Gordon W. Vance

The applicants challenged the validity of a purported will dated September 10, 2020, allegedly made by Kenneth Ryan Hill, a wealthy status Indian and permanent resident of the Six Nations of the Grand River Reserve.

The will named the respondent, Mr. Hill's son, as executor and left his interest in Grand River Enterprises (worth approximately $38 million) to him, with bequests of $5 million to each of his other children (except two who received nothing or $3 million).

The applicants argued that Mr. Hill did not sign the will and did not know and approve of its contents.

The court found that the respondent failed to establish that Mr. Hill signed the purported will and that suspicious circumstances surrounded its execution.

The court also found that the respondent failed to prove that Mr. Hill knew and approved of the will's contents.

The purported will was declared invalid both under the Indian Act and at common law.

The appellants, limited partners in a family-owned limited partnership, appealed the dismissal of their application seeking a declaration that they were entitled to an annual cash distribution of 100% of the partnership's net income.

They argued that section 11(1) of the Limited Partnerships Act and the Accumulations Act mandated such distributions, overriding the general partner's discretion under the limited partnership agreement.

The Court of Appeal dismissed the appeal, holding that the right to a 'share' of profits under the Act does not equate to a statutory obligation to make annual payments, and that the Accumulations Act does not apply to commercial endeavours.

The plaintiffs brought a motion for summary judgment in a breach of contract action against a home builder.

The defendant objected to certain paragraphs in the plaintiff's supporting affidavit, arguing they contained evidence of settlement negotiations and should be struck.

At a case conference to determine the timing of the defendant's challenge, the court applied the hybrid approach to striking affidavits and held that the admissibility of the impugned paragraphs should be determined by the judge hearing the summary judgment motion, rather than in a pre-emptive motion.

This is a costs endorsement following a grouped set of appeals and cross-appeals where all parties were entirely unsuccessful.

The court declined to award costs, rejecting the franchisor parties' argument to parse success across various elements of the appeals and cross-appeals.

The court found it inappropriate to do so, concluding that since no party achieved any degree of success, no costs should be awarded.

This is a costs endorsement from the Court of Appeal for Ontario concerning multiple appeals and a motion.

The court ordered that all parties bear their own costs for the appeals and the motion before the lower court, indicating a balanced outcome on the issue of costs.

The Court of Appeal for Ontario heard appeals and a cross-appeal concerning a franchise dispute under the Arthur Wishart Act.

Franchisees Versatile Holdings Inc. and Everest Group Inc. appealed the dismissal of their rescission actions, arguing errors in the burden of proof for disclosure deficiencies and the determination of franchisor's associates.

The franchisor, Paramount Franchise Group Inc., cross-appealed the trial judge's finding that Premium Host Inc. was entitled to statutory compensation, challenging disclosure exemptions, the effect of contract termination on rescission rights, material omission of financial statements, and the finding that Holly Graham and Paramount Leasing were franchisor's associates.

The Court dismissed all appeals and the cross-appeal, affirming the trial judge's findings on the burden of proof for rescission, the non-applicability of disclosure exemptions, the right to rescind despite prior termination for breach, the materiality of the financial omission, and the determination of franchisor's associates.

This appeal addresses whether limited partners can bring a common law derivative action on behalf of a limited partnership.

The Court of Appeal for Ontario held that while limited partners have direct causes of action against a general partner for breach of fiduciary duty or contract, negating the need for a derivative action in such cases, a common law derivative action may be available against third parties who have harmed the limited partnership, particularly when the general partner is in a conflict of interest and refuses to act.

The court dismissed the derivative action against the general partner and its director but granted leave for a derivative action against the three third parties, establishing a test for such leave.

The Plaintiffs brought a motion for a Mareva injunction and a Norwich Order against the Defendants, alleging fraud and misappropriation of approximately $700,000 in foreign currency reserves.

The court found a strong prima facie case of fraud, irreparable harm, and a serious risk of asset dissipation by the Defendants.

Consequently, the Mareva injunction was granted to restrain the Defendants from dissipating assets, and a Norwich Order was issued compelling financial institutions to disclose information for asset tracing.

The Plaintiffs' alternative request for a Certificate of Pending Litigation was not addressed given the primary relief granted.

The Applicants, limited partners in Binscarth Holdings L.P., sought declarations that they were entitled to annual cash distributions of the partnership's net income, arguing the Limited Partnership Agreement (LPA) contravened the Limited Partnerships Act and the Accumulations Act, or that a specific tax distribution clause in the LPA mandated a higher payout.

The court dismissed all claims.

It found that the Limited Partnerships Act only requires profits to be credited to capital accounts, not mandating cash distributions, and that the LPA's discretionary distribution power was valid.

The court also determined the Accumulations Act did not apply to this commercial partnership transaction and that the applicants had waived any rights under it.

Finally, the court upheld the general partner's interpretation and calculation of tax-related distributions under the LPA.

The appellants, Rouzbeh Behrouz and Majestic Food Service Inc., appealed an order giving effect to a Letter Rogatory from a U.S. District Court, compelling testimony and document production for a U.S. proceeding alleging violations of Iran-trade embargo laws.

The appellants argued the application judge erred by admitting inadmissible hearsay and failing to properly apply the Friction factors.

The Court of Appeal dismissed the appeal, finding no reversible error.

The court affirmed the application judge's reliance on evidence for determining relevance and necessity, and his proper application of the Friction factors and balancing of Canadian sovereignty with the enforcement request.

The court also agreed that the evidence sought was not otherwise obtainable, deferring to the U.S. court's conclusion and noting that Canadian residents are not compellable witnesses in U.S. proceedings for testimony or document production.

In a will challenge and dependants' support proceeding, the moving parties sought production of financial records from Grand River Enterprises Six Nations Ltd. (GRE), a third-party corporation in which the deceased held a 12.5% interest, and leave to examine two non-parties regarding the deceased's will.

The court granted both motions, finding that the financial records were relevant to valuing the estate and assessing the testamentary sense of the will, and that the non-parties possessed relevant information not obtainable elsewhere.

This decision addresses costs arising from an application to appoint an arbitrator in a dispute over a new home purchase agreement.

The applicants, purchasers, sought an arbitrator after alleging the vendor (respondent) breached the agreement and they terminated it.

The respondent initially opposed arbitration but later agreed after the applicants' termination notice.

The court had previously ruled in favor of the applicants' choice of arbitrator but reserved on costs.

This decision awards costs to the respondent for the period prior to the applicants' termination notice, finding that the arbitration clause, which related to termination disputes, was not triggered until actual termination occurred.

The court found the applicants' interpretation of the arbitration agreement did not justify enhanced costs, and awarded a net amount of $7,500 in costs to the respondent.

This endorsement addresses the costs arising from a denied urgent Norwich motion brought by the plaintiffs.

The court found no urgency for the Norwich order and determined that the defendant was entitled to costs.

The defendant sought costs on a substantial indemnity basis, while the plaintiffs argued for partial indemnity and payment in the cause, with a reduction for the defendant's alleged delay in retaining counsel and a cross-motion.

The court rejected the plaintiffs' arguments, finding no reason to delay the costs award or discount the defendant's costs.

The court ordered the plaintiffs to pay the defendant $50,000 in all-inclusive costs forthwith on a substantial indemnity scale.

The plaintiffs brought an urgent motion for a Norwich order to compel disclosure of information related to alleged defamation and intrusion upon seclusion, stemming from internet postings and domain name purchases.

The court found no urgency, questioned the validity of the intrusion upon seclusion claim regarding dormant domain names, and noted the defamation claim was weak as the articles had been removed.

The motion was deemed a potential tactical move related to ongoing commercial litigation between the parties.

The court dismissed the motion, finding it was not justified for a Norwich order and was akin to a fishing expedition.

This is a costs endorsement following motions by three groups of defendants to strike the plaintiff's fresh as amended statement of claim.

The court had previously substantially granted the motion by the 1Plus12 Corporation defendants, dismissed the motions by the Ricci and Karp defendants to strike the statement of claim against them, and struck the plaintiff's affidavit.

This endorsement determines the costs payable between the parties.

The 1Plus12 defendants were awarded $17,000 in partial indemnity costs from the plaintiff, as they were substantially successful.

The Ricci defendants were awarded $9,000 in partial indemnity costs from the plaintiff, despite their motion to stay being dismissed, due to the necessity of responding to allegations of criminal conduct that were struck.

No costs were awarded to or against the Karp defendants, as their motion to strike the claim against them was dismissed, although they succeeded in striking the plaintiff's affidavit.

The applicants sought to enforce letters rogatory issued by a Michigan court in a civil criminal-enterprise proceeding.

The application, initially against seven non-parties, was bifurcated to focus on two respondents, Rouzbeh Behrouz and Majestic Food Services, Inc., who later became parties to the Michigan action and opposed the letters rogatory.

The court addressed significant evidentiary challenges, particularly regarding hearsay, clarifying that the Ontario court's role is not to determine the truth of allegations but whether the evidence sought is relevant and necessary for the foreign court.

The court found that the applicants satisfied the prerequisites and criteria for enforcing letters rogatory, including relevance, necessity, and unobtainability of evidence, and that granting the order was not contrary to public policy.

The application was granted.

The moving parties, Eliezer Karp and DJD Law Professional Corporation, brought a motion for leave to appeal an order of A.P. Ramsay J. dated November 21, 2022.

The Divisional Court dismissed the motion for leave to appeal.

As neither party uploaded costs outlines or bills of costs, no costs were ordered.

The Ontario Securities Commission (OSC) appealed a motion judge's decision to strike its fraudulent conveyance claims under section 2 of the Fraudulent Conveyance Act.

The motion judge had found the pleadings insufficient to establish standing for subsequent creditors.

The Court of Appeal clarified that subsequent creditors can challenge a transfer if it was made with the general intent to defraud creditors, whether present or future.

The Court found the OSC's pleadings contained sufficient "badges of fraud" to support the claim, including the transfer of property for no consideration, a close relationship between parties, and an intent to avoid future business liabilities.

The appeal was allowed, reinstating the fraudulent conveyance claims regarding both the property transfer and subsequent payments.

The moving parties brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000.

The plaintiff, a co-founder of 1PLUS12, brought an action against numerous defendants, including the corporation's lawyers and investors, alleging a Ponzi scheme and claiming unpaid compensation.

Several groups of defendants brought motions to strike the statement of claim under Rules 21.01 and 25.11 of the Rules of Civil Procedure.

The court struck the plaintiff's affidavit and the claims against the investors, finding the plaintiff lacked standing to advance claims on their behalf.

The court also struck certain scandalous and irrelevant paragraphs from the pleadings.

However, the court dismissed the motions to strike the entirety of the claims against the defendant lawyers and law firms, finding it was not plain and obvious that the claims for negligence and misrepresentation would fail.