Herman J. Wilton-Siegel

The appellants appealed an order striking out their statement of defence and counterclaim after they repeatedly failed to comply with a settlement agreement and a subsequent court order enforcing it.

The Divisional Court dismissed the appeal, finding that the motions judge made no error in principle and properly exercised his discretion under Rule 60.12.

The court held that the process established by the motions judge to determine the remaining damages for breach of settlement within the existing action was fair, efficient, and proportionate.

The mother brought a motion for a stay of an order varying an interim parenting schedule pending her motion for leave to appeal.

The motion judge had varied the schedule to increase the father's parenting time based on observations from a Section 30 assessment report.

The Divisional Court applied the three-part test for a stay and found that the mother failed to demonstrate a serious issue to be tried, as the motion judge's discretionary decision was well-founded and did not conflict with established case law.

The court also found no irreparable harm to the child and that the balance of convenience favoured the new schedule.

The motion for a stay was dismissed.

The tenant brought a motion seeking a stay of an eviction order after his appeal of a Landlord and Tenant Board decision was quashed.

The Board had previously found the tenant owed approximately $25,000 in rent arrears.

The court dismissed the motion, finding there was no active appeal before the court and no basis to grant an extension of time to appeal the quashing order, and therefore no basis to stay the eviction.

The applicant brought a motion to expedite the hearing of his application, which sought a determination of the Ombudsman's jurisdiction to review the hiring process for the next OPP Commissioner.

The applicant argued urgency based on public concern and the potential compromise of the OPP's integrity if the new Commissioner assumed his role before the review.

The court dismissed the motion, finding no urgency that justified displacing other scheduled matters, noting that the Ombudsman's authority is limited to reporting and cannot prevent the appointment.

Various defendants brought motions to strike the plaintiffs' statement of claim, which alleged civil conspiracy, defamation, intentional interference with economic relations, and unjust enrichment.

The court struck the claims for defamation, intentional interference with economic relations, and unjust enrichment against all applicants.

The civil conspiracy claim against one individual defendant (Moez Kassam) was struck, but the conspiracy claims against the remaining Anson Corporate Defendants, Adam Spears, Sunny Puri, ClaritySpring Inc., Nathan Anderson, Richard Molyneux, and Darryl Levitt were allowed to proceed.

The court also clarified that 'whistleblower' complaints to the Ontario Securities Commission are subject to absolute privilege and do not constitute the commencement of legal proceedings for the tort of abuse of process.

CVC Ardellini Investments Inc. sought a declaration that the debt of the bankrupt Templar Hotel Corporation was at least $17 million, following a refinancing arrangement.

Del Terrelonge, a guarantor, argued the debt was limited to $8.5 million, contending the refinancing constituted a new loan.

The court found that the refinancing was a forbearance agreement, not a permanent reduction of the original debt.

Upon Templar's default, the full original debt amount became enforceable, and the provisions of the Interest Act and the Courts of Justice Act regarding penalties and forfeitures did not apply.

The motion was granted in favour of CVC Ardellini Investments Inc.

The applicant brought a motion under Rule 21.01(1)(b) to strike portions of the statement of claim or dismiss the action against them, arguing it failed to disclose a reasonable cause of action.

The plaintiffs had invested in a syndicated mortgage and lost their investment, alleging breach of contract, negligence, negligent misrepresentation, and civil conspiracy against various defendants.

The court found the pleadings deficient for all claims against the moving party due to a lack of specific facts establishing proximity, duty of care, or particulars as required by Rule 25.06(8).

The claims against the moving party were struck, but leave was granted to the plaintiffs to amend their statement of claim within 30 days.

Costs were awarded to the moving party on a partial indemnity basis.

The defendants were successful at trial and sought costs of $346,561.72 on a partial indemnity basis.

The plaintiff objected to the amounts claimed for examinations for discovery, senior counsel's hourly rate, and the cost of the defendants' expert report.

The court rejected the plaintiff's arguments regarding discovery and counsel rates, finding the $450 hourly rate for senior counsel reasonable.

However, the court reduced the disbursement for the expert report by $22,500 to reflect work attributable to an excluded portion of the report.

The court fixed the defendants' costs at $315,000 all-inclusive.

The applicant sought a declaration of invalidity for the testator's 2007 will on grounds of lack of testamentary capacity and undue influence.

The court found suspicious circumstances regarding the 2007 will, shifting the burden of proof to the respondents.

It was determined that the testator lacked testamentary capacity when executing the 2007 will, leading to its invalidation.

The 2006 will was consequently restored as the true last will and testament.

The claim of undue influence was not established.

The respondents were successful on an appeal regarding a real estate transaction and sought costs on a full indemnity basis.

The appellant argued for a significantly lower amount, citing an offer to settle and access to justice concerns.

The court rejected the appellant's arguments, finding the appeal had no merit and the appellant's actions in pursuing the litigation were abusive.

The court awarded the respondents their full requested costs of $22,441.23.

The court issued a costs endorsement following extensive litigation concerning the guardianship of an individual with Down Syndrome and the administration of their property and personal care.

The dispute involved multiple family members acting as co-guardians, with issues arising from the treatment of government program funds, tax returns, and the passing of accounts.

While the substantive matters were resolved through a settlement, the court was tasked with determining the allocation of legal costs.

The court emphasized the paramountcy of the ward's best interests and the responsibility of co-guardians to resolve disagreements efficiently.

It found that the ward's estate should not bear the costs of the guardians' inability to cooperate.

Partial costs were awarded to the initial applicant against one respondent due to the latter's unresponsiveness to a legitimate legal concern.

Another respondent was ordered to pay partial costs to a different respondent for bringing a motion to replace a co-guardian without sufficient evidentiary support.

The Bank of Montreal (BMO) opposed the confirmation of a referee's report regarding a costs award in a CCAA proceeding.

The referee had fixed BMO's costs at $50,000 on a partial indemnity basis, finding that BMO's participation in the lien claimant litigation contributed little and was largely unnecessary, limiting costs to "salvage costs." BMO argued its extensive costs were caused by the Private Mortgagees' actions in asserting priority over lien claimants, which forced BMO's full participation.

The court, applying a deferential standard of review for referee reports, found no patent misapprehension of evidence or error in principle by the referee.

The court upheld the referee's decision, concluding that BMO should have sought costs from lien claimants or put Private Mortgagees on notice of its claim.

BMO's alternative argument to tack costs onto its security via debenture provisions was also rejected as res judicata, as the referee had already determined reasonable costs.

The applicant, a minority shareholder and employee, alleged constructive dismissal due to reduced compensation (loss of personal expense reimbursement via corporate cards) and corporate oppression under s. 248 of the Business Corporations Act, seeking payment for lost benefits and an order for Metcom to purchase his shares.

The court dismissed all claims, finding that the card privileges were an informal shareholder arrangement personal to the previous majority shareholder and the applicant, not an employee compensation entitlement, and were subject to the corporation's financial capacity.

Furthermore, the applicant's expectation for share repurchase lacked a legal basis, as there was no shareholders' agreement or other binding arrangement.

The Canadian Hearing Society (CHS) brought a motion seeking to dismiss the application of the corporate applicant, The Campaign for the Inclusion of People who are Deaf and Hard of Hearing (the "Campaign"), for lack of standing, and to stay the application of the individual applicants, Ian Silver and Keith Golem, pending arbitration.

The court found that the Campaign was not a "complainant" under the Canada Not-for-Profit Corporations Act as it lacked a private right and reasonable expectation, and its representative authority was questionable.

The court also determined that the individual applicants' oppression claims were subject to arbitration clauses in the CHS by-laws.

Consequently, the Campaign's application was dismissed, and the Individual Applicants' application was stayed pending arbitration.

Costs were awarded to the CHS.

Alfrida Gina Trezzi sought a declaration that she was a 50% owner of Across Canada Construction Ltd. (ACC) shares.

Albert Trezzi opposed, arguing her claim was statute-barred and that she was not a shareholder.

The court dismissed the limitation period argument.

However, the court found no evidence that ACC ever issued shares to Gina, despite unexecuted organizational documents suggesting a 50/50 split with Peter Trezzi.

The court rejected the application of statutory presumptions under the Business Corporations Act and Securities Transfer Act, concluding Gina failed to prove her ownership claim.

Albert's cross-application for a declaration that Peter's estate owned all shares was also declined as the hearing only addressed Gina's alleged ownership.

Alectra Utilities Corporation sought to set aside an arbitration award of $12.3 million in favour of Solar Power Network Inc. (SPN), while SPN sought to enforce it.

The arbitration arose from a dispute over the termination of a Fee-In Tariff Programme agreement (PAMA) by Alectra's predecessor, PowerStream, which the arbitrator found to be in bad faith.

The court upheld the arbitrator's jurisdiction to consider bad faith in the exercise of a contractual right, finding that the PAMA's "sole discretion" and "not subject to dispute" clauses did not insulate bad faith termination.

However, the court found the arbitrator exceeded his jurisdiction by awarding damages for loss of profits, as the PAMA explicitly excluded such damages for breaches of covenant, and SPN's claim was deemed a breach of an implied covenant of good faith.

Alectra's application to set aside the award regarding damages for loss of profits was granted, and SPN's application to enforce the award was denied.

The appellant appealed a Small Claims Court decision dismissing its action against the City of Toronto for damages arising from delayed and confusing billing for solid waste management services.

The appellant argued the City owed a common law duty of care to provide accurate and timely statements of account, and that had it known of the fees, it would have hired a private contractor.

The Divisional Court dismissed the appeal, finding no sufficient proximity between the City and the appellant to establish a common law duty of care beyond the City's statutory duty to inform the public.

The applicant sought judgment for $7.45 million pursuant to a settlement agreement.

The respondent claimed a right of set-off for insurance deductibles under the construction contract's owner-controlled insurance policies.

The applicant argued that a release executed as part of the settlement extinguished the respondent's right to claim the deductibles.

The court interpreted the release in its factual matrix and concluded it was limited to the five specific disputes settled, and did not terminate the applicant's ongoing obligation to pay deductibles under the continuing contract.

The application was dismissed.

The Debtor appealed a Master's order lifting a stay of proceedings under the Bankruptcy and Insolvency Act (BIA), which had arisen upon the Debtor's filing of a proposal.

The Master found that the Respondent creditor would be materially prejudiced by the continued stay and that it was equitable to lift it, allowing the Respondent's $1 million claim to be quantified in a civil action rather than through the summary procedure under s. 135 of the BIA.

The appeal court upheld the Master's decision, finding no error in concluding that the Respondent had established some chance of success in its civil action and that the civil action was the appropriate forum for determining the complex, credibility-dependent claim against both the Debtor and a co-defendant, thereby avoiding inconsistent findings and prejudice.

The applicant, Canadian Home Publishers Inc. (general partner), and the respondents, estate trustees of David Colville-Reeves (sole limited partner), sought conflicting determinations regarding the entitlement to profits and residual assets of Canadian Home Publishers (CHP), a limited partnership.

The court determined that CHP was dissolved upon David's death because his executors did not become substituted limited partners without consent or prior authorization.

Consequently, CHP must be wound up, and its residual assets are to be distributed equally between the general partner (Lynda Reeves, owner of CHP Inc.) and David's Estate, as per the Partnerships Act.

The court dismissed the respondents' promissory estoppel argument, finding no formal representation or detrimental reliance, and doubted its applicability against mandatory statutory provisions.