Herman J. Wilton-Siegel

The plaintiffs sought a Mareva injunction freezing assets of an individual defendant alleged to have received fraudulent transfers from a corporate defendant.

The court accepted that the plaintiffs had established a strong prima facie case that certain transfers constituted fraudulent conveyances and that judgment in related U.S. proceedings was likely.

However, the evidence failed to demonstrate the existence of assets in Ontario or a current risk of dissipation within the jurisdiction.

The court concluded that a Mareva injunction cannot be used as a tool to investigate whether assets exist.

Because the applicants could not satisfy the jurisdictional asset and dissipation requirements, the motion was dismissed.

A creditor commenced a bankruptcy application alleging fraud but sought a stay pending the respondent’s criminal trial and ultimately withdrew the application when evidence of fraud was unavailable.

The court was asked to determine the appropriate costs consequences of the withdrawal.

Although the respondent sought substantial indemnity costs exceeding $50,000, the court held that such an award was not justified.

The court considered the applicant’s impecuniosity, the respondent’s alleged involvement in a Ponzi scheme that led to the applicant’s losses, and the policy considerations of the Bankruptcy and Insolvency Act.

Balancing these factors, the court concluded that a modest sanction was appropriate because the applicant should have given earlier notice of withdrawal to avoid wasted trial preparation.

In an insolvency proceeding, a self-represented solicitor sought costs following partial success on an application determining his claim against the debtor’s estate.

The claimant requested full indemnity costs alleging improper conduct by the receiver and failure to engage in settlement discussions.

The court rejected those allegations and held that full indemnity costs were not justified.

However, because the claimant achieved a recovery significantly higher than the receiver’s proposed distribution, he was entitled to costs on a partial indemnity basis.

The court fixed fair and reasonable costs payable from the receivership estate.

In a supplemental endorsement to an appeal decision, the appellant sought to correct a calculation error regarding occupation rent.

The court agreed that the original calculation contained a conceptual error by failing to account for daily accrual, and varied the occupation rent award from $23,000 to $24,000.

The court also determined the costs of the appeal and the underlying small claims court trial, awarding partial indemnity costs to the successful parties on their respective issues based on divided success.

Following the dismissal of the appellant's appeal, the successful respondent sought costs of $1,036.13, including in-house counsel fees.

The self-represented appellant opposed the costs award on several grounds, including that the trial judge ordered each party to bear its own costs and that the appeal was brought as a matter of social responsibility.

The Divisional Court rejected the appellant's arguments, noting that costs on appeal follow the event.

The court awarded the respondent costs of $925 on a partial indemnity basis.

A dissident unitholder sought declarations allowing it to nominate trustees at a real estate investment trust’s annual meeting despite the trust’s advance notice policy.

The dispute turned on the interpretation of a proviso stating that adjournment or postponement of a meeting would not commence a new nomination period.

The court held that the nomination window is triggered by the actual date of the meeting, not the originally scheduled date, and that the proviso merely prevents previously valid nominations from becoming stale after postponement.

Interpreting the declaration of trust according to contractual principles and favouring unitholder electoral rights where ambiguity exists, the court concluded that the applicant’s nomination notice was timely.

The applicant was therefore entitled to nominate trustees at the meeting.

A corporation sought court approval of a statutory plan of arrangement under s. 182 of the Business Corporations Act involving the acquisition of its shares by another mining corporation through an exchange of securities.

The court applied the framework established in BCE Inc. v. 1976 Debentureholders, requiring satisfaction of statutory procedures, good faith, and that the arrangement be fair and reasonable.

The court found the statutory requirements met, the transaction negotiated at arm’s length and recommended by the board, and the arrangement supported by an overwhelming shareholder vote with no dissent.

The court also addressed the evidentiary role of fairness opinions in M&A transactions, holding that such opinions may support good faith and fairness even if not tendered as expert evidence.

Approval of the arrangement was granted.

An estate trustee sought the court’s advice and direction regarding the disposition of three lapsed residuary shares under a will where three of four named beneficiaries predeceased the testatrix.

The court considered whether the residuary gift constituted a class gift or whether a contrary intention in the will prevented intestacy.

The court held that individually named beneficiaries did not constitute a class gift and that the evidence did not establish a contrary intention to avoid intestacy.

Applying s. 47(6) of the Succession Law Reform Act, the lapsed shares passed on intestacy to the closest next of kin.

A Benjamin order was granted permitting distribution of the intestate portion of the estate equally to two identified first cousins.

The plaintiffs sought a Mareva injunction against the assets of the defendants, specifically a biodiesel plant owned by Great Lakes Biodiesel Inc., alleging that funds were fraudulently conveyed by Verdeo Inc. to the defendants to fund the plant's construction.

In the alternative, the plaintiffs sought interim relief under the oppression provisions of the Business Corporations Act or a certificate of pending litigation.

The court dismissed the motions, finding that the plaintiffs failed to establish a strong prima facie case of a fraudulent conveyance from the intermediary corporations to Great Lakes Biodiesel Inc., and that the balance of convenience did not favour a certificate of pending litigation.

The plaintiffs sought an interlocutory injunction to restrain the defendant from selling an independent medical examinations business to a competitor.

The plaintiffs argued the defendant breached a contractual duty of good faith by failing to negotiate a sale with them and by not offering a right to match the competitor's offer.

The court dismissed the motion, finding no serious issue to be tried as the defendant had fulfilled its limited obligation to offer a first right of negotiation and was not required to provide a right to match.

The court also found the balance of convenience favoured the defendants.

The defendant, United Parcel Service Canada Ltd., sought leave to appeal an order certifying a class proceeding under the Class Proceedings Act, 1992.

The proposed appeal challenged the certification of common issues relating to whether the defendant's brokerage fee practices constituted false or unconscionable representations, forced renegotiation of contracts, or breached requirements for future performance agreements under the Consumer Protection Act, 2002.

The Divisional Court found no conflicting decisions or good reason to doubt the correctness of the motion judge's certification order.

The motion for leave to appeal was dismissed.

The plaintiffs in two separate personal injury actions appealed interlocutory orders requiring them to undergo examinations by non-medical practitioners (a vocational assessor and a chiropractor).

The plaintiffs argued that section 105 of the Courts of Justice Act constitutes a complete code for such examinations, precluding orders for non-medical practitioners.

The Divisional Court held that section 105 does not completely occupy the field and that a Superior Court judge has inherent jurisdiction to order an examination by a non-medical practitioner where necessary to ensure trial fairness and justice.

Applying this test, the court dismissed the appeal in the Ziebenhaus action, finding the vocational assessment was necessary to meet the plaintiff's case.

However, the court allowed the appeal in the Jack action, finding the defendants failed to demonstrate that the functional abilities evaluation was necessary.

The moving parties sought to dismiss an application challenging a continuing power of attorney and seeking various related remedies on the basis of res judicata.

They argued that similar issues had already been raised in related proceedings and resolved through minutes of settlement.

The court held that the doctrine of res judicata requires a final judicial determination between the same parties or their privies, and that a private settlement agreement without a court order does not constitute such a determination.

Because the responding party was not a party to the settlement and no judicial decision resolved the issues, the prerequisites for cause of action estoppel or issue estoppel were not met.

The motion to dismiss the application was therefore denied.

A trustee in bankruptcy appealed a master's order refusing to enforce payment of surplus income required under a conditional discharge order.

The issue was whether the enforcement mechanism under s. 68(13) of the Bankruptcy and Insolvency Act could be used where surplus income had already been fixed as a condition of discharge.

The court held that a conditional discharge order requiring payment of surplus income can simultaneously constitute an order under s. 68(10)(c).

Accordingly, the trustee may use s. 68(13) to require an employer to remit surplus income to the trustee.

The master erred in law in concluding that the trustee's only remedy was under s. 176 or by seeking revocation of discharge.

The defendants brought a motion seeking to remove opposing counsel on the basis of an alleged conflict of interest arising from prior interactions with one of the defendants during the lawyer’s previous employment at another firm.

The defendants alleged that confidential information was disclosed during a business lunch and argued that the lawyer should therefore be disqualified.

Applying the test from MacDonald Estate v. Martin, the court held that the defendants failed to establish that material confidential information relevant to the action had been imparted.

The court further found that any information discussed was either not confidential, not shown to be relevant, or had already been disclosed in the litigation record.

The motion to remove counsel was dismissed and costs were awarded against the moving parties.

The applicant insurer sought judicial review of a Director's Delegate decision upholding an arbitrator's award for private school tuition and a special award for unreasonably withholding benefits under the Statutory Accident Benefits Schedule.

The Divisional Court found the Delegate's broad interpretation of 'incurred' and 'undertaken' under s. 15 of SABS was reasonable.

The court also upheld the finding that the insurer unreasonably denied benefits by relying on flawed expert reports and ignoring the insured's future needs.

The court fixed the quantum of the special award at $20,000.

The moving defendants sought to lift restrictions imposed by an earlier order preventing them from disposing of or encumbering property and related equipment pending a motion for a Mareva injunction.

The court characterized the prior order as a consent order reflecting an agreement between the parties, with undertakings that had expired but were subject to extension pending further order.

Applying the RJR‑MacDonald test for injunctive relief, the court found that the plaintiffs had established a serious issue to be tried regarding alleged fraudulent conveyances under the Fraudulent Conveyances Act.

The court also found a real possibility of irreparable harm if the property were encumbered to secure existing liabilities.

The balance of convenience favoured maintaining the restrictions, subject to a limited exception permitting encumbrances for bona fide new financing used in the ordinary course of business.

The appellant appealed a Small Claims Court decision dismissing his various claims against his former common law partner and her daughter for rent, parking, and other fees related to their occupation of his condominium.

The Divisional Court held that the Small Claims Court erred in finding that the Landlord and Tenant Board's prior eviction order extinguished the appellant's claim for occupation rent against the daughter for the period after the Board's order.

The appeal was allowed in part, awarding the appellant $23,000 in occupation rent against the daughter, while the dismissal of the remaining claims was upheld due to lack of jurisdiction and expired limitation periods.

The applicant ministry sought judicial review of an order of the Information and Privacy Commissioner requiring disclosure of the full names of Family Responsibility Office employees contained in a requester’s file.

The ministry argued the information was excluded from disclosure under s. 65(6)3 of the Freedom of Information and Protection of Privacy Act as relating to labour relations matters, or alternatively exempt under ss. 14(1)(e) and 20 due to safety concerns.

The Divisional Court held the IPC reasonably concluded the records were created in the course of the institution’s operational mandate rather than about labour relations, and therefore were not excluded from the Act.

The court also found no evidence that disclosure to the requester posed a safety risk to the employees and determined that compliance with the IPC order would not conflict with a prior Grievance Settlement Board order governing employee identification practices.

The applicant sought judicial review of the Registrar General's decision to cancel his birth registration under the Vital Statistics Act, following a criminal conviction where it was found he had assumed a false identity.

The applicant argued that delegating the decision to a Ministry lawyer created a reasonable apprehension of bias and that denying his request for a teleconference hearing breached procedural fairness.

The Divisional Court dismissed the application, finding no reasonable apprehension of bias given the distinct roles within the Ministry, and concluding that a written hearing satisfied the duty of fairness as the applicant failed to provide new evidence conclusively impeaching the prior judicial finding of his identity.