Eli S. Lederman

Following a merits decision finding that the respondents engaged in fraudulent conduct by diverting $234,864.04 from a solar energy fund contrary to its offering memorandum, the Capital Markets Tribunal held a hearing to determine sanctions and costs.

The Tribunal ordered disgorgement of the diverted funds, imposed administrative penalties totaling $476,000, and ordered the respondents to pay $112,500 in costs.

The Tribunal also imposed permanent market bans on the respondents, subject to limited carve-outs for personal trading and acting as directors of specific private family companies.

The appellant, Bluemoon Capital Ltd., appealed the dismissal of its application for a Norwich order and the quashing of a Rule 39.03 notice of examination.

The appellant, a shareholder of Ceridian HCM Holding Inc., sought pre-action discovery regarding the alleged undervaluation of LifeWorks Corporation Ltd. shares during Ceridian's 2018 distribution and subsequent sale to Morneau Shepell.

The application judge dismissed the Norwich order, finding it unnecessary and not in the interests of justice, and quashed the notice of examination as moot.

The Court of Appeal found no reversible error, affirming the application judge's discretionary decision that the appellant had sufficient information to commence its class action and that the Norwich order was not sought for a legitimate purpose.

The appeal was dismissed with costs awarded to the respondents.

The appellant, ALYU Inc., appealed a lower court decision regarding the interpretation of an Agreement of Purchase and Sale (APS) for commercial units.

ALYU argued that the estimated measurements in the APS should not include a proportional amount of common elements.

The application judge had interpreted the APS to include common elements, dismissing ALYU's application.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding error in the contractual interpretation.

The court affirmed that the BOMA 1996 Standard, referenced in the APS, requires the unit area to be "grossed-up" to account for common areas, and that the interpretation aligned with the parties' mutual objective intentions.

The appeal was dismissed with costs.

MediPharm brought an action against Hexo for unpaid invoices totaling $9,802,032.78 under a cannabis resin supply agreement.

Hexo counterclaimed against MediPharm for breach of contract and bad faith, and against Peter Hwang, a former director of the acquired company, for breach of fiduciary duty.

MediPharm and Hwang brought motions for summary judgment.

The court granted the motions, finding no genuine issue for trial.

Hexo failed to adduce evidence of bad faith by MediPharm or self-dealing by Hwang, whose decisions were protected by the business judgment rule.

Hexo was ordered to pay the outstanding invoices.

The appellant physician appealed a decision of the Discipline Committee finding he committed professional misconduct by sexually abusing an adolescent patient and engaging in disgraceful conduct towards another adolescent boy.

The Committee ordered the mandatory revocation of his certificate of registration.

On appeal, the appellant argued the Committee made palpable and overriding errors of fact and held his evidence to an uneven standard of scrutiny.

The Divisional Court dismissed the appeal, finding the Committee properly evaluated the evidence, made reasonable credibility findings, and correctly concluded the conduct amounted to masturbation requiring mandatory revocation.

The applicants sought damages under a share purchase agreement for revenue and license milestone payments, and a working capital adjustment for tax credits.

The court interpreted the SPA provisions, including the "Unearned Milestone Payment Commitment" in the event of an Indirect Sale Transaction, and considered the purchaser's duty of good faith.

The court dismissed claims for milestone payments, finding the contract terms unambiguous and no actionable breach of good faith regarding impediments to earning milestones.

However, the court found a breach of the duty of honest performance for failing to disclose a delay in the closing date of the Indirect Sale Transaction, but no damages flowed from this breach as the applicants could not prove a lost opportunity.

The applicants were awarded the SR&ED tax credits without deduction for consultant fees.

The appellant brought a motion for leave to appeal a prior order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the all-inclusive amount of $1,500.

The applicant purchased two commercial condominium units from the respondent developer.

The purchase price was to be adjusted based on the 'actual gross area' of the units, calculated in accordance with the BOMA 1996 Standard.

The applicant argued the price should be based only on the net usable area, while the respondent argued it must include a gross-up for floor and building common areas.

The court dismissed the application, finding that the contract's explicit reference to the BOMA 1996 Standard objectively demonstrated the parties' intention to include the proportionate share of common areas in the calculation of the purchase price.

The applicant sought a Norwich order for pre-action discovery against the respondents to obtain documents relating to a corporate distribution and subsequent acquisition.

The respondents brought motions to quash a notice of examination and for a sealing order over confidential tax information.

The court dismissed the application for a Norwich order, finding the applicant had sufficient information to commence its claims and lacked a legitimate objective.

The court granted the sealing order to protect highly sensitive tax information and quashed the notice of examination as an abuse of process.

Costs decision following the dismissal of the plaintiff's motion for an interlocutory injunction and the dismissal of the defendant XTM's cross-motion for summary judgment.

The court declined to award substantial indemnity costs to either party.

The court awarded net partial indemnity costs of $25,000 to XTM.

The court also awarded partial indemnity costs of $15,000 to amicus curiae representing the self-represented defendants, and $3,982.69 for disbursements incurred directly by the self-represented defendants.

The moving party, XTM, Inc., brought a motion for leave to appeal the order of Justice R.A. Lococo dated August 12, 2021.

The Divisional Court dismissed the motion for leave to appeal without costs.

The plaintiff brought a motion for a mandatory interlocutory injunction against its former Chief Technology Officer and a competitor, seeking the return or destruction of alleged confidential information.

The competitor brought a cross-motion for summary judgment to dismiss the action against it.

The court dismissed the injunction motion, finding the plaintiff failed to establish irreparable harm or that the balance of convenience favoured granting the order, largely due to a 22-month delay in pursuing the motion.

The court also dismissed the summary judgment motion, finding genuine issues requiring a trial regarding the competitor's knowing involvement and the causation of the plaintiff's loss of a major client.

The defendant by counterclaim brought a motion for the production of due diligence documents related to a corporate acquisition, arguing they were relevant and that any solicitor-client privilege had been impliedly waived.

The court dismissed the motion, finding that the broad request for acquisition due diligence was not relevant to the specific claims regarding a separate supply agreement.

Furthermore, the court held that the documents were protected by solicitor-client privilege, which had not been waived because the responding party did not put its reliance on legal advice at issue in its pleadings.

The four Libfeld brothers, equal owners of The Conservatory Group (a multi-billion dollar real estate development business), experienced a complete and irreparable breakdown of their personal and professional relationships.

The applicants sought various remedies including a restructuring protocol or a restricted wind-up, while the respondents sought a buy-sell process or a structured buyout.

The court found no actionable oppression by any party, attributing the disputes to extreme mutual dysfunction.

Concluding that the brothers could no longer work together and that none of their proposed remedies were workable or fair, the court ordered a court-supervised wind-up and sale of the business under the OBCA and Partnerships Act, permitting all brothers to participate as bidders.

The defendants appealed a Master's decision declining to dismiss the plaintiff's action for delay under Rule 48.14 and instead imposing a timetable.

The underlying action involved a claim for indemnification from escrow funds following a share purchase agreement.

The Superior Court of Justice dismissed the appeal, finding that the Master applied the correct two-part test from Kara v. Arnold, properly considered the contextual factors including the defendants' own delay in filing a statement of defence, and made no palpable and overriding error in concluding the plaintiff had an adequate explanation for delay and the defendants suffered no non-compensable prejudice.

Staff of the Ontario Securities Commission brought a motion to adduce an expert report at an upcoming merits hearing regarding alleged misleading statements and fraud by the respondents in relation to a solar energy investment fund.

The respondents objected to the report's admissibility.

The Commission first determined that it was appropriate to decide the admissibility issue at a preliminary stage before the merits hearing, applying the Mega-C test.

On the merits of the admissibility, the Commission held that the expert's opinions on solar industry norms were rendered irrelevant by the respondents' undertaking not to lead evidence or make submissions on those points.

The expert's opinion on the reasonable expectations of investors was deemed unnecessary as it fell within the Commission's own expertise.

Consequently, the expert report was ruled inadmissible.

Following a successful appeal where the court suggested wording to amend section 22 of a condominium declaration regarding the duty to repair and maintain, the parties were unable to agree on the final wording.

The appellant accepted the court's proposed wording, while the respondents sought different wording and the removal of a paragraph from the earlier reasons.

The Court of Appeal rejected the respondents' submissions as an attempt to reargue the decided issues and ordered that the formal order reflect the court's originally proposed wording.

The plaintiff was successful on a status hearing motion to prevent the dismissal of its action for delay.

The parties could not agree on costs.

The plaintiff sought $35,000, while the unsuccessful defendants sought $30,225.24, arguing the motion was only necessary due to the plaintiff's inaction.

The court awarded costs of $20,000 to the defendants on a partial indemnity basis, finding it was reasonable for them to compel the plaintiff to show cause and noting the plaintiff's primary explanation for the delay was inaccurate.

The appellant condominium corporation appealed a decision refusing to amend its declaration under s. 109(3) of the Condominium Act.

The dispute centered on who should bear the cost of replacing deteriorated chimney flues that exclusively serviced 22 residential units.

The Court of Appeal found that the application judge erred in concluding there was no inconsistency between sections 22 and 23 of the declaration.

The Court held that the sections failed to clearly delineate the responsibilities for repairing exclusive use common elements after normal wear and tear, creating an unworkable mutual obligation.

The appeal was allowed and an order was granted to amend the declaration to clarify that unit owners are responsible for maintaining and repairing exclusive use common elements at their own expense.

The applicant condominium corporation sought to amend its Declaration under section 109 of the Condominium Act, 1998, to address issues concerning wood-burning fireplaces and chimney flues.

Specifically, it requested amendments to designate chimney flues as exclusive use common elements, to shift the responsibility for their maintenance and repair from the corporation to the unit owners, and to redefine unit boundaries to include the entire length of the chimney flues.

The court granted the order to amend the Declaration to specify the chimney flues as exclusive use common elements, finding an error in the original Declaration's omission to specify such elements.

However, the court dismissed the requests to alter the maintenance and repair obligations, concluding there was no error or inconsistency in the existing mutual duties, and rejected the proposed redefinition of unit boundaries, finding the current description unambiguous.