Herman J. Wilton-Siegel

The plaintiff, having been successful at trial and awarded over $11 million for civil fraud, sought partial indemnity costs of approximately $1.88 million inclusive of taxes and disbursements.

The self-represented defendant argued the costs were unreasonable and should be apportioned among settling defendants.

The court considered the complexity of the action, the defendant's conduct in increasing costs, and the limited probative value of the receivership proceedings at trial.

The court fixed costs payable by the defendant at $1.05 million plus taxes for fees and $162,000 for disbursements.

The plaintiff, Robert Matuk, sought summary judgment against the defendants, James Vannelli and associated corporations, regarding claims stemming from the breakdown of their shareholder relationship in HappyGo Marketing Inc. The court granted partial summary judgment, ruling that Vannelli's effective appropriation of Matuk's shares constituted oppressive conduct under the Canada Business Corporations Act.

The court found Vannelli personally liable to compensate Matuk for the fair market value of his shares as of May 20, 2020.

However, the court dismissed Matuk's claims for breach of contract related to the corporation's dissolution without unanimous consent and alleged non-competition by a new entity.

A trial is required to determine the precise amount of compensation for the oppressive conduct and to adjudicate whether Vannelli breached the non-disclosure covenant regarding intellectual property, and if so, the appropriate remedy for that specific breach.

This appeal addressed whether relief from forfeiture is available to an insured under a professional liability insurance policy when the claim was not reported to the insurer during the policy period.

The Court of Appeal affirmed the application judge's finding that the policy was a "claims made and reported" policy, meaning that reporting the claim within the policy period was a condition precedent to coverage.

As coverage was not triggered due to the late reporting, relief from forfeiture was not available.

The court clarified that the principle from *Stuart v. Hutchins* remains undisturbed by *Kozel v. Personal Insurance Co.*, maintaining the distinction between non-compliance with a condition precedent and imperfect compliance.

During the COVID-19 pandemic, the plaintiff hospital network contracted with the corporate defendant to purchase 3 million NIOSH certified N95 masks, paying over $13 million upfront.

The corporate defendant, directed by the individual defendant Caridi, delivered KN95 masks instead, which were not NIOSH certified.

The plaintiff sued for fraudulent misrepresentation, breach of contract, oppression, and unjust enrichment.

The court found that Caridi acted recklessly in representing that the corporation could deliver NIOSH certified N95 masks without knowing if it was true.

While the court declined to pierce the corporate veil or grant an oppression remedy, it held Caridi personally liable in tort for deceit because his conduct exhibited a separate personal interest (a 50/50 profit split).

The corporate defendant was also found liable for breach of contract.

This appeal arose from a residential real estate development joint venture that ended in dispute over profit overpayments and retained proceeds.

The trial judge found oppression, ordered an accounting, and made findings on set-off, piercing the corporate veil, pre-judgment interest, and costs.

The Court of Appeal found errors in the trial judge's premature dismissal of set-off claims, the personal liability findings against individuals (Rekha and Meena Sharma) by improperly piercing the corporate veil of non-parties or for insufficient reasons, and the finding of an ad hoc fiduciary duty.

The Court also determined that the immediate payment orders for net sale proceeds, the pre-judgment interest rate, and the costs award were premature given the outstanding accounting.

The appeal was allowed, setting aside parts of the trial judgment and the entire interest and costs judgment, and directing the Associate Judge conducting the accounting to determine interest and costs after the accounting is completed.

This employment law appeal addressed three issues: mitigation of damages, the awarding of aggravated damages, and the joint and several liability of common employers.

The appellants argued the trial judge erred in finding the respondent unable to mitigate due to physical incapacity, awarding aggravated damages, and holding them jointly and severally liable.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the respondent was physically unable to mitigate, that aggravated damages were warranted due to the employer's bad faith conduct during termination, and that both entities were common employers, thus jointly and severally liable.

JSC Chukotka Mining and Geological Company (Chukotka) sought to recognize and enforce an arbitral award issued by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC) against Medivolve Inc. (Medivolve).

Medivolve opposed this application and brought a cross-application to set aside the arbitral award, arguing improper notice of the arbitration proceedings, inability to present its case, and unequal treatment by the arbitral tribunal.

The court found that Medivolve had received proper actual notice of the arbitration, despite courier delivery failures, and that its own dilatory actions contributed to its alleged inability to present its case.

The court also determined that the tribunal did not treat the parties unequally.

Consequently, the court granted Chukotka's application to recognize and enforce the arbitral award and denied Medivolve's application to set it aside, awarding costs to Chukotka.

The applicant sought to enforce two arbitration awards totaling over $4 million against the respondent real estate developer.

Pending the hearing of the enforcement application and the respondent's application to set aside the awards for reasonable apprehension of bias, the applicant moved for a preservation order under Rule 45.01 or a Mareva injunction to prevent the respondent from dissipating its remaining assets.

The court dismissed the motion, finding that Rule 45.01 was inapplicable because the applicant claimed no property interest in the assets, and a Mareva injunction was unwarranted because the applicant failed to establish a real risk that the respondent would dissipate its assets to avoid judgment.

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.

Arcamm Electrical Services Ltd. (Arcamm) brought a motion to quash an appeal by 4342 Queen St. Niagara Holdings Inc. (Queen) to the Court of Appeal for Ontario, arguing that the underlying summary judgment, granted in a Construction Act action, should have been appealed to the Divisional Court.

The Court of Appeal dismissed Arcamm's motion, holding that the appeal properly lay with the Court of Appeal because the summary judgment was granted under Rule 20 of the Rules of Civil Procedure based on a contractual claim, not under the Construction Act, and the court's jurisdiction is determined by the substance of the order made.

The appellant tenant appealed an order granting relief from forfeiture of a commercial lease, challenging findings regarding its use of the premises, the landlord's refusal to consent to a lease assignment, an order to remove an abandoned truck, and an allegation of judicial bias.

The Court of Appeal found no palpable and overriding error in the motion judge's findings that the tenant breached the lease's use provisions by constructing kitchen cabinets, that the landlord was entitled to refuse the assignment due to the breach, and that the truck removal order was valid.

The court also dismissed the bias allegation, interpreting the motion judge's comments as an attempt to minimize future acrimony.

The appeal on costs was denied as leave was not sought and the award was within the motion judge's discretion.

The appeal was dismissed in its entirety.

The appellant, a hookah lounge, appealed the dismissal of its application to quash a municipal smoking and vaping by-law.

The appellant argued that changes to Schedule A of the by-law, which lists set fines and short-form offence wording, after its enactment and municipal consent, invalidated the by-law.

The Court of Appeal affirmed the application judge's decision, holding that the changes to Schedule A were made by the Regional Senior Justice under the authority of the Provincial Offences Act to establish set fines, which is a judicial function, and did not alter the substance of the by-law's prohibitions.

The court found Schedule A was a placeholder and its changes did not invalidate the by-law.

The appellants appealed a motion judge's order granting leave to amend a statement of claim.

The respondents moved to quash the appeal, arguing the order was interlocutory and thus the Court of Appeal lacked jurisdiction.

The court found the order to be interlocutory, confirming that appeals of such orders lie with the Divisional Court with leave, not the Court of Appeal.

The motion to quash was granted.

The applicant company sought an interim and interlocutory injunction to enforce a standstill agreement against its founder and largest shareholder, pending arbitration.

The respondent had issued a press release calling for the replacement of the board of directors, which the applicant argued breached the negative covenants in the agreement.

The respondent brought a cross-motion to dismiss the application under the anti-SLAPP provisions of the Courts of Justice Act.

The court granted the injunction, finding a serious issue to be tried regarding the breach of negative covenants, irreparable harm to the company's goodwill, and a balance of convenience favoring the applicant.

The anti-SLAPP motion was dismissed because the application had substantial merit and the public interest in enforcing commercial contracts outweighed the protection of the expression.

The defendants, McCarney Group LLP et al., sought summary judgment to set aside transactions restructuring an accounting firm ("Oldco") under various insolvency and fraudulent conveyance statutes.

The plaintiffs, former partners and an affiliate of Oldco, alleged the restructuring was a transfer at undervalue designed to defeat their claims.

The court denied the defendants' motion for summary judgment, finding genuine issues for trial regarding Oldco's insolvency at the time of the restructuring and whether the assets (accounts receivable, work-in-process, and goodwill) were transferred at an undervalue.

The court emphasized that expert reports are not strictly required to establish an undervalue, and that oral testimony and cross-examination were necessary to resolve factual disputes regarding asset valuation and the existence of goodwill.

The court issued a costs endorsement following motions for a stay of proceedings, a certificate of pending litigation (CPL), and the appointment of an arbitrator.

The defendants had sought a stay, which was granted permanently for one defendant and temporarily for the other, while the plaintiff successfully obtained a CPL.

Finding divided success on the stay motion, the court ordered each party to bear its own costs for that motion.

However, as the plaintiff was successful on the CPL motion, the court awarded the plaintiff partial indemnity costs fixed at $35,000 all-inclusive.

The applicant sought judicial review of a government procurement Request for Bids (RFB) for identity card production and the subsequent dismissal of its bid dispute complaint.

The applicant argued that the RFB's domestic production requirement violated the non-discrimination provisions of the Canada-European Union Comprehensive Economic Trade Agreement (CETA).

The Divisional Court found that the administrative decision dismissing the complaint was unreasonable, as it failed to properly apply the test for necessity under the public safety exception of CETA.

The Court quashed both the decision and the RFB, finding that the domestic production requirement was not justified on the record.

The appellant, who suffered catastrophic injuries in a motor vehicle accident, appealed an interlocutory order of the Licence Appeal Tribunal requiring him to produce the personal and corporate tax records of his housekeeper.

The insurer sought the records to determine if the housekeeper suffered an economic loss.

The Divisional Court found the appeal was not premature because the order was fatally flawed.

The Adjudicator erred in law by finding without evidence that the housekeeper was the appellant's spouse, by requiring evidence of economic loss when the appellant claimed the services were provided in the ordinary course of the housekeeper's employment, and by ordering production of third-party records outside the appellant's control.

The appeal was granted and the production order was set aside.

The applicant sought judicial review of an Ontario Labour Relations Board (OLRB) decision that certified a union and dismissed the applicant's request for reconsideration.

The applicant had filed its response to the certification application within the two-day statutory limit via courier, but the OLRB rejected it for failing to comply with a COVID-19 'Notice to Community' requiring electronic filing, despite the OLRB's own forms and rules permitting courier delivery.

The Divisional Court found a breach of procedural fairness, quashed the OLRB's decision, and remitted the matter back to the Board to be decided on its merits.

The College of Psychologists of Ontario appealed a decision of the Health Professions Appeal and Review Board ordering the College to register the respondent as a psychological associate.

The respondent had completed an online master's degree, which the College's Registration Committee found did not meet the resident study requirement and was not substantially similar.

The Board found the Committee acted improperly by not following the Board's prior recommendation that the program was substantially similar.

The Divisional Court granted the appeal, holding that the Committee was not bound by the Board's recommendation and that the Board erred in finding an improper exercise of power.

The matter was remitted to a newly constituted panel of the Registration Committee.