Igor Ellyn

The appellant, Ellyn Law, appealed a motion judge's order that its retainer agreement with the respondents, Alexander L. Bimman and 2182474 Ontario Inc., was valid and capped fees at 30% of recovery, disallowing certain additional fees and disbursements.

The Court of Appeal affirmed the validity and enforceability of the retainer agreement, clarifying that while lawyers can challenge their own agreements under s. 24 of the Solicitors Act, there is a presumption of fairness and reasonableness that requires exceptional circumstances to rebut.

However, the Court found the motion judge erred in disallowing a disbursement for an external law firm (Chitiz Pathak LLP) as it was reasonably necessary to resolve the underlying action.

The applicant brought a consent motion to transfer a commercial lease application from Brampton to Toronto to be heard with a companion application.

The sole reason for the requested transfer was to secure an earlier hearing date, as the parties were dissatisfied with the dates available in Brampton.

The court dismissed the motion, finding that the desire for an earlier hearing date does not justify transferring a proceeding to a jurisdiction with no connection to the matter, as doing so would inappropriately use other regions to arbitrage court schedules.

The parties agreed not to seek any costs of the appeal motions or the appeals.

The Court of Appeal issued an endorsement reflecting this agreement, with no costs awarded.

This is an appeal and cross-appeal from a Superior Court judgment concerning an oppression remedy claim.

The appellants (defendants) challenged the trial judge's valuation of shares, award of equitable damages, refusal to admit fresh evidence, and refusal to reconsider a Rule 59 motion.

The cross-appellants (plaintiffs) challenged the trial judge's findings on fiduciary duty, the 2012 share purchase agreement, quantum of equitable damages (interest), punitive damages, and transaction structure for share repurchase.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's decisions on all substantive issues, including the valuation, equitable damages, and the refusal to admit fresh evidence or reconsider motions.

Both parties' requests for leave to appeal costs were also refused.

Following a trial where the plaintiff successfully established oppression and was awarded approximately $4.2 million for her shares and termination damages, the court determined the costs of the action.

The plaintiff sought partial indemnity costs of over $1.4 million, while the defendants argued for significant reductions based on the plaintiff's lack of success on several discrete issues.

The court rejected a strict distributive costs approach but reduced the plaintiff's fees by 20% to reflect unsuccessful claims, and made further deductions for post-trial motions and excessive counsel.

The plaintiff was awarded $608,960 in fees and $194,933.33 in disbursements.

This addendum to a judgment determined the transaction structure for a court-ordered share purchase as an oppression remedy.

The individual plaintiff, Ms. Murray, a 9.1% shareholder in Pier 21, had been found to be oppressed, and the defendants were ordered to purchase her shares for $39.3 million.

Ms. Murray held her shares through a holding company (2327342 Ontario Inc.) and sought to minimize her tax liability by having the individual defendant, Mr. Star, or his holding company, purchase the shares of her holding company (Option One).

Mr. Star argued for Pier 21 to repurchase its shares from Ms. Murray's holding company for cancellation (Option Two).

The court found that Option One was not in accord with Ms. Murray's reasonable expectations, considering her prior share sales in 2012 where Pier 21 repurchased shares from her holding company for cancellation.

The court also noted that Option One would impose potential unknown liabilities and significant advisory costs on the defendants, risks not present in Option Two.

The court ordered the share purchase to proceed under Option Two, requiring Pier 21 to repurchase its shares from Ms. Murray's holding company for cancellation.

Following a trial where the defendants were ordered to repurchase the plaintiff's shares, the plaintiffs sought directions on the transaction structure to ensure tax efficiency.

The defendants argued the court lacked jurisdiction as the issue was not pleaded and the court was functus officio.

The court held it had jurisdiction under s. 241(3) of the Canada Business Corporations Act, noting the issue was raised during trial and fell within the broad remedial powers for oppression.

The court established a process for filing further evidence to resolve the transaction structure.

Following a trial under the oppression remedy, both parties brought motions under Rule 59.06(1) to correct alleged errors in the court's reasons.

The court dismissed the defendants' request to remove references to a personal relationship and their claim of an arithmetic error in the fair value calculation.

The court granted the plaintiffs' motions to correct arithmetic errors, increasing the fair value of the corporation by $0.2 million and the equitable compensation awarded to $605,579.

The plaintiffs' request for compound interest was dismissed as it was not pleaded and lacked an evidentiary foundation.

DEI Films Ltd. sued Rakesh Tiwari and 3885275 Canada Inc. for defamation.

The defendants successfully brought anti-SLAPP motions, dismissing DEI Films' action.

This decision addresses the defendants' requests for full indemnity costs.

The court granted full indemnity costs to both defendants against DEI Films Ltd., finding no merit in DEI Films' arguments for reduced or no costs.

The court declined to hold non-parties Brij Mohan Trikah and Sital Panesar jointly and severally liable for costs, as the defamation claim was primarily by the corporate entity and had little to do with their personal reputations.

DEI Films Ltd. sued Rakesh Tiwari and 3885275 Canada Inc. for defamation, claiming $1.5 million, arising from a radio broadcast discussing a proposed boycott of a concert.

The defendants brought anti-SLAPP motions under s.137.1 of the Courts of Justice Act to dismiss the action.

The court granted the defendants' motions, finding that the broadcast related to a matter of public interest.

DEI Films failed to demonstrate that its action had substantial merit, that the defendants had no valid defense (such as no defamatory statement, justification, or fair comment), or that the harm suffered was sufficiently serious to outweigh the public interest in protecting the expression.

The action was dismissed.

Appeal from a trial judgment concerning a dispute between a former unmarried couple over property rights in development properties.

The trial judge found that a property development agreement (PDA) existed between the parties despite a cohabitation agreement containing broad waivers of property rights.

The trial judge set aside the cohabitation agreement as it applied to the development properties under section 56(4)(b) of the Family Law Act, finding that neither party understood the consequences of the agreement regarding their property development venture.

The trial judge awarded the respondent $3,325,000 plus interest and costs.

The appellant appealed on three grounds: the trial judge erred in setting aside the agreement only as to development properties; in not setting aside the entire agreement including the spousal support waiver; and in calculating the amount owing under the PDA.

This is a costs endorsement following an appeal and cross-appeal to the Court of Appeal for Ontario.

The respondents were successful on both the appeal and cross-appeal.

The court awarded costs to the respondents in the amount of $40,000, inclusive of all disbursements and HST.

The judgment was also varied on consent of the parties to correct two monetary amounts in paragraphs 5 and 7.

Minority shareholders appealed a trial judgment finding oppressive conduct by majority shareholders in a real estate development company.

The trial judge found that the majority had issued too many shares in response to cash calls when the minority shareholder refused to participate, thereby diluting the minority's ownership interest.

The appellate court upheld the trial judge's interpretation of the shareholders' agreement and the calculation of share dilution, with minor adjustments to the valuation calculations.

The court also set aside punitive damages against one defendant due to inadequate notice in the pleadings, and dismissed the appellants' costs appeal.

This decision concerns the costs arising from a dispute between a daughter and son-in-law (Palmieris) and the father (Alaimo) over a house built on Alaimo's property.

The parties initially agreed to arbitration, but Alaimo subsequently challenged the arbitration agreement and award, necessitating two applications before the court.

The Palmieris were successful in enforcing the arbitration award and defending Alaimo's challenges.

The court considered Alaimo's conduct, which unnecessarily lengthened the proceedings and involved advancing meritless positions, including an opportunistic allegation of bias against the arbitrator and unfounded claims regarding the arbitration agreement's payment terms.

Applying Rule 57.01(e) and (f)(i) and principles from Boucher v. Public Accountants, the court awarded the Palmieris $57,800 in all-inclusive costs.

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.

This motion for supplemental reasons arose from a prior trial where neither party was entirely successful.

Pingyuan Zhao sought judgment for outstanding loans from Pingbo Zhao, repayment of improperly retained cash, and an order for compulsory transfer of Pingbo Zhao's shares in the 51.ca Corporations based on a valuation date of August 28, 2010.

The court granted judgment for the loans (net $81,093.90 plus pre-judgment interest) and repayment of cash ($21,799.54 plus pre-judgment interest), finding Pingbo Zhao liable for these amounts.

However, the court denied the request for a compulsory share transfer, concluding that the conditions for a "just and equitable" winding-up order under section 207(1)(b)(iv) of the OBCA were not met, particularly regarding the proposed valuation date and the lack of agreement between the parties on the relief sought.

No costs were awarded for the motion.

The applicants sought to enforce an arbitration award requiring the respondent to pay a sum determined by a mathematical calculation based on the dwelling's fair cost and a mortgage amount.

The respondent argued a trial was necessary to address issues like the mortgage amount, alleged fraud, and unconscionability.

The court found that the arbitration agreement clearly outlined the payment mechanism and the arbitrator's limited role.

It determined that the "forensic machinery of a trial" was not required, as the contractual issue could be resolved by reviewing the existing evidence.

The court enforced the award, ordering the respondent to pay the calculated difference and arbitration costs.

The applicant and respondent are brothers who were involved in a website business directed toward immigrants from mainland China.

The applicant claimed that the business was operated as a partnership in which he held a 40% interest, or alternatively, that he was a 40% shareholder in the corporations owning the business, and sought dissolution or an oppression remedy.

The respondent cross-applied, seeking a declaration that he owned 85% of the shares and an order requiring the applicant to sell his 15% shareholding due to alleged breaches of fiduciary duty and oppression.

The court found that the applicant was an independent contractor, not a partner or employee, and dismissed his claims for partnership dissolution, wrongful dismissal, and oppression.

The court also dismissed the respondent's cross-application for a forced buyout of the applicant's shares, finding no breach of fiduciary duty or oppression by the applicant in his capacity as a director.

Both the application and cross-application were largely dismissed, save for some specific monetary accounting.

The plaintiff estate trustee brought an action regarding the proceeds from the sale of a property jointly developed by the deceased and the defendant, her former common-law partner.

The defendant relied on a cohabitation agreement that provided property division would be determined solely by legal ownership.

The plaintiff relied on a subsequent oral property development agreement, confirmed in writing by the defendant, that provided for the return of investments and equal sharing of profits.

The court found that neither party understood the cohabitation agreement to apply to their property development activities and set it aside in part under s. 56(4) of the Family Law Act.

The court awarded the plaintiff $3,145,682.88 based on the property development agreement.

Following a lengthy commercial dispute and trial judgment, the defendants wrote to the court alleging a calculation error in the trial decision and seeking informal remediation without bringing a formal motion.

The court considered whether to exercise its authority under r. 59.06(1) of the Rules of Civil Procedure to amend, set aside, or vary the order.

Emphasizing the strong policy of finality in litigation and the narrow scope of the rule, the court held that such powers should only be exercised in exceptional circumstances.

The proposed recalculation was considered too complex and inappropriate to undertake at that late stage.

The court declined to revisit the judgment and noted the parties had remedies elsewhere.