Harry Underwood

This is an appeal from a motion judge's decision to assume jurisdiction over foreign defendants in a complex international fraud and conspiracy case.

The respondents (original plaintiffs) alleged that a Toronto resident orchestrated a scheme to misappropriate billions of dollars from Saudi Arabian corporations and dissipate them globally, with the assistance of family members and various corporate entities.

The appellants (foreign defendants) challenged Ontario's jurisdiction, arguing a lack of real and substantial connection.

The motion judge found jurisdiction based on contracts made in Ontario (including a gift deed central to the alleged scheme), property located in Ontario, and the tort of conspiracy being committed in Ontario.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding factual errors or legal errors in applying the Van Breda test for jurisdiction, and dismissed the appeal.

The defendants and plaintiffs both brought motions for leave to appeal an order regarding the admissibility of evidence in a civil contempt proceeding.

The Divisional Court granted leave to appeal on four issues concerning the application of sections 7 and 13 of the Canadian Charter of Rights and Freedoms to evidence compelled pursuant to a Mareva order and undertakings.

The court directed that the defendant be the appellant and the plaintiffs be the cross-appellants.

The plaintiffs brought a motion for contempt against the defendants, alleging they breached a Mareva injunction by using frozen assets to pay for living and legal expenses.

In response, the defendants brought several procedural motions.

Dr. Saad moved to strike compelled evidence from the plaintiffs' contempt motion record, arguing it violated his Charter rights against self-incrimination.

The court dismissed this motion, finding that a contempt motion is not 'other proceedings' under s. 13 and that ss. 7 and 11(c) did not apply to previously compelled evidence.

Dr. Saad also moved under Rule 21 to exclude prior judicial rulings made in the civil action from the contempt motion.

The court granted this motion, holding that findings made on a civil standard are inadmissible in a quasi-criminal contempt proceeding.

The plaintiffs moved to compel the defendants to answer undertakings and produce documents.

The court ordered Dr. Saad to answer undertakings but ruled the answers could not be used in the contempt motion, and declined to order further document production that would conscript the defendants to assist in their own prosecution.

The court also limited the plaintiffs' disclosure obligations to the alleged breach, refusing broad discovery on the underlying fraud.

Finally, the court dismissed Mohammed's motion to stay the contempt proceedings pending his appeal on jurisdiction.

The proposed intervener, a shareholder of the respondent corporation and leader of an investor group, brought a motion for leave to intervene as an added party in an application concerning the extension of an outside date for a recapitalization transaction.

The court dismissed the motion, finding that the proposed intervener's financial interest in the outcome did not constitute a direct interest in the subject matter of the private commercial dispute.

Furthermore, the court held that the proposed intervener's intended evidence regarding foreign regulatory law would not make a useful contribution to the resolution of the proceeding.

The defendants (appellants) brought a motion for a stay of a lower court order that found Ontario had jurisdiction over a complex fraud action involving alleged misappropriation of billions of dollars by a former Saudi cabinet minister and related entities.

The motion judge had established jurisdiction on five grounds, including contracts made in Ontario, a gift deed executed in Ontario, assets in Ontario, acts of conspiracy in Ontario, and a real and substantial connection.

The Court of Appeal dismissed the stay motion, finding that the appellants failed to demonstrate irreparable harm, particularly because the plaintiffs provided an undertaking not to assert attornment if the defendants participated in the Mareva injunction proceedings.

The court clarified that court-ordered participation or participation under such an undertaking generally does not constitute voluntary submission to jurisdiction.

The balance of convenience also favoured the plaintiffs due to the risk of asset dissipation.

The moving party defendants brought a motion to dismiss or permanently stay the action against them, arguing the Ontario Superior Court lacked jurisdiction.

The plaintiffs alleged a massive international fraudulent scheme involving the misappropriation of $3.5 billion USD, with funds allegedly traced to the moving parties.

The court applied the Van Breda test and found a real and substantial connection to Ontario based on contracts formed in the province, property located in Ontario, and the necessity of hearing the claim as a whole in a single jurisdiction.

The motion was dismissed with costs awarded to the plaintiffs.

Staff of the Ontario Securities Commission alleged that a reporting issuer and seven of its former officers and directors contravened Ontario securities law by making materially misleading disclosures regarding copper production and financial performance, failing to maintain adequate internal controls, and providing inadequate risk disclosure.

The respondents admitted to the contraventions and to conduct contrary to the public interest.

The Commission approved a settlement agreement requiring the corporate respondent to make a $28.5 million voluntary payment and pay $1.5 million in costs, while the individual respondents agreed to pay administrative penalties ranging from $350,000 to $2.45 million, pay $50,000 each in costs, and be subject to director and officer bans.

The Commission found the settlement fell within a range of reasonable outcomes and was in the public interest.

Physicians sought to withdraw life support from an incapable patient while the substitute decision-maker refused consent.

The Court held, by majority, that withdrawal of life support in the circumstances constituted treatment under Ontario’s Health Care Consent Act, 1996 and therefore required consent under the statutory regime.

The majority concluded that disputes over refusal of consent must be addressed before the Consent and Capacity Board, which may substitute its decision if statutory best-interests criteria are not met.

Dissenting reasons would have resolved the dispute under the common law rather than the statutory board process.

The appeal was dismissed, with dissent.

The three accused, former senior executives of Nortel Networks Corporation, were charged with two counts of fraud over $5,000.

The Crown alleged that they deliberately misrepresented Nortel's financial results by manipulating accrued liability balances to meet earnings targets and trigger bonus payments.

The court conducted a detailed review of Nortel's accounting practices, the use of accrued liabilities, and the restatements of its financial results.

The court found that the Crown failed to prove beyond a reasonable doubt that the accused deliberately misrepresented the financial results or that the financial statements were materially misstated.

The accused were found not guilty on both counts.

The trustee in bankruptcy of a securities firm sought directions on how to calculate a customer's “net equity” under s. 253 of the Bankruptcy and Insolvency Act in the context of the firm’s insolvency.

The dispute concerned whether post‑bankruptcy mark‑to‑market adjustments for commodity futures contracts should be included in the calculation of the customer’s claim.

The customer argued that daily settlement obligations inherent in futures contracts required inclusion of post‑bankruptcy adjustments.

The court held that net equity must be calculated based on the liquidation value of securities positions as of the date of bankruptcy, without adjustments for post‑bankruptcy mark‑to‑market fluctuations.

The trustee’s interpretation was preferred as consistent with the statutory language and the objectives of Part XII of the Bankruptcy and Insolvency Act.

The appellant doctor appealed a trial judgment awarding damages to the respondent patient and his family for a stroke suffered following a cervical rhizotomy.

The trial judge found the appellant failed to obtain informed consent and that a reasonable person in the respondent's position would not have consented if properly informed.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions on liability and upholding the damages awards for general damages and future economic loss.

The respondent patient was in a persistent vegetative state on a mechanical ventilator.

The appellant treating physicians proposed to withdraw life support and provide palliative care, arguing that the life support was medically futile and did not require the consent of the patient's substitute decision-maker.

The substitute decision-maker refused consent.

The Court of Appeal held that the withdrawal of life support and the administration of end-of-life palliative care are integrally linked and constitute a 'treatment package' under the Health Care Consent Act.

Therefore, the physicians required the substitute decision-maker's consent, and in the absence of consent, were required to refer the matter to the Consent and Capacity Board.

The appellants appealed a trial judgment awarding the respondent $2.25 million in quantum meruit damages for services provided in developing a manufacturers' outlet mall.

The respondent had provided extensive development and leasing services under the mistaken belief that the parties were in a joint venture.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly applied a 'value received' approach rather than a 'value added' approach, properly relied on the respondent's expert valuation evidence, and reasonably assessed the fair market value of the unique services provided.

The court also upheld the finding that the appellant construction management company was jointly liable as a co-venturer.

The respondent brought a motion to remove the appellants' counsel of choice on appeal.

The counsel had briefly met with and advised the respondent on the same dispute 11 years prior, before litigation commenced.

Although the counsel had no recollection of the meeting and argued there was no risk of misusing confidential information, the Court of Appeal granted the motion.

The court held that a lawyer owes a broader duty of loyalty to a former client, beyond just confidentiality, which precludes acting against that former client in the same matter to preserve public confidence in the administration of justice.

The infant plaintiff suffered hypoxic-ischemic encephalopathy during childbirth, resulting in cerebral palsy.

The plaintiffs sued the hospital, physicians, and nurses for negligence during delivery.

The defendants refused to admit they owed a duty of care to the infant plaintiff, arguing that recent case law precluded such a duty.

The motion judge granted a declaration that a duty of care was owed.

The Court of Appeal dismissed the defendants' appeal, affirming the well-established principle that an infant, once born alive, may sue for damages sustained as a result of negligence during labour and delivery.

The appellant landowners brought a class action claiming compensation from the respondent pipeline companies for restrictions on the use of their lands imposed by government regulation under the National Energy Board Act.

The motion judge dismissed the action on summary judgment.

On appeal, the Court of Appeal upheld the dismissal, finding that s. 75 of the Act does not create a civil cause of action for compensation, but rather provides a complete code for negotiation and arbitration.

The Court also held that the compensation provisions in the easement agreements were limited to physical damages and did not cover economic losses resulting from regulatory land use restrictions.

The parties settled the appeal and requested the court to allow the appeal and set aside the trial judge's judgment.

The Court of Appeal, noting the public interest in settling litigation and the respondents' concession that there was a basis to allow the appeal, approved the order sought.

The appeal was allowed, the trial judgment set aside, and the action dismissed in accordance with the minutes of settlement.

The appellant hospital appealed a motion judge's order refusing to approve a 1998 infant settlement and granting the plaintiff's motion to amend the claim for damages.

The plaintiff sought the amendment based on new expert evidence indicating her life expectancy had increased by 30 to 35 years since the settlement was reached.

The Court of Appeal dismissed the appeal, finding the motion judge correctly focused on the best interests of the child under Rule 7.08 of the Rules of Civil Procedure and reasonably relied on the uncontradicted expert evidence regarding life expectancy.

The testator left a specific bequest of a Florida property to her sister.

Prior to her death, while she was incapable of managing property, her attorneys under a continuing power of attorney sold the property, which was held by a corporation she wholly owned.

The residuary beneficiaries argued the gift adeemed.

The Court of Appeal upheld the application judge's finding that the anti-ademption provision in s. 36(1) of the Substitute Decisions Act, 1992 applied, preserving the gift for the sister's estate.

The Court also affirmed the finding of incapacity and awarded costs against the unsuccessful appellants, departing from the traditional rule that estate litigation costs are paid from the estate.

The appellant's husband, who suffered from a bi-polar disorder, entered into a loan agreement with the respondent bank and later committed suicide.

The bank sued the husband's estate for the outstanding loan, and the appellant sued the bank personally for negligent misrepresentation and breach of contract, alleging the bank failed to follow its internal guidelines and ensure she had independent legal advice.

The Court of Appeal upheld the striking of the appellant's personal claims, finding the bank owed no duty to warn her about its internal policies.

In the bank's action, the Court held that the estate's defence of equitable set-off was not subject to the two-year limitation period under the Trustee Act, but struck the defence anyway because the underlying claims had already been dismissed.