Herman J. Wilton-Siegel

This supplementary endorsement clarifies the scope of a previous endorsement regarding a motion for leave to commence a derivative action.

The court clarified that its prior decision assumed, without deciding, the arguable case for the causes of action and did not consider arguments regarding whether the derivative action was in the corporation's interest or brought in good faith, thereby preserving the parties' ability to advance these positions on appeal.

The applicants sought full indemnity costs against Deborah Suzanne Roth following a guardianship application for their father, Norman Roth, which became moot upon his death.

The applicants alleged Deborah's conduct, including deception, undue influence, and fraud, frustrated the proceedings and delayed a determination of Roth's capacity.

The court found no legally meaningful connection between Deborah's alleged actions and any delay in the application's determination.

It also concluded that Deborah did not exercise undue influence over Roth, as Roth was found to have acted of his own free will in opposing the application and choosing his medical care.

Furthermore, while Deborah's non-disclosure of Roth's critical health condition to the court was serious, it ultimately had no consequences for the disposition of the motion or the application.

The applicants' motion for costs was dismissed.

The applicant landlord sought a declaration that harmonized sales tax (HST) must be added to settlement payments made by the respondent under a settlement agreement.

The agreement, negotiated during Companies' Creditors Arrangement Act (CCAA) proceedings, quantified the landlord's claim after the tenant disclaimed a lease.

The court found the settlement agreement ambiguous regarding the obligation to pay HST.

Applying principles of contractual interpretation, including objective factual matrix, commercial common practice in real estate, and the parties' post-execution conduct, the court determined that the settlement payments were exclusive of HST, and the respondent was required to pay HST in addition.

The appellants built an addition to their home without a building permit.

After years of litigation, the City obtained an order under the Building Code Act authorizing an inspection of the addition.

The appellants appealed, arguing that the inspection would violate the section 7 Charter rights of the elderly parents living in the home.

The Divisional Court dismissed the appeal, finding no evidence that the inspection would endanger the parents' lives and noting that the City was fulfilling its statutory duty to ensure public safety.

The appellant appealed a decision of the Health Services Appeal and Review Board upholding OHIP's denial of out-of-country payment for medical procedures she underwent in Georgia.

The appellant had declined treatment options in Ontario, including a referral to a leading specialist, and instead sought surgery in the United States.

The Divisional Court found the Board's decision reasonable, as the appellant failed to establish that it was necessary to travel outside of Canada to avoid a delay in treatment that would result in death or medically significant irreversible tissue damage.

The appeal was dismissed.

The tenants appealed an order of the Landlord and Tenant Board that terminated their tenancy and ordered them to vacate the premises due to rent arrears.

The tenants argued the Board made factual errors, demonstrated bias, and denied procedural fairness.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors of fact, no reasonable apprehension of bias, and no basis to interfere with the Board's calculation of arrears.

The applicant sought judicial review of a Social Benefits Tribunal decision that upheld the termination of her ODSP benefits and established an overpayment of over $22,000 due to undisclosed assets.

The applicant had a statutory right to appeal the Tribunal's decision to the Divisional Court but failed to do so, instead bringing an application for judicial review.

The Divisional Court dismissed the application, holding that judicial review is a discretionary remedy not available where an adequate alternative remedy exists, and the applicant demonstrated no exceptional circumstances to justify bypassing the statutory appeal process.

The applicant, U.S. Steel Canada Inc. (USSC), sought multiple orders under the Companies’ Creditors Arrangement Act (CCAA) to facilitate a proposed plan of arrangement and compromise.

The motions included approval of a supplementary claims process for previously excluded claims, authorization to convene creditor meetings and approve creditor classification for voting on the Plan, approval of amendments to the CCAA Acquisition and Plan Sponsor Agreement and a Support Agreement, and an extension of the stay of proceedings.

The Plan contemplated the acquisition of USSC's operating business by Bedrock Industries Canada LLC.

The motions were largely unopposed and supported by key stakeholders, including the Province of Ontario, United States Steel Corporation, and the Monitor.

The court granted all requested orders, finding the claims process fair, the Plan not doomed to failure, the creditor classification appropriate, and the agreements and stay extension necessary for the restructuring.

The defendants brought a motion to strike paragraphs in the plaintiffs' amended statement of claim alleging financial improprieties by the individual defendants.

The defendants argued that under Rea v. Wildeboer, these were derivative claims that could not be pursued in a personal oppression action.

The court dismissed the motion, finding that the claims were 'individualized claims' because the plaintiffs sought to adjust the historical earnings of the corporation to determine the fair value of their shares following their alleged wrongful termination.

The court held that in the context of a closely held corporation, there is a defensible basis for overlap between personal and derivative claims.

Following the settlement of cross-applications alleging shareholder oppression regarding a jointly owned villa property, the parties sought a determination of costs.

The court ordered each party to bear their own costs for the applicant's initial application, as neither achieved success and the matter was resolved via a buyout process.

For the respondents' cross-application, the court awarded partial indemnity costs to the applicant, finding the cross-application lacked merit as the applicant was a minority shareholder incapable of oppressive conduct under the Business Corporations Act.

The Garcia Defendants brought a motion for security for costs against the plaintiff, a Paraguayan pension fund, under Rule 56.01(1)(a).

The plaintiff, ordinarily resident outside Ontario, argued it had sufficient assets in Ontario, that the defendants delayed the motion, that the defendants' conduct increased costs, and that it had a meritorious case.

The court found the plaintiff's alleged Ontario assets were not unrestricted, and the defendants' explanation for delay was unreasonable.

Considering the plaintiff's substantial assets in Paraguay, the enforceability of a judgment there, the contractual relationship between parties, the defendants' counterclaim, and the defendants' vexatious conduct and unreasonable delay, the court dismissed the motion for security for costs.

The plaintiff brought a motion under Rule 49.09 seeking an order declaring that a previous motion was settled according to a draft order.

The court found that no binding settlement agreement had been reached.

Although the parties had exchanged drafts, they had also agreed that the document needed to be "cleaned up" for final review and client sign-off.

A material change was inadvertently made by the plaintiff's counsel in the "cleaned up" draft, which the defendants' client subsequently rejected.

The court emphasized that a binding agreement requires mutual intention on all essential terms and that, in this case, the final form of the draft order had not been settled, and client consent was consistently required.

The plaintiff's motion was dismissed.

Merna Frilegh, as executor and trustee for the Estate of Marshall Frilegh, applied for a passing of her accounts.

The deceased's grandchildren, Lindsay Iris Rudman and Brooke Taylor Rudman, objected to the accounts, arguing that certain assets (a condominium, a mortgage investment, a TFSA, and two RRIFs) should be included in the estate and challenging various liabilities.

The court dismissed most objections, finding that the contested assets passed to Merna outside the estate by right of survivorship or beneficiary designation.

The court also largely upheld the liabilities, with only a minor adjustment for the cost of a headstone.

The Receiver sought a declaration that a claimant did not hold an equitable mortgage against a property and had no claim against two related companies.

The claimant asserted an equitable mortgage, arguing his investment was intended for a pooled mortgage on the property.

The court found no objective evidence of a common intention between the claimant and the company's president to secure the investment with a mortgage on the property.

The claimant's request for an equitable mortgage or an equitable lien was denied, as there was no evidence that the funds reached the property-owning company.

The Receiver's motion was granted.

In the midst of an oppression remedy trial, the applicant brought a motion seeking production of the respondent companies' fiscal 2014 financial statements under various sections of the Business Corporations Act.

The court dismissed the motion, finding that the statutory provisions relied upon did not entitle the applicant to the financial statements and that the applicant had not established a strong prima facie case of oppression.

Furthermore, the court declined to grant leave for a mid-trial motion, noting that the requested documents would have no probative value without reopening the evidence to allow for supplementary expert reports.

The applicant, a former majority shareholder who now holds a negligible amount of shares, sought leave nunc pro tunc to commence a derivative action on behalf of the respondent pharmaceutical corporation against its directors.

The applicant alleged mismanagement and breach of fiduciary duties, seeking damages for trading losses he suffered when selling his shares.

The court dismissed the motion, finding that the applicant could not use a derivative action to recover personal trading losses.

Furthermore, the court held that the action was not in the best interests of the corporation, as it would divert limited financial resources and management time, and lacked support from any current shareholders.

The Receiver sought a discharge order, addressing the enforceability of an indemnity agreement and entitlement to an HST refund.

The Indemnifying Parties argued the receivership proceeding was an improper venue for contract breach claims and raised misrepresentation defenses regarding the indemnity agreement, as well as a potential claim for the Receiver's alleged mismanagement of life insurance policies.

The court found the receivership proceeding an appropriate venue, granted summary judgment on the enforceability of the indemnity agreement, and denied a stay of enforcement.

The court also deferred the HST refund issue for further clarification.

In a receivership proceeding, the Receiver sought to disclaim an agreement of purchase and sale (Grandview APS) between Horseshoe Valley Lands Ltd. (HVL) and Lotco Limited.

Lotco brought a cross-motion seeking to examine individuals to support its position that Romspen Investment Corporation (the mortgagee) had committed to HVL to grant a partial discharge of the mortgaged lots, and that Romspen's alleged default led to the receivership.

The court denied Lotco's request for examinations, finding that Romspen's alleged default to HVL was not relevant to the Receiver's disclaimer motion, as Romspen owed no direct contractual or other duty to Lotco, and the receivership order did not alter the substantive rights or equities between Lotco and Romspen.

Following the successful dismissal of a motion to approve a settlement agreement in CCAA proceedings, the successful lien claimants sought costs against the applicants, Tarion, and the applicants' shareholder.

The court declined to award costs against Tarion because the lien claimants failed to provide adequate prior notice of their intention to seek costs against it.

However, the court awarded costs against the applicants' estate, reasoning that the estate and its creditors benefited from the lien claimants' successful opposition, which preserved security funds.

Costs were fixed at $35,000 total on a partial indemnity basis, payable only to the extent the applicants actually receive the benefit of the security.

The defendants brought motions for security for costs against the plaintiffs, and the plaintiffs (as defendants by counterclaim) brought a cross-motion for security for costs against the plaintiffs by counterclaim.

The court granted the Langlois defendants' motion against the corporate plaintiffs, finding good reason to believe they had insufficient assets in Ontario.

The court dismissed the motion by a self-represented lawyer defendant, finding no evidence of opportunity cost to justify an award of security for costs in his favour.

The court also dismissed the plaintiffs' cross-motion, as the counterclaim was largely equivalent to a defence to the main action.