Harvey S. Dorsey

The respondents to a court application brought a motion to stay the proceeding in favour of arbitration under the International Commercial Arbitration Act.

The underlying dispute arose from a sales agency agreement containing an arbitration clause and an earlier arbitration award requiring payment of distribution revenues.

The applicants sought declaratory relief, breach of fiduciary duty findings, and oppression remedies under the Ontario Business Corporations Act against related corporate entities and an individual.

The court held that the moving parties lacked standing to request a stay because they were not parties to the arbitration agreement and had attorned to the court’s jurisdiction by filing substantive materials addressing the merits before seeking a stay.

The requirements under Article 8(1) of the Model Law were therefore not satisfied.

The motion to stay was dismissed and the application was directed to proceed to hearing.

The defendant appealed a master's order granting leave to amend a statement of claim to include relief for recognition and enforcement of a Russian arbitration award under the International Commercial Arbitration Act.

The appellant argued the amendment introduced a new cause of action after the limitation period and relied on a prior decision setting aside default judgment.

The court held that the master's decision correctly found the amendments merely particularized an existing claim referencing the arbitration award and did not introduce a new cause of action.

The prior decision setting aside default judgment was limited to procedural deficiencies in the pleadings and did not extinguish the underlying claim.

The appeal was dismissed and the master's order upheld.

Following the dismissal of a motion challenging Ontario’s jurisdiction simpliciter and asserting forum non conveniens, the successful party sought costs on a partial indemnity basis of approximately $38,000.

The court considered the reasonableness of the claimed preparation time and whether costs should include fees for both senior and junior counsel.

While acknowledging the value of mentoring junior counsel, the court held that the circumstances did not justify indemnifying the successful party for two counsel on the motion.

After assessing the complexity and importance of the motion and the reasonable expectations of the unsuccessful party, the court reduced the requested amount.

Costs were awarded in the amount of $30,000 all inclusive.

The plaintiff brought motions under Rules 5.04 and 26.01 of the Rules of Civil Procedure seeking leave to amend statements of claim in two related actions.

In the 1997 action, the proposed amendments clarified allegations relating to enforcement of a foreign arbitration award.

The court held that the amendments did not introduce a new cause of action but merely provided further particulars and clarification of facts already pleaded, and therefore granted leave to amend.

In the 1998 action, the plaintiff sought to add allegations that a mortgage registered against the defendant’s property was fraudulent and void.

The court found these amendments introduced new causes of action long after the limitation period had expired and refused leave.

The defendants brought a motion to strike affidavits filed by counsel for the plaintiff after cross-examination on an earlier affidavit.

The court held that the subsequent affidavit constituted an improper attempt to repair or explain earlier evidence following cross-examination, effectively amounting to a belated re‑examination contrary to subrule 34.11(3) of the Rules of Civil Procedure.

The court emphasized that re‑examination must occur immediately following cross‑examination and declined to dispense with the rule under Rule 2.03 because no justification was provided.

The June affidavit was struck, while a second affidavit from another lawyer was disregarded as unnecessary and duplicative of an existing transcript.

The applicant mortgagee sought clarification of amendments to a Restraint and Management Order relating to property subject to ongoing criminal forfeiture proceedings.

The court reconsidered wording from an earlier decision and modified several provisions governing access to the property and the scope of available mortgage enforcement remedies.

The court confirmed that the mortgagee could pursue remedies including foreclosure, power of sale, judicial sale, and possession, while revising language concerning access facilitated by the property manager.

The court declined to require that all sale proceeds be paid into court at this stage, finding such an order premature given the unusual procedural context.

The endorsement further directed that all proceedings affecting the property be brought before the same judge to avoid fragmentation.

The appellant defendant appealed a Master's order dismissing his motion to stay the action on the basis of forum non conveniens, arguing that Zambia was the appropriate forum.

The Divisional Court first determined that the standard of review for a Master's final discretionary order is one of deference, not correctness.

Applying this standard, the court upheld the Master's findings that the appellant had attorned to Ontario's jurisdiction by filing a statement of defence and counterclaim, that Ontario had a real and substantial connection to the conspiracy claims, and that the appellant failed to clearly establish that Zambia was the more appropriate forum.

The appeal was dismissed.

In an assessment of expenses following an arbitration where the applicant was unsuccessful, the arbitrator determined the appropriate quantum of costs payable by the insurer.

The arbitrator ruled that the applicant's former counsel had standing to represent her at the assessment, as any expenses awarded were subject to a court order requiring payment into court.

The arbitrator held that while the Legal Aid Tariff sets maximum hourly rates, arbitrators may also consider Tariff A under the Rules of Civil Procedure when assessing the reasonableness of hours claimed.

The applicant was awarded $6,288.40 in fees and disbursements, including reduced allowances for expert medical reports.

The applicant was injured in a minor motor vehicle accident and received statutory accident benefits until December 1993.

She sought ongoing weekly income benefits, claiming she was substantially unable to perform her pre-accident job as a Client Service Officer due to fibromyalgia and depression.

The arbitrator dismissed the claim for ongoing benefits, finding no objective signs of disability, noting the minor nature of the accident, and relying on surveillance evidence and the applicant's undisputed ability to work part-time.

The arbitrator awarded the applicant her arbitration expenses, finding the claim was not frivolous or vexatious.