George Limberis

The defendant brought a motion for leave to appeal to the Divisional Court from a prior decision dismissing his motion to vary the terms of an interim injunction issued on consent.

The court considered rule 62.02(4) of the Rules of Civil Procedure governing leave to appeal.

It concluded that the moving party failed to meet the required onus under either branch of the rule.

The issues raised, while important to the parties, were not of sufficient importance to justify appellate review.

Leave to appeal was therefore refused.

The defendant, Daniel Sherk, brought a motion to vary a consent interlocutory injunction that prohibited him from soliciting or servicing clients of his former employer, Verge Insurance Brokers Limited.

He sought to suspend and amend the injunction under Rules 59.06(2)(b) and (d) of the Rules of Civil Procedure, arguing that the restrictive covenants had expired and the court had inherent jurisdiction to vary the order.

The court dismissed the motion, holding that a consent order can only be varied on the same grounds as a contract can be rectified, and that the court's inherent jurisdiction cannot be used to circumvent the express provisions of the Rules or to upset a fairly negotiated bargain.

The defendant franchisor appealed a motion judge's refusal to transfer the venue of a franchise dispute from Hamilton to Kitchener.

The defendant argued the motion judge erred by not requiring the plaintiffs' chosen venue to have a rational connection to the claim, relying on the Siemens decision.

The Divisional Court dismissed the appeal, clarifying that motions to change venue require a holistic application of the factors in Rule 13.1.02(2) of the Rules of Civil Procedure.

The court found no error in the motion judge's balancing of the factors and affirmed that a plaintiff's choice of venue, even if lacking a strong rational connection, may be upheld if the defendant fails to demonstrate that a transfer is desirable in the interests of justice.

The plaintiffs brought motions for an interlocutory injunction and for production of documents against the defendants, who were former employees and a competing insurance brokerage.

The injunction motion was settled and the production motion was stayed.

The plaintiffs sought substantial indemnity costs of over $390,000, arguing the defendants unnecessarily lengthened the proceedings and engaged in wrongdoing.

The court found the injunction component of the action was effectively spent, justifying fixing costs payable forthwith rather than in the cause.

The court awarded partial indemnity costs of $255,237, apportioned equally among the three responding defendants, after making deductions for services not directly related to the motions.

The defendant franchisor brought a motion to change the venue of a franchise dispute from Hamilton to Kitchener under Rule 13.1.02(2) of the Rules of Civil Procedure.

The action alleged breach of contract, negligence, bad faith, misrepresentation, and disclosure failures under the Arthur Wishart Act in relation to a franchise relationship.

The defendant argued that most defence witnesses were located in the Kitchener-Waterloo area and that Hamilton had no connection to the events.

The court applied a holistic analysis of the Rule 13.1.02 factors and held that the moving party bears the onus of demonstrating that the proposed venue is significantly more desirable in the interests of justice.

The court concluded that Hamilton was a rational and reasonable venue located between the parties and that the defendant failed to show Kitchener was significantly better.

The plaintiff lender brought a motion for summary judgment to recover monies loaned to a corporate borrower under a debenture.

The borrower acknowledged borrowing funds but disputed the precise amount owed and raised concerns about payment preference because multiple lenders were listed in the debenture.

The court found there were no genuine issues requiring a trial, concluding that default was established through non-payment since 2010 and the borrower’s insolvency.

Documentary evidence, including a series of cheques totaling nearly $3 million, established the indebtedness.

Summary judgment was granted for $2,800,000 with provision that payment be made in a manner that would avoid preferential treatment among lenders.

Following a lengthy motion and cross-motion concerning an ex parte order, the parties were unable to agree on costs.

The court reviewed written submissions regarding entitlement to costs.

The judge found the underlying motion results were mixed: the defendants failed in their cross-motion to set aside the ex parte order, while the plaintiff’s motion materials contained significant deficiencies that would normally have justified setting the order aside but for equitable considerations.

Given that both sides effectively lost aspects of the litigation, the court held that no party should receive costs.

The moving defendants sought to set aside a previously granted ex parte Mareva injunction and related orders, alleging the plaintiff failed to make full and fair disclosure when obtaining the original order.

The court considered allegations of multiple instances of non‑disclosure and misstatements, including failure to disclose certain agreements, undisclosed referral commissions, and a one‑sided interpretation of financial statements.

While the court found that the plaintiff had not fully met the stringent duty of full and frank disclosure required for ex parte relief, it held that setting aside the injunction would create an injustice given evidence suggesting insolvency, questionable financial practices, and potential dissipation of assets.

Exercising discretion, the court declined to dissolve the injunction and maintained the existing orders.

The defendants’ motion was therefore dismissed.

The Court of Appeal reviewed an application judge's decision regarding the priority of charges under the Land Titles Act.

The court found that the application judge failed to address whether post-assignment advances were made with actual notice under s. 93(4) of the Act.

The matter was remitted for the trial of an issue to determine if the $37,000 was an advance under the assigned charge and whether it was made with actual notice, without prejudice to returning the application on further evidence.

The appellant appealed a decision of the Fire Safety Commission upholding an Inspection Order that imposed conditions on burning brush on his farm.

The appellant argued the Inspector lacked jurisdiction and that the Commission's decision was procedurally unfair because it failed to provide reasons for upholding the conditions.

The Divisional Court found the Inspector had jurisdiction but agreed that the Commission's failure to provide reasons regarding the reasonableness of the conditions breached the duty of procedural fairness.

The appeal was allowed and the matter remitted to the Commission for reconsideration.