Dillon Joseph Errington Collett

The appellant appealed a judgment of the Ontario Superior Court of Justice that recognized a Belgian judgment obtained against it by the respondent's liquidator for unpaid textile invoices.

On appeal, the appellant sought to introduce fresh evidence regarding service of the foreign writ and alleged ineffective assistance of counsel.

The Court of Appeal for Ontario rejected the fresh evidence, noting it could have been presented below, and held that ineffective assistance of counsel is generally not a ground of appeal in civil matters.

Consequently, the court found no error in the application judge's decision to recognize the foreign judgment and dismissed the appeal.

The appellant appealed a decision of an Associate Justice staying its Ontario action against its former legal counsel based on a forum selection clause in the retainer agreement.

The appellant argued the Associate Justice lacked jurisdiction under s. 106 of the Courts of Justice Act to apply the strong cause test for forum selection clauses.

The Divisional Court dismissed the appeal, finding the Associate Justice had jurisdiction to stay the proceeding and made no palpable and overriding errors in enforcing the forum selection clause, which required disputes to be resolved in Alberta.

The plaintiff, Kaboom Fireworks Inc., brought a motion to compel several defendants (Vulcan Fireworks International Inc., Joseph Wan, Mystical Distributing Company Ltd., and Mystical Distributing International Ltd.) to answer undertakings and refusals from examinations for discovery.

The action concerns an alleged breach of an Exclusive Supply Agreement.

The court addressed various categories of refusals and undertakings, largely finding the questions relevant to the pleadings, particularly regarding the relationships between defendant entities, damage calculations, and the sale of Vulcan.

Most outstanding discovery obligations were ordered to be answered, with some resolved by consent or adjourned.

This endorsement addresses a costs award following the dismissal of the plaintiffs' (Sanjiv Joshi and Xpert Law Inc.) motion for an interlocutory order to reinstate Joshi as an officer and remove David Grace as a director of Olympia Athletic Camps Limited and 563973 Ontario Limited.

David Grace, the successful responding party, sought substantial indemnity costs.

The court awarded Grace $103,456 in substantial indemnity costs, finding that Joshi's conduct, both in the circumstances giving rise to the litigation and in the conduct of the litigation itself, was reprehensible and justified an elevated costs award.

The court rejected Joshi's arguments for no costs or costs in the cause, and his challenges to the hours and rates claimed by Grace's counsel, while making some adjustments for former counsel's time and a previous $10,000 costs order against Grace.

This costs endorsement addresses the allocation of costs across six intertwined proceedings.

The court awarded Maria Konstan $425,000 in all-inclusive costs against Samuel Jacob Berkovits and Saeed Hosseini.

This award was based on Maria's successful abuse of process claim, despite her malicious prosecution claim being dismissed, and the finding of Berkovits's malicious conduct.

Conversely, no costs were awarded between Samuel Jacob Berkovits and Harold Gerstel, as both parties engaged in reprehensible conduct and attempted to mislead the court, which would bring the administration of justice into disrepute.

This endorsement addresses an urgent motion brought by the Grace Parties (defendants in the main oppression action) seeking to remove Sanjiv Joshi as a Director and Officer of Parent Co., alleging oppressive conduct and corporate deadlock.

The court found the motion urgent, permitted it to proceed, and set a schedule for the filing of affidavits and cross-examinations.

The judge also requested the Regional Senior Justice to appoint a Case Management Judge due to the complexity and multiple related proceedings involved in the overall litigation.

The applicants, Sanjiv Joshi and Xpert Law Inc., brought an interlocutory motion seeking an oppression remedy and reinstatement into the management of Olympia Athletic Camps Limited and 563973 Ontario Limited, and ultimately the removal of David Grace as Director.

The court applied the RJR-MacDonald test for interlocutory injunctions, requiring a strong prima facie case for mandatory relief.

The court found that the applicants failed to establish a strong prima facie case of oppression, noting the absence of formal agreements defining Joshi's management role and the fact that Olympia's articles only allowed for one director.

Furthermore, the court found that Joshi did not come to court with "clean hands" due to concerning conduct, including misrepresentations, conflicts of interest, and questionable financial dealings.

The court also found no irreparable harm to the applicants and that the balance of convenience favored the respondent, Grace, given his long-standing involvement and the negative impact of Joshi's conduct on staff.

The motion was dismissed, and all previous interim terms were vacated.

This endorsement addresses three causes of action (conspiracy, abuse of process, and harassment) advanced by the Gerstel parties in their counterclaims, which were not explicitly determined in the court's prior Reasons for Decision.

The court dismissed all three claims.

The conspiracy claim failed due to a lack of common design between the alleged conspirators.

The abuse of process claim failed because the primary objective of the opposing parties' action was to redress civil wrongs, not for a collateral purpose.

The novel tort of harassment was not recognized, as the facts of the consolidated proceedings did not meet the high threshold for creating a new legal remedy.

Six consolidated actions arising from a bitter, multi-year dispute between two competing 'cash for gold' businesses in Toronto.

The feud escalated into allegations of a 'murder for hire' plot, resulting in criminal charges against an employee that were later withdrawn.

The employee sued for malicious prosecution and abuse of process.

The court found the hitman liable for malicious prosecution and both the hitman and the competitor liable for abuse of process, awarding the employee $221,775 in damages.

In the corporate actions, the court found the opposing business owner liable for nuisance and intentional interference with economic relations for using 'sandwichboarders' to harass the competitor's business, awarding $200,000.

The competitor was awarded $50,000 for defamation regarding statements made to a newspaper.

The opposing business owner's claims for defamation and misappropriation of personality were dismissed.

The plaintiffs, Sanjive Joshi and Xpert Law Inc., brought motions for interim and interlocutory relief against David Grace and the companies 563973 Ontario Limited and Olympia Athletic Camps Limited, alleging oppression and seeking access to books and records.

Grace sought to file a late affidavit in response, which the plaintiffs opposed due to non-compliance with a court-ordered timetable and Rule 39.02(3).

The court, considering the interests of justice, permitted Grace to file his affidavit despite the procedural breaches, imposing terms including an adjournment, further cross-examinations, and an award of $10,000 in costs thrown away to the plaintiffs.

Interim financial controls were also ordered.

The defendant franchisor brought a motion for summary judgment on its counterclaim, seeking declaratory relief and enforcement of a personal guarantee for unpaid costs from a previous order.

The court dismissed the motion because the moving party acknowledged it was no longer seeking the damages originally pleaded in its counterclaim, and the declaratory and guarantee relief sought on the motion had never been pleaded in the counterclaim.

The court held that summary judgment could not be granted for relief that was not properly before the court in the underlying action.

During an ongoing civil trial, the court held a voir dire to determine the admissibility of an affidavit sworn by a non-party in a separate, sealed family proceeding.

The affidavit had come into the possession of one of the defendants.

The objecting parties argued the affidavit was protected by solicitor-client privilege and was obtained unlawfully.

The court held that the sworn affidavit filed in court was not a privileged communication and that the sealing order did not reinstate privilege.

The court ruled the affidavit admissible for impeachment purposes as a prior inconsistent statement.

The Gerstel parties brought a motion to adjourn a scheduled five-week trial after the Berkovits parties indicated they intended to call Hosseini, a defaulting party who had previously failed to attend discoveries, as a witness.

The moving parties argued they would be prejudiced if forced to proceed without examining Hosseini.

The court dismissed the adjournment request to avoid further delay, but ordered that Hosseini must submit to a two-day examination for discovery prior to trial, failing which he would be barred from testifying.

The moving party sought leave to appeal from endorsements refusing his requests to adjourn an upcoming trial.

The court directed the moving party to serve and upload his materials by a specific deadline.

The moving party failed to upload any materials by the deadline.

Given the imminent trial date, the Divisional Court dismissed the motion for leave to appeal.

The applicant sought leave to appeal from a costs decision of the Superior Court awarding $121,892 to the respondent municipality.

The applicant also sought a stay of enforcement of the costs award pending disposition of the leave application.

The respondent sought dismissal of the motion or, alternatively, sought permission to conduct a judgment debtor examination and take steps to preserve the status quo, citing concerns about a potential fraudulent conveyance of the applicant's matrimonial home interest to his wife prior to the action.

The motions judge granted the stay of enforcement pending determination of the leave application.