Edward J. Babin

The appellants appealed a summary judgment dismissing their third party claim against a law firm and its partner, as well as the associated costs order.

The Court of Appeal upheld the motion judge's findings that the pleadings did not properly allege conspiracy against the respondents and that the respondents owed no duty of care to the appellants, who were non-clients and opponents in litigation.

However, the Court allowed the costs appeal in part, finding the motion judge erred in principle by awarding partial indemnity costs equal to the full amount of actual costs paid, and reduced the costs award by one third.

The defendants brought a motion to strike various paragraphs of the plaintiffs' Statement of Claim in an action for oppression and breach of fiduciary duty.

The defendants argued the paragraphs were irrelevant, pleaded evidence, constituted conclusions, and were prolix.

The court agreed that many paragraphs, including the 'Overview' and 'Detailed Background' sections, contained evidence, argument, and irrelevant information that could prejudice a fair trial.

The court struck the offending paragraphs and headings with leave to amend, while allowing the plaintiffs to maintain allegations related to the breach of fiduciary duty claim.

Following trial and supplementary reasons in a partnership dispute, the court determined costs and interest.

Although the plaintiffs did not succeed on every issue, including dissolution and goodwill valuation, they obtained damages and successfully defended the counterclaim, and were therefore entitled to costs.

Applying Rule 57.01(1) and proportionality, the court fixed costs at $200,000 inclusive of disbursements and taxes on a partial indemnity basis.

The court also ordered interest under s. 127(1) of the Courts of Justice Act at 4.3% from the departure date for the portion of the judgment reflecting the amount owing on departure, with exceptions for NRF payments and capital payout timing.

Following a four‑week civil trial involving wrongful dismissal, oppression claims, and counterclaims for breach of fiduciary duty and misuse of confidential information, the court determined costs.

The plaintiff’s claim for damages exceeding $1 million was dismissed, although he succeeded in establishing that he had been terminated rather than having resigned.

The defendants’ $2 million counterclaim was largely unsuccessful except for minor reimbursement of approximately $300 in expenses.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court found success divided but concluded the defendants were the more successful parties overall.

Partial indemnity costs were awarded to the defendants, reduced to reflect divided success, unnecessary litigation steps, and excessive defence costs.

The plaintiff, former President of a private trust company, sued for wrongful dismissal and oppression after his employment ended amidst allegations of working for another company and improperly claiming expenses.

The court found that the plaintiff was terminated, not that he resigned.

However, the termination was justified for cause because the plaintiff breached his fiduciary duties by misrepresenting his role with another company and engaging in a pattern of claiming expenses from his employer while also deducting them on his income tax returns.

The oppression claim and the employer's counterclaim for misuse of confidential information were dismissed, though the employer was awarded reimbursement for specific improperly claimed expenses.

Following earlier reasons dismissing most applicants’ requests for interim advancement of legal expenses from a corporation, the court addressed the costs of the applications.

The respondent corporation sought substantial indemnity costs exceeding $559,000 or alternatively partial indemnity costs, while the applicants argued that costs should remain in the cause of the underlying indemnity issue.

The court held that although the respondent was largely successful, payment of costs should be contingent on the outcome of the trial determining entitlement to indemnity.

The court fixed partial indemnity costs of $25,000 for a related motion and $165,000 for the applications, subject to specific allocations among applicants and exceptions for one successful applicant and another who withdrew participation.

Following dismissal of a motion for summary judgment arising from claims connected to a Ponzi scheme, the court determined the appropriate costs award.

The plaintiffs argued that no costs should be awarded due to the novelty of the factual circumstances, but the court held that novelty alone does not justify departing from the usual rule that costs follow the event.

The defendants sought either substantial indemnity or partial indemnity costs.

The court declined to award substantial indemnity costs, finding the plaintiffs’ litigation strategy unsuccessful but not unreasonable.

Partial indemnity costs were awarded to each defendant, with modest reductions applied to certain claimed amounts.

The defendant moved to vacate Certificates of Pending Litigation obtained by the plaintiff on an ex parte basis over two properties.

The court held that a party seeking ex parte relief must make full and frank disclosure of all material facts.

The plaintiff failed to disclose a prior divorce settlement in which he had disclaimed any trust interest in the properties and misrepresented the contents of a lawyer’s letter regarding potential sale of the land.

These omissions and misrepresentations were material and could have influenced the original ex parte decision.

The court therefore set aside the order permitting the certificates, but required that 50% of the gross sale proceeds of the properties be paid into court as security pending resolution of the ownership dispute.

The appellant former directors and officers of Look Communications Inc. sought advance funding for their legal costs to defend an action brought against them by the corporation for breach of fiduciary duty.

The corporation resisted the claims under s. 124(4) of the Canada Business Corporations Act, arguing the appellants had not acted in good faith.

The application judge refused advance funding, finding the corporation had established a strong prima facie case of bad faith regarding equity cancellation payments and legal retainers.

The Court of Appeal dismissed the appeal, confirming that s. 124(4) applies to actions brought by the corporation and that the strong prima facie case standard is the appropriate test for denying advance funding.

The plaintiffs and defendants were all victims of a Ponzi scheme orchestrated by an investment advisor.

The plaintiffs, who were late entrants to the scheme, provided bank drafts directly payable to the defendants, who were early entrants, under the mistaken belief they were investing in legitimate bridge financing.

When the scheme collapsed, the plaintiffs sued the defendants for the return of their money, alleging unjust enrichment and mistake of fact.

The plaintiffs brought a consolidated motion for summary judgment.

The court dismissed the motion, finding genuine issues for trial regarding whether the defendants were unjustly enriched or if the payments were made under a mistake of fact, and noting that the novel legal issues and ongoing bankruptcy proceedings required a full trial.

The appellant surveyors prepared a reference plan that incorrectly portrayed a right of way as a straight line, failing to show a curve that circumvented a rock outcrop.

The reference plan was deposited on title.

A dispute arose between the neighbouring property owners over the use of the road.

The surveyors brought a motion to rectify the reference plan under section 160 of the Land Titles Act.

The motion judge dismissed the motion, holding that the registered title was indefeasible.

The Court of Appeal allowed the appeal, finding that a reference plan does not independently create an interest in land and that the court has jurisdiction to rectify the boundaries of the right of way.

A private prosecution brought by an environmental advocacy group against the owners and managers of a commercial office complex for regulatory offences related to bird deaths caused by collisions with the building's reflective glass.

The prosecution charged the defendants under three statutes: the Ontario Society for the Prevention of Cruelty to Animals Act, the Environmental Protection Act, and the federal Species at Risk Act.

The court found that the defendants committed the actus reus of two offences (EPA and SARA) but acquitted them on all charges after finding they exercised due diligence in addressing the bird strike problem.

On a summary judgment motion brought by solicitor defendants in a professional negligence and fiduciary duty action arising from an individual pension plan transaction, the court held the record could not satisfy the full appreciation test under rule 20.

The court found multiple triable issues, including the scope of an unwritten retainer, whether there was a duty to inform and warn the client about IPP compliance requirements, and whether a conflict of interest arose from repeated referral arrangements.

The court also found factual disputes regarding reliance on third-party experts and the solicitor's role in structuring and signing foundational corporate documentation.

Summary judgment was refused and the action, including cross-claims, was directed to proceed to trial.

Former directors, officers, and consultants of Look Communications Inc. sought interim advancement of their legal fees to defend against an action brought by Look alleging breach of fiduciary duty regarding bonus and equity cancellation payments.

The court held that s. 124(4) of the CBCA applies to actions brought directly by the corporation, requiring court approval for advancement.

The court found Look established a strong prima facie case of mala fides against the directors and officers, rebutting the presumption of good faith.

Advancement was denied for all applicants except one employee, Dolgonos, whose entitlement arose under an indemnity agreement not subject to s. 124(4).

The appellant corporation granted a guarantee and collateral mortgage to the respondent law firm to secure over $800,000 in unpaid legal fees owed by the appellant and related companies.

The appellant sought to rescind the guarantee, arguing its owner lacked authority and the law firm failed to recommend independent legal advice.

The Court of Appeal upheld the application judge's dismissal, finding that while the law firm breached the Rules of Professional Conduct by not recommending independent legal advice, the security remained enforceable because the transaction was fair, the client was sophisticated, and no advantage was taken.

Following a successful appeal regarding the right to issue third party claims, the appellants sought costs.

The parties agreed on the quantum of costs but disputed the timing of payment.

The Court of Appeal ordered costs payable forthwith, finding no special circumstances to justify a delay in payment.

The appellant appealed an order allowing the respondent to access $370,000 from frozen accounts to fund legal fees for an ongoing reference.

The Court of Appeal held that while the motion judge had jurisdiction to hear the motion, she erred in granting the relief.

The respondent failed to meet the burden of establishing that he had no other assets available to pay his legal fees, particularly given his son's refusal to answer questions about family resources during cross-examination.

The appeal was allowed and the underlying motion dismissed.

The appellants appealed an order refusing to fully vacate notices of garnishment issued against their bank accounts.

The appellants argued the garnishments conflicted with prior freezing orders that permitted them to use funds for legal fees.

The Court of Appeal (majority) dismissed the appeal, holding that the motion judge properly exercised his broad discretion under Rule 60.08(16) of the Rules of Civil Procedure to uphold the garnishments while allowing limited access to funds for legal fees, preventing the frustration of the respondent's judgment.

The appellant brought a motion to introduce fresh evidence on appeal regarding the enforcement of a Singapore judgment in Ontario.

The fresh evidence consisted of affidavits from a Singapore litigant who faced criminal contempt proceedings after criticizing the Singapore judicial system.

The Court of Appeal dismissed the motion, applying the Palmer test.

The court found that the evidence could have been obtained earlier with due diligence and, given its political context, would not have affected the outcome of the commercial dispute.

The appellant appealed a decision recognizing and enforcing a judgment granted against it by the High Court of the Republic of Singapore.

The appellant argued that the Singapore judgment should not be enforced because it was granted by a corrupt legal system with biased judges.

The Court of Appeal dismissed the appeal, finding that the foreign court properly assumed jurisdiction and that the appellant failed to establish the defences of public policy, bias, or lack of natural justice.

The court held that there was no cogent evidence of bias or corruption in private commercial cases in Singapore.