Howard B. Borlack

This decision concerns the approval of a sale process and a motion to appoint the sales officer as receiver in the context of a deadlocked insurance brokerage business.

The court approves the sale process and related ancillary relief, including the appointment of an interim broker and non-solicitation orders, but dismisses the motion to appoint the sales officer as receiver.

The ruling addresses issues of conflict of interest, compliance with prior orders, and the preservation of assets pending winding up.

This decision concerns the approval of a sale process and a motion to appoint the sales officer as receiver in the context of a deadlocked insurance brokerage business.

The court approves the sale process and related ancillary relief, including the appointment of an interim broker and non-solicitation orders, but dismisses the motion to appoint the sales officer as receiver.

The ruling addresses issues of conflict of interest, compliance with prior orders, and the preservation of assets pending winding up.

This endorsement addresses the costs of a motion for advice and directions brought by a Sales Officer in three oppression remedy applications.

The underlying motion resolved in favour of Doug Middleton, Jason Middleton, and JDM Group Ltd. (the "Middleton parties") against Mark Ber and his affiliates (the "Ber parties"), finding Mark's actions had undermined the Sales Officer's mandate.

The court considered whether Mark's conduct warranted substantial indemnity costs, ultimately concluding it did not meet the threshold for "reprehensible, scandalous or outrageous" behaviour.

The court ordered the Ber parties to pay partial indemnity costs to the Middleton parties and deferred any ruling on the disproportionate allocation of the Sales Officer's costs.

This motion, brought by the court-appointed Sales Officer in consolidated oppression remedy applications, sought directions regarding the inclusion of insurance policies in the sale plan of two closely held companies, Producer’s Planning Group Ltd. and The Benefits Group Inc. The dispute centered on 789 policies (PG Transferred Policies) that had been transferred to Mark Ber's company, The Producer’s Group Ltd. The court addressed two main issues: the ownership of 'PG Originating Policies' and the inclusion of 'PG Orphaned Policies' which clients transferred to Mark Ber's company after he ceased providing services through the original companies.

The court found that the PG Originating Policies were owned by the Planning Group and that Mark Ber improperly caused their transfer.

It also found that the PG Orphaned Policies should be included in the sale plan due to Mark Ber's unilateral actions undermining the court's prior order.

The court dismissed the respondents' request for a trial of issues, affirming its jurisdiction to decide the matter on the written record, consistent with Commercial List practice.

The defendant, Nuruddin Janmohamed, brought a motion to strike the plaintiff's claim for misrepresentation or, alternatively, for summary judgment, arguing lack of standing, no misrepresentation, no damages, and that the claim was statute-barred.

The plaintiff, Mahamud Husein, alleged misrepresentation regarding an insurance policy's premium increases.

The court dismissed both motions, finding the claim disclosed a cause of action for negligent misrepresentation and that genuine issues requiring a trial existed, particularly concerning the alleged misrepresentations, reliance, and damages.

The limitation period argument was also dismissed.

The plaintiffs initiated an action against the defendants for breach of contract, negligence, breach of fiduciary duty, and negligent or fraudulent misrepresentation concerning investment rental properties and their management.

The defendants brought a motion for summary judgment, arguing the claim was time-barred under the Limitations Act, 2002.

The court found the action amenable to summary judgment and determined that the plaintiffs had sufficient knowledge of their loss and its cause by December 12, 2017, at the latest, when they terminated their property management agreement.

As the Statement of Claim was issued on March 16, 2020, beyond the two-year limitation period, the court granted summary judgment to the defendants and dismissed the action as time-barred.

This is a costs endorsement for three related applications concerning shareholder rights and oppression remedies in private companies (Producers Planning Group Ltd., The Benefits Group Inc., and Thornbridge Capital Inc.).

The main applications resulted in an order for the sale of businesses and assets of two companies, while claims for oppression remedies were dismissed for all parties.

The court found that all parties had substantial success as respondents in opposing the oppression claims made against them.

Due to the overlapping issues and the divided success, the court ordered no costs for any of the three applications, as the costs of successful respondents would largely offset the costs for which they would be liable as applicants in other applications.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

The plaintiffs, The Calbot Group Ltd. and 2649106 Ontario Inc. cob Synergy Capital, brought two motions: a Preservation Motion seeking to secure $5 million from land sale proceeds and a Jurisdiction Motion against certain foreign defendants.

The court first addressed the Jurisdiction Motion, finding that the plaintiffs failed to establish a real and substantial connection between the foreign defendants (NSR Canada Development Limited, New Silk Road Culturaltainment Ltd., and Sha Huang aka Sam Huang) and Ontario, as the alleged contract (MOU or verbal agreement) was not genuine and the corporate veil could not be pierced.

Consequently, the action against these foreign defendants and Mr. Huang was stayed.

The Preservation Motion, seeking relief under Rule 45.02, a Certificate of Pending Litigation (CPL), or Mareva injunction, was also dismissed.

The court found that the plaintiffs' claim was for damages, not a specific fund, and they failed to demonstrate a serious prospect of success or meet the stringent requirements for such remedies.

Costs were awarded to the successful defendants.

The Court of Appeal for Ontario issued a costs endorsement following an appeal brought by the Debtor, Wayne Biggar.

The Court found that Mr. Biggar's appeal was brought to the wrong court and constituted an obvious delay tactic.

As a result, the Creditors, Jack Pinder, Victor Dusik, and Innotech Safety Solutions Inc., were awarded substantial indemnity costs fixed at $11,500, inclusive of disbursements and applicable taxes, payable by Mr. Biggar within five days.

The respondent brought a motion to add WSP Canada Inc. as a defendant in an ongoing negligence action arising from the rehabilitation of a bridge.

The motion judge granted the motion, finding that the respondent's claim against WSP was not statute-barred under the Limitations Act, 2002 because the claim was not reasonably discoverable within the two-year limitation period.

WSP appealed to the Court of Appeal.

The Court of Appeal quashed the appeal for lack of jurisdiction, holding that the motion judge's order was interlocutory rather than final.

The motion judge's determination regarding the limitation period was made solely for purposes of deciding the motion to add a party and did not finally determine the limitations issue, which could be relitigated at trial.

The appellants appealed a motion judge's decision interpreting a landlord-tenant agreement as a complete release of the tenant from liability for fire damage.

The appellants argued the release applied only to the tenant personally but preserved a subrogated claim by the landlord's insurer against the tenant's insurer.

The Court of Appeal upheld the motion judge's interpretation, finding that releasing the tenant precluded any subrogated claim against the tenant's insurer.

The appeal was dismissed with costs awarded to the respondent.

The appellant, Western Troy Capital Resources Inc., retained the respondent, Genivar Inc., an engineering consulting firm, to conduct a feasibility study for a mineral property at MacLeod Lake in Northern Quebec.

The trial judge found that Genivar breached its duty of care and made negligent misrepresentations, awarding damages of $1.25 million.

On appeal, Western Troy sought to increase the award to approximately $2.97 million or $2.15 million, arguing the trial judge failed to adequately explain his damages assessment.

The Court of Appeal upheld the trial judge's award, finding it was firmly grounded in evidence and that the trial judge properly considered speculative elements including the timing of when the resources estimate should have been completed, which expenses would have been incurred regardless, and the likely reaction of Western Troy's management to a timely report.

The appellants (Mastron entities) appealed a motion judge's order that refused to dismiss third and fourth party claims and granted leave nunc pro tunc to Genivar to issue its fourth party claim.

The motion judge held that an order by Hackland J. dated December 10, 2013 was intended to continue the proceedings under the ordinary track rather than under the Construction Lien Act.

The appellants argued the motion judge erred in granting leave nunc pro tunc because the two-year limitation period for commencement of the fourth party claim had expired.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly interpreted Hackland J.'s order as continuing the action on the ordinary track, since the third party claim included claims for breach of contract and negligence in addition to contribution and indemnity, which could only proceed under the ordinary track.

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.