Harold James Marin

The plaintiffs brought a motion to approve the settlement of a securities misrepresentation class action against Canada Lithium Corp. and its directors and officers.

The corporate defendant had become insolvent and the only remaining asset was a wasting directors and officers insurance policy.

The parties agreed to settle the action for $400,000, which would be paid entirely to class counsel for fees and disbursements, with no distribution to class members.

The court approved the settlement and the fee request, finding that further litigation would only deplete the insurance policy and that the settlement was fair, reasonable, and in the best interests of the class under the circumstances.

The moving party sought leave to appeal to the Divisional Court from a motion judge’s dismissal of its summary judgment motion in a commercial dispute arising from an aborted generator sale.

The underlying action alleged breach of contract, misrepresentation, and unjust enrichment against corporate defendants involved in the project.

Applying Rule 62.02 of the Rules of Civil Procedure, the court held that leave to appeal should only be granted in strict circumstances, requiring either a conflicting decision on a matter of principle or serious doubt about the correctness of the order combined with issues of public importance.

The court found that the motion judge’s decision involved factual disputes, credibility assessments, and discretionary determinations properly reserved for trial.

The moving party failed to demonstrate a conflicting decision, a serious doubt about correctness, or broader issues warranting appellate review.

The moving defendant sought summary judgment dismissing claims for breach of contract, misrepresentation, and unjust enrichment arising from negotiations for the purchase of a steam turbine generator for a co‑generation project.

The plaintiffs alleged that a binding contract arose from a purchase order and letter of intent and that the moving defendant participated in the negotiations and misrepresented issues affecting the project.

The moving party argued no contract was ever concluded and that any dealings were solely with a related corporate entity.

Applying the principles from Hryniak v. Mauldin, the court held that genuine issues requiring a trial existed, including the role of the moving defendant in negotiations, whether contractual relations were formed, and whether misrepresentations or unjust enrichment occurred.

Given the complex factual matrix and credibility issues, summary judgment was inappropriate.

The court determined the costs of two underlying motions regarding discovery obligations and the production of a settlement agreement.

Although the defendant was successful on the principal issue argued, the plaintiff's motion was initially necessary to enforce discovery obligations.

Finding that neither party 'won' the motions when viewed in context, the court ordered that the costs of both motions be costs in the cause.

Following dismissal of a motion to compel arbitration, appoint an arbitrator, and stay the action, the court determined the defendants' costs entitlement.

The successful defendants sought substantial indemnity costs based on service timing complaints, an unaccepted offer to settle, and alleged improper submissions by the plaintiff.

The court rejected those bases for elevated costs, held that the offer to settle did not justify a costs advantage, and applied the Rule 57 factors.

Partial indemnity costs were fixed at $10,000 inclusive of disbursements and HST, payable within 30 days.

On a discovery motion arising from related contract actions over a failed electrical generating project, the court considered whether a release executed between the defendant and a non-party utility had to be produced.

Applying the modern law of settlement privilege as a distinct class privilege, the court held the release was presumptively privileged and that no exception was justified because disclosure was not critical to doing justice in the underlying litigation.

A dispute over accounting source data was not ultimately argued after affidavit evidence and inspection access were offered.

The court declined to order follow-up oral discovery in the abstract and directed counsel to confer on an amended discovery plan.

The plaintiff brought a motion seeking to compel the defendants to participate in binding arbitration, appoint an arbitrator, and stay the court action pending arbitration arising from a commercial services contract.

The contract containing the arbitration clause was between the plaintiff and one defendant only, while the action also named a second defendant who was not a party to the arbitration agreement.

The court held that under s. 7 of the Arbitration Act, 1991 a party who commenced a court proceeding cannot move for a stay of that proceeding in favour of arbitration.

The court further found that compelling arbitration against only one defendant while staying the action against the other would risk multiplicity of proceedings and inconsistent results.

The motion was dismissed and the matter allowed to proceed in a single court proceeding.

The respondent invested $57,000 in a fraudulent investment scheme through the appellant and a third party.

The trial judge found the appellant liable for the loss based on a breach of constructive trust as a trustee de son tort.

The Court of Appeal allowed the appeal, holding that the trial judge erred by deciding liability on a theory that was not pleaded.

Furthermore, the Court found no evidentiary basis for a breach of trust, as the appellant did not guarantee the investment or participate in any wrongdoing.

The plaintiff sought recovery of $57,000 paid to the defendant in connection with a fraudulent investment scheme involving purported shares in a company referred to as STS.

The court found that the plaintiff delivered a cheque payable to the defendant for the sole purpose of applying the funds to purchase STS shares.

Instead, the funds were deposited into a joint account controlled by the defendant and another individual and were largely applied to other purposes before a later cheque was issued that did not secure shares for the plaintiff.

The court held that the circumstances gave rise to a constructive trust and that the defendant, by facilitating the misapplication of the funds, became liable as a trustee de son tort.

The court rejected the defendant’s limitation period defence, finding that the equitable claim for breach of constructive trust was not time-barred under the applicable transitional provisions of the Limitations Act, 2002.

The appellant, a Canadian mining company headquartered in Ontario, sued its former chief operating officer, an Australian national, for breach of contract and fiduciary duty relating to a mining project in Serbia.

The motion judge dismissed the action for want of jurisdiction and stayed it on grounds of forum non conveniens.

The Court of Appeal allowed the appeal, finding a real and substantial connection to Ontario because the employment contract was governed by Ontario law, damages were sustained in Ontario, and the respondent had significant ongoing contact with the province.

The Court also held that the respondent failed to demonstrate that another jurisdiction was clearly more appropriate.

The defendants brought a motion for leave to appeal a decision refusing their request for a stay of the Ontario proceedings.

The motions judge had concluded that Ontario, not New Brunswick, was the appropriate forum based on the contract's attornment clause and a forum non conveniens analysis.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motions judge's order.

The appellant appealed and the respondents cross-appealed a trial judgment awarding damages to the appellant based on negligent misrepresentation.

The Court of Appeal found that negligent misrepresentation was not pleaded and the trial judge's findings regarding non-disclosure of a commission were contradicted by the appellant's own admission.

Furthermore, there was no evidence of reliance.

The appeal was dismissed, the cross-appeal was allowed, and the counterclaim was dismissed.

The respondent landlord leased commercial premises to a corporate tenant within the Brick enterprise.

The lease was subsequently assigned and sublet to other entities within the enterprise.

When the sub-tenant vacated the premises early and stopped paying rent, the landlord sued the parent corporation, arguing it was liable under a Consent and Acknowledgement agreement and the oppression remedy.

The trial judge found liability under the oppression remedy.

The Court of Appeal dismissed the appeal, finding that the parent corporation was directly liable to the landlord for the unpaid rent under the terms of the Consent and Acknowledgement agreement, making it unnecessary to rely on the oppression remedy.

The appellants appealed a costs order of $691,304.74 on a substantial indemnity basis, awarded after the respondents successfully moved to set aside an ex parte Mareva injunction and Anton Piller order.

The Divisional Court upheld the substantial indemnity scale, finding the appellants' failure to make full and frank disclosure was not inadvertent.

However, the court found the motion judge erred in failing to properly analyze the bills of costs and apply the Boucher principles to ensure the quantum was fair and reasonable.

The court reduced the costs awarded to the Yemec respondents by 40% and to the Bungaro respondents by 20%.

The court also held that post-judgment interest on the costs award should run from the date of the costs order, not the date of the decision on the merits.

The plaintiffs sought leave to appeal a costs order granting the defendants substantial indemnity costs of $616,900 following the dissolution of an ex parte Mareva injunction and Anton Piller order.

The motion judge had awarded substantial indemnity costs based on a finding that the plaintiffs failed to make full and frank disclosure, regardless of whether the failure was willful.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the costs award due to the lack of a full analysis under Rule 57.01 and the questionable proposition that unintentional non-disclosure automatically warrants substantial indemnity costs.

The court also found the issues to be of general public importance given the magnitude of the award and the need for appellate guidance on the new costs regime.

The Court of Appeal issued an addendum to its reasons for judgment released on September 7, 2005.

Following correspondence from CGU Insurance Company of Canada, the court amended paragraph 5 of the reasons to clarify that CGU's concession at the hearing was directed specifically to the trial judge's obiter concerning the absence of an explicit forfeiture provision in the instructions to tenderers, and did not relate generally to the trial judge's interpretation of the bid bond.

The Toronto Transit Commission (TTC) appealed a trial decision dismissing its action for breach of contract against Gottardo Construction Ltd. and its bid bond insurer.

Gottardo submitted the lowest bid for a construction project but subsequently claimed a $557,000 error and refused to execute the contract.

The trial judge found that Contract A was not formed upon the opening of the tenders because additional documents were required, and alternatively, that equitable rescission applied.

The Court of Appeal allowed the appeal, holding that Contract A was formed when the tenders were opened, as the parties clearly intended to initiate contractual relations at that time.

The error was not apparent on the face of the tender, and the financial hardship to the bidder did not render enforcement unconscionable.

Judgment was entered for the TTC for $434,000.

The United States of America and the Federal Trade Commission appealed a decision setting aside an ex parte Mareva injunction and Anton Piller order against the respondents, who operated a telemarketing scheme selling Canadian lottery tickets to U.S. residents.

The appellants alleged the respondents engaged in fraudulent misrepresentation by demanding up-front fees.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusions that the appellants failed to establish a strong prima facie case of common law fraud or a real risk of asset dissipation.

The moving parties brought motions to quash an appeal from an order that dissolved two earlier orders.

The responding parties argued that the order was a final determination on the issue of standing, making it appealable as of right to the Court of Appeal.

The majority of the Court of Appeal held that the order was interlocutory, as it did not finally dispose of the issue of standing, and granted the motions to quash the appeal.

Borins J.A. dissented, finding the order final as it disposed of the plaintiffs' claim for interlocutory injunctive relief.

The appellant appealed a decision refusing to certify an action against an investment advisor for negligence, misrepresentation, fraud, and conspiracy as a class proceeding.

The Divisional Court dismissed the appeal, finding that the motions judge made no error in principle and correctly concluded that a class action was not the preferable procedure due to the individual issues of detrimental reliance.