.

Leave to appeal on pre-judgment interest calculation was denied as a minor issue not meeting the statutory test.

The applicants' application and appeal were dismissed, and the respondent's counter-application to enforce the award was granted.