Ian Literovich

The plaintiffs moved without notice for a Norwich Order and Mareva Injunction against Benjamin Allan Ward, the former CEO of Wayland Group Corp., in connection with a proposed investors' class action under the Ontario Securities Act.

Ward had been noted in default and evaded service.

The court found evidence of Ward's history of securities fraud, improper conduct, evasion of service, and removal of assets to multiple jurisdictions.

The court granted the Mareva Injunction to prevent asset dissipation pending a default judgment motion scheduled for March 10, 2026, where damages exceeding $49 million are sought on behalf of the proposed class.

The decision addresses a motion by MGW Home Designs Inc. to restore a construction lien action to the trial list after it was administratively struck, and a cross-motion by Domenic Pasqualino to discharge the lien and dismiss an adjudicator’s order.

The court applies the Reid Factors to determine whether to restore the action, finds no abuse of process by MGW, and upholds the enforceability of the adjudicator’s order pending final determination.

The court also addresses the interplay between adjudication and lien proceedings, limitation period issues, and awards substantial indemnity costs to MGW.

The appellants appealed a summary judgment granted to TD Bank on a loan and guarantees.

The appellants argued the motion judge erred by allowing a non-party to testify in a mini-trial, making findings of fact relevant to a third-party claim, and granting summary judgment before the third-party claim was determined.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of enhanced powers under Rule 20.04(2.2) or in granting summary judgment, as the third-party claim was separate and the appellants had opportunities to join it.

The plaintiff sought specific performance of an Agreement of Purchase and Sale (APS) for a property, arguing the defendant vendor repudiated the agreement.

The defendant denied a valid agreement and specific performance, and counterclaimed for a forfeited deposit.

The plaintiff also brought a separate action for repayment of a mortgage provided to the defendant.

The court found a valid APS existed and that the defendant anticipatorily breached it.

However, specific performance was denied because the property was not unique, the transaction circumstances were not unique, damages were deemed an adequate remedy, and the parties' conduct did not favour equitable relief.

The plaintiff's claim for specific performance and the defendant's counterclaim were both dismissed.

The plaintiff's mortgage claim was granted for the principal amount of $600,000, but the 12% interest rate provision was found invalid under section 8 of the Interest Act.

The defendants brought a motion under s. 44 of the Construction Act for the return of monies deposited into court, relying on an adjudicator's interim determination that no monies were owed to the plaintiff.

The plaintiff opposed, arguing that an interim adjudication decision alone is insufficient to warrant the release of security.

The court dismissed the defendants' motion, holding that an adjudicator's determination, while admissible, is an interim decision and not a sufficient evidentiary basis to conclude that the lien claim no longer requires security under s. 44(5) of the Act.

The court emphasized that releasing security based solely on an interim adjudication would undermine the Act's purpose of providing security for lien claimants.

The appellant, Mikhail Khanine, appealed an order striking his pleadings in a family law dispute due to wilful non-compliance with multiple court orders, including a consent order for financial disclosure.

The Court of Appeal for Ontario dismissed the appeal, affirming that striking pleadings is an extraordinary remedy but justified in cases of egregious and exceptional wilful non-compliance with disclosure obligations, especially given the appellant's history of non-compliance and evasive tactics.

The court also addressed costs, awarding partial indemnity costs to the respondent.

This is an appeal from an order granting summary judgment for specific performance in relation to the purchase of a residential co-operative unit, where the appellant anticipatorily breached the Agreement of Purchase and Sale.

The Court of Appeal rejected the appellant's arguments that the motion judge erred in finding the property unique, justifying specific performance, and in finding the respondent ready, willing, and able to close the transaction.

The appeal was dismissed, and costs were awarded to the respondent.

Domenic Pasqualino brought a motion to vacate a writ of enforcement issued by MGW Homes Design Inc. under the Construction Act, which was based on an Adjudicator's determination.

MGW failed to provide notice of filing the determination with the court within the statutory 10-day period as required by s. 13.20(3) of the Act.

The court ruled that strict compliance with this notice requirement is mandatory for the determination to be enforceable as a court order.

Consequently, the writ was deemed void due to non-compliance, and Pasqualino's motion was granted.

The court also addressed the issue of costs, awarding them to Pasqualino.

The applicants sought the release of funds held in trust, arguing that a writ of execution obtained by the respondent against a bare trustee did not attach to the property.

The respondent argued that the bare trustee was also acting as an agent for the applicants, making them liable as principals for her unpaid commissions.

The court found that while an agency relationship did exist, the respondent was precluded from recovering against the principals because she had already obtained judgment against the agent, and the limitation period to sue the principals had expired.

The funds were ordered released to the applicants.

The plaintiff objected to the defendant's production of 17,000 documents in a common Schedule "A" for two intertwined actions, arguing for separate listings.

The court dismissed the objection, finding the issues in both proceedings virtually the same and the production not extraordinarily burdensome, especially with the availability of e-discovery tools.

The court deemed the defendant's approach efficient, affordable, and proportionate.

The plaintiff, CryptoStar Corp., sought an interim order for the preservation of specific funds (Upfront Payments) or assets purchased with them, and a declaration of interest in property to facilitate a Certificate of Pending Litigation (CPL) in Alberta.

The court dismissed the motion, finding that the Upfront Payments did not constitute a "specific fund" under Rule 45.02 as they were co-mingled and not contractually segregated.

The court also found no serious issue to be tried regarding the refund claim under the Agreement's terms and no basis for a CPL as the plaintiff failed to establish an interest in land.

The applicants sought an order declaring that a writ of execution obtained by the respondent against Stonebrook Inc. did not attach to real property registered in Stonebrook Inc.'s name.

The respondent had obtained the writ to enforce a judgment for unpaid commissions.

The court found that Stonebrook Inc. held the property merely as a bare trustee for the applicants (the beneficial owners) and had no independent discretion or beneficial interest in the property.

Consequently, under section 9(1) of the Execution Act, the writ could not attach to the property.

However, the court deferred releasing funds held in trust to allow the respondent an opportunity to argue that the bare trustee acted as an agent for the beneficial owners.

The plaintiff purchased an auto parts business from two of the defendants and sought an interlocutory injunction to enforce non-competition and non-solicitation clauses.

The plaintiff alleged the defendants established a competing business just outside the restricted radius and used a related company and former employees to solicit customers.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case that the restrictive covenants were breached, failed to prove irreparable harm, and that the balance of convenience favoured the defendants.

The moving party defendants brought a motion for particulars of an oral supply agreement alleged by the plaintiff in its Fresh as Amended Statement of Claim.

The plaintiff argued that further particulars were not required and that the issue was res judicata based on a prior Rule 21 motion decision.

The court found that the prior Rule 21 decision did not preclude a motion for particulars.

The court held that the plaintiff's written responses combined with oral clarifications provided during the hearing sufficiently answered the defendants' demands.

The plaintiff was ordered to provide the oral particulars in writing within 20 days.

The plaintiff sought approval of a settlement and class counsel fees in a securities class action alleging secondary market misrepresentations by the defendant regarding a cannabis cultivation project.

The court found the settlement, which exhausted available insurance and included a $1,000,000 contribution from the defendant, to be fair, reasonable, and in the best interests of the class.

The court also approved the plan of allocation, a $5,000 honorarium for the representative plaintiff, and class counsel fees of $1,650,000, representing 30% of the settlement amount.

The plaintiff sought leave under s. 138.8(1) of the Securities Act (OSA) to bring a claim for secondary market misrepresentation against the defendant.

The claim alleged that the defendant's November 29, 2018 Management Discussion and Analysis (MD&A) misrepresented material facts regarding a 220,000 square foot construction project.

The defendant issued a corrective disclosure on January 8, 2019, stating the project would be completed in 2019, but this was buried in a positive press release.

Subsequent press releases on February 6 and 7, 2019, revealed the collapse of the project's financing and partnership, leading to a significant market impact.

The court granted leave, finding a reasonable chance the action would succeed, emphasizing that materiality must be assessed contextually, considering the full business circumstances, not just immediate market reaction to a decontextualized disclosure.

This continued case conference endorsement addresses the plaintiff's request to adjourn a multi-day leave motion in a proposed class action until an in-person hearing is possible, due to concerns about conducting a complex hearing virtually during the COVID-19 pandemic.

The defendant was prepared to proceed virtually.

The court, acknowledging the evolving confidence in virtual hearings and the need for courts to operate, ordered the motion to proceed by videoconference on the previously scheduled dates of June 23 and 24, 2020, finding that remote procedures are not inherently unfair and practical issues can be addressed through cooperation.

In a proposed class action, the defendant sought to proceed with a two-day leave motion virtually via videoconference due to COVID-19 court suspensions.

The plaintiff opposed, citing logistical difficulties for a complex motion with a voluminous evidentiary record, including the inability for counsel teams to be together.

The court, while acknowledging the desire to avoid delay, declined to compel the plaintiff to proceed virtually, prioritizing due process concerns and the plaintiff's ability to present their case effectively.

The leave motion was rescheduled for an in-court hearing.

This endorsement outlines an agreed-upon procedural timetable for a motion in a class proceeding.

It sets deadlines for the exchange of motion records, completion of cross-examinations, delivery of facta, and schedules the hearing dates for September 2020.

The parties agreed to a timetable for the plaintiff's upcoming motion, with the hearing scheduled for May 5 and 6, 2020.