Gordon Dewar Capern

Application and cross-application concerning a municipal site-specific by-law aimed at clearing a longstanding homeless encampment to facilitate a transit hub project.

The court held that the by-law infringed s. 7 because closing the only lawful sheltering site of last resort in a region with grossly insufficient accessible indoor shelter exposed chronically homeless persons to serious risks to life, liberty, and security of the person in a manner grossly disproportionate to the by-law’s objective.

The court further held that the by-law infringed s. 15 by disproportionately burdening homeless persons who were women, gender-diverse, disabled, and Indigenous, and also recognized homelessness itself as an analogous ground under s. 15.

The infringements were not saved under s. 1, the bad-faith challenge under s. 273 of the Municipal Act failed, and the court declared the by-laws of no force and effect, restrained enforcement, and retained jurisdiction for further directions if a lawful alternative tenting protocol or site is implemented.

Following a trial judgment awarding the plaintiff $2.54 million in damages for wrongful dismissal, the court determined costs and pre-judgment interest.

The plaintiff sought substantial indemnity costs based on pre-trial offers to settle and an elevated pre-judgment interest rate.

The court found the plaintiff did not beat his initial offer due to a pre-trial payment by the defendant, and his amended offer was made too late to trigger Rule 49.10.

The court declined to exercise its discretion to award elevated costs, finding no reprehensible conduct by the defendant.

The court also declined to depart from the prescribed pre-judgment interest rate of 2.0%, finding no unusual circumstances to justify a higher rate.

Costs were awarded on a partial indemnity scale in the amount of $798,453.91.

The plaintiff, a 52-year-old Managing Director in investment banking with 18 years of service, was terminated without cause.

The court determined the reasonable notice period to be 21 months, considering his age, length of service, and specialized role.

The court used a comparator approach to calculate the plaintiff's lost bonuses during the notice period, rejecting the employer's averaging approach due to the highly cyclical nature of the mining market and the employer's record profits during the notice period.

After deducting mitigation earnings and severance already paid, the court awarded the plaintiff $2,540,073.95 in damages.

The appellant sought to enforce a Chilean arbitral award in Ontario against the respondent, a non-party to the arbitration, arguing the respondent assumed the judgment debtor's liabilities through an Italian spin-off agreement.

The motion judge stayed the enforcement application on the basis of forum non conveniens, finding that the threshold issue of liability must be determined first and that Italy was the clearly more appropriate forum.

The Court of Appeal dismissed the appeal, holding that the motion judge did not err in severing liability from enforcement, applying the forum non conveniens doctrine, or granting a temporary stay pending the resolution of Italian proceedings.

This is a costs decision following the applicant's successful recovery of a loan in the principal amount of approximately $14 million plus accrued interest.

The applicant sought full indemnity costs of $125,890 based on a provision in the loan agreement, while the respondents argued for partial indemnity costs of $50,000.

The court found that the loan agreement provision was sufficiently clear to encompass enforcement costs and awarded substantial indemnity costs of $108,000 inclusive of fees, HST and disbursements.

The court granted judgment in favour of V2 Investment Holdings Inc. for a $12.9 million loan made to Sam Mizrahi and related corporate respondents, finding the debt liquidated and undisputed.

The respondents' arguments of bad faith and equitable set-off, based on alleged promises regarding mortgage registration and intercreditor agreements, were rejected as unsupported by the evidence.

The court found no binding agreement to amend the loan or enter a standstill, and no breach of the duty of honest performance.

Judgment was granted for the outstanding amount plus interest, with directions for further submissions on costs and interest calculations.

The respondent, Webuild S.P.A., brought a motion to stay an application by Sociedad Concesionaria Metropolitana De Salud S.A. (SCMS) to enforce a Chilean arbitral award in Ontario.

The award was originally against Astaldi S.p.A., and SCMS sought to enforce it against Webuild, arguing Webuild assumed Astaldi's liabilities through an Italian restructuring proceeding.

Webuild contended that the threshold issue of liability assumption under Italian law should be determined in Italy.

The court granted Webuild's motion for a temporary stay, finding Italy to be the forum non conveniens for this complex issue, citing the need to avoid conflicting judgments and costly duplication of resources across multiple jurisdictions.

The appellants appealed a motion judge's decision dismissing their summary judgment motion and granting summary judgment and a permanent stay to the respondents.

The core issue was the appellants' failure to immediately disclose settlement agreements with other defendants, which altered the litigation's adversarial landscape.

The Court of Appeal affirmed the motion judge's finding that these contingent settlement agreements, which included provisions for private evidence gathering and financial incentives for cooperation, changed the adversarial relationship into a cooperative one, triggering the immediate disclosure rule from Handley Estate.

The court reiterated that immediate disclosure is mandatory, regardless of contingencies or confidentiality clauses, and that a stay of proceedings is the appropriate remedy for such an abuse of process.

The appeal was dismissed.

Appeal from a preliminary arbitral award in a dispute arising from a lawyer's departure from a law firm and the transfer of numerous former client files.

The appellant argued that solicitor undertakings and contingency fee agreements, rather than the departure clause in the respondent's employment agreement, should govern the firm's entitlement to fees.

The court held that the undertakings were rejected and, in any event, merged into the settlement agreement, and that the respondent remained an employee when he left the firm.

The arbitrator made no reviewable legal error in concluding that the employment agreement departure clause governed the fee split issue.

The appeal was dismissed.

The plaintiffs in a price-fixing class action regarding electrolytic capacitors moved for court approval of a $5.9 million settlement with the Panasonic defendants, as well as approval of class counsel fees and disbursements.

The court found the settlement, which included significant cooperation from the settling defendants, to be fair, reasonable, and in the best interests of the class.

The court also approved the retainer agreements and the requested class counsel fees of $1,487,500 (25% of the settlement) and disbursements of $141,866.96, noting the complexity and risk of the litigation.

The plaintiff in a class action alleging a price-fixing conspiracy regarding film capacitors moved for approval of a settlement with the Panasonic defendants and for approval of class counsel fees.

The court found the $1.35 million settlement, which included valuable cooperation from the settling defendants, to be fair and reasonable despite being heavily discounted from the estimated exposure.

The court also approved the requested class counsel fees of 25% of the settlement, but ordered the payment to be split into two installments to incentivize counsel to advance the litigation more expeditiously.

The plaintiffs brought a motion for summary judgment against the defendants Elko and its principal for knowing receipt and knowing assistance, alleging they participated in a scheme to divert business from a family company to avoid a prior judgment.

Elko brought a motion to stay the action because the plaintiffs failed to disclose settlement agreements with co-defendants that changed the adversarial landscape.

The court dismissed the plaintiffs' motion and granted summary judgment in favour of Elko, finding no evidence that Elko had actual or constructive knowledge of the breach of fiduciary duty.

In the alternative, the court held it would have permanently stayed the action due to the plaintiffs' failure to immediately disclose the settlement agreements, which prejudiced Elko.

The appellant sought to set aside an order enforcing a settlement agreement.

The appellant was a fully informed participant in the settlement, acting on legal advice, and knowingly entered into the settlement structured in the manner challenged on appeal.

The Court of Appeal found no illegality or impropriety in the enforcement of the settlement and upheld the motion judge's decision to enforce it.

The court also upheld the costs award made by the motion judge.

The defendants brought a motion to strike paragraphs in the plaintiffs' amended statement of claim alleging financial improprieties by the individual defendants.

The defendants argued that under Rea v. Wildeboer, these were derivative claims that could not be pursued in a personal oppression action.

The court dismissed the motion, finding that the claims were 'individualized claims' because the plaintiffs sought to adjust the historical earnings of the corporation to determine the fair value of their shares following their alleged wrongful termination.

The court held that in the context of a closely held corporation, there is a defensible basis for overlap between personal and derivative claims.

The appellants appealed a decision of the Ontario Securities Commission finding them liable for insider trading and tipping contrary to s. 76 of the Securities Act.

The Commission found that a corporate lawyer tipped an investment advisor about three corporate transactions, who then tipped others in a chain.

The Divisional Court upheld the findings against the lawyer and three of the investment advisors, finding the Commission's inferences from circumstantial evidence were reasonable.

However, the court allowed the appeal of one investment advisor at the end of the chain, finding the Commission made factual errors in concluding he ought reasonably to have known the information came from an insider.

The sanctions against the unsuccessful appellants were upheld.

The Court of Appeal for Ontario issued a costs endorsement following an appeal and motion for leave to appeal under the Companies' Creditors Arrangement Act.

The court fixed the costs of the appeal and the motion for leave to appeal at $25,000, inclusive of disbursements and taxes, payable by the appellant union to the respondent.

The appellant union appealed a decision finding that the CCAA judge had no jurisdiction to apply the American doctrine of equitable subordination to subordinate the claims of the respondent parent company.

The Court of Appeal dismissed the appeal, holding that the CCAA does not provide express or implied authority to apply equitable subordination, and that the doctrine does not fall within the scheme of the statute, which focuses on the implementation of a plan of arrangement or compromise rather than legislating a scheme of priorities.

The plaintiff, Husky, brought an action against its founder, Robert Schad, his new company Athena, and others, alleging misuse of confidential information relating to injection molding machines.

Husky claimed that Athena accessed confidential information from Husky machines placed at a third-party facility (Niigon) and used it to develop competing machines.

The defendants argued the claims were statute-barred, that most issues were settled during prior negotiations, and that no confidential information was misused.

The court dismissed Husky's claims, finding they were statute-barred as Husky knew of the material facts more than two years before commencing the action.

The court also found that the commercially available machines were not confidential, and that Athena did not make material use of any confidential information from the prototype machines.

Athena's counterclaim for abuse of process and injurious falsehood was also dismissed for lack of evidence.

In the CCAA proceedings of U.S. Steel Canada Inc., its parent company, United States Steel Corporation, sought approval of several proofs of claim totaling over $2 billion.

Various stakeholders objected, arguing that the intercompany loans should be re-characterized as 'equity claims' under the CCAA and that the security granted for certain advances was void as a fraudulent preference or unenforceable for lack of consideration.

The court rejected the objections, finding that the parent company had a reasonable expectation of repayment when the advances were made, and that the security was validly granted for fresh consideration and did not constitute a fraudulent preference.

The claims were confirmed as debt claims.

In the context of CCAA proceedings for U.S. Steel Canada Inc. (USSC), the applicant sought approval for Transition Arrangements with its parent company, a Business Preservation Plan involving significant cash conservation measures (including suspension of pension, OPEB, and municipal tax payments), and Amended DIP Financing.

The court approved the motions, finding that the Transition Arrangements were fair and reasonable, and that the Business Preservation Plan and DIP financing were necessary to allow USSC to continue operations and pursue a restructuring solution, despite objections from the union and municipalities regarding the suspension of benefits and taxes.