Ira Nishisato

The court considered whether to stay Bombardier Inc.'s Ontario action against Alstom Rail Sweden AB for a tax loss purchase price adjustment, pending arbitration before the International Chamber of Commerce.

The dispute centered on whether the claim fell within the scope of an arbitration agreement in a 2020 share purchase agreement, or was carved out by a prior 2017 agreement that conferred exclusive jurisdiction on Ontario courts.

Applying the Supreme Court’s guidance in Peace River Hydro Partners v. Petrowest Corp., the court found Alstom Sweden had established an arguable case that the dispute was subject to arbitration and stayed the action.

The respondent, Webuild S.P.A., brought a motion to stay an application by Sociedad Concesionaria Metropolitana De Salud S.A. (SCMS) to enforce a Chilean arbitral award in Ontario.

The award was originally against Astaldi S.p.A., and SCMS sought to enforce it against Webuild, arguing Webuild assumed Astaldi's liabilities through an Italian restructuring proceeding.

Webuild contended that the threshold issue of liability assumption under Italian law should be determined in Italy.

The court granted Webuild's motion for a temporary stay, finding Italy to be the forum non conveniens for this complex issue, citing the need to avoid conflicting judgments and costly duplication of resources across multiple jurisdictions.

This is a costs endorsement following the dismissal of an appeal and a motion to quash.

The respondent, successful on the appeal, sought substantial indemnity costs of over $230,000.

The appellants argued for a net award of $30,000.

The court rejected the request for substantial indemnity, agreeing that costs for the unsuccessful motion to quash should be deducted.

The court ultimately awarded the respondent $90,000 in all-inclusive partial indemnity costs, finding the amounts and issues involved in the appeal significant.

This is an appeal from a Superior Court decision that denied leave to appeal an arbitration award exceeding $100 million.

The central issue was whether the arbitration agreement precluded appeals on questions of law, specifically interpreting phrases like "finally settled" and "final and binding" in the context of the Arbitration Act, 1991 and ICC Rules.

The Court of Appeal upheld the application judge's finding that the arbitration agreement precluded appeals, thereby confirming that leave to appeal was not available.

The court also addressed and dismissed a motion to quash the appeal, clarifying the narrow circumstances under which a denial of leave to appeal by a Superior Court judge can be appealed to the Court of Appeal.

This motion concerned an application by Tower-EBC G.P./S.E.N.C. (TEBC) to enforce two arbitral awards (a Partial Final Award on liability and damages, and a Final Award on costs) against Baffinland Iron Mines Corporation and Baffinland Iron Mines LP (BIM).

BIM raised several defenses, including a pending application to set aside or appeal the awards, which had previously been dismissed by the court.

The court granted TEBC's application to enforce both awards, confirming the awarded amounts for damages and costs, with a condition regarding the transfer of equipment title and excluding "applicable taxes" as not provided for in the original arbitral awards.

Pre-judgment interest was maintained as per the Tribunal's award.

The applicants, Baffinland Iron Mines LP and Baffinland Iron Mines Corporation (BIM), sought to set aside an arbitration award of over $70 million and a subsequent costs award in favour of the respondent, Tower-EBC G.P./S.E.N.C. (TEBC), pursuant to s. 46 of the Arbitration Act, 1991, and for leave to appeal under s. 45(1) of the Act.

The court dismissed BIM's application, finding no grounds to set aside the award for lack of jurisdiction or procedural unfairness, and further held that the arbitration agreement precluded an appeal from the Tribunal's decision.

The defendants were previously found in civil contempt for breaching a court order that permanently enjoined them from infringing the plaintiffs' copyrights and trademarks by streaming content over Shava TV.

In determining the appropriate penalty, the court noted that the defendants had substantially ceased the offending conduct and assigned the Shava TV rights to the plaintiffs.

The court declined to impose the jail sentences sought by the plaintiffs, finding that a conditional discharge subject to two years less a day of probation would better achieve the coercive purpose of civil contempt.

The plaintiffs were awarded substantial indemnity costs fixed at $484,305.

The plaintiffs sought to hold the defendants, Imran and Naeem Butt, in contempt of a prior judgment from Justice Pattillo dated August 1, 2018, which recognized and enforced a U.S. judgment prohibiting copyright and trademark infringement related to pirated television channels sold under the "ShavaTV" brand.

The defendants conceded some contempt but disputed its extent.

The court found the defendants in broad contempt, rejecting their claim that the business was transferred to a third party in Pakistan, Rizwan Ahmed Shams.

The court found the alleged transfer implausible due to lack of documentation, continued use of the defendants' PayPal accounts for business and personal expenses, and Mr. Shams' refusal to be cross-examined.

The court also confirmed jurisdiction over Naeem Butt, who resided in Germany, due to the real and substantial connection with Ontario, including sales to Ontario purchasers and use of a Canadian hosting company.

Following a five-week trial where the plaintiffs succeeded in claims for breach of fiduciary duty and conspiracy, the court determined the appropriate scale and quantum of costs.

The plaintiffs sought over $6.2 million on a substantial indemnity basis.

The court rejected substantial indemnity costs, finding the defendants' litigation conduct did not warrant such a sanction and the pre-litigation conduct was already addressed through punitive damages and disgorgement.

The court awarded partial indemnity costs of $2,200,000 for the action and $20,000 for the counterclaim, apportioning liability among the defendants based on the claims.

The Ontario Superior Court of Justice ruled on the applicable exchange rate and prejudgment interest following a judgment where defendants were found to have breached fiduciary duties and conspired to conceal assets.

The court applied the default exchange rate under s. 121(1) of the Courts of Justice Act, which mandates conversion at the date of payment, rejecting the defendants' argument for an earlier transaction date.

The court found that a change in exchange rate alone does not constitute inequity to depart from the default rule.

Prejudgment interest was awarded on the damages and disgorgement amounts from the date the cause of action arose (August 15, 2012), at a rate of 1.3%, in accordance with s. 128(1) of the CJA, excluding punitive damages.

The plaintiffs, founders of a venture capital fund, brought an action against their co-founders and a third-party purchaser for breach of fiduciary duty, breach of contract, and conspiracy.

The court found that the co-founders secretly established a competing fund and conspired with the purchaser to acquire a portfolio company at a discounted price while concealing a valuable asset (the Tinder app).

The court awarded compensatory damages, disgorgement of profits, and punitive damages against the defendants.

An appeal from a Superior Court judgment dated August 1, 2018.

The appellants failed to appear at the hearing scheduled for April 2, 2019.

One appellant declared bankruptcy, though the stay was lifted as it relates to the appeal.

The other appellant left the jurisdiction.

The court scheduled the appeal for May 16, 2019, allowing the respondents to move to dismiss for non-compliance with procedural orders.

The appellants were warned that any adjournment request without prior conference call would likely fail.

The plaintiff employer brought a motion for summary judgment against a former employee and his related companies for damages arising from a false invoicing scheme.

The employee had secretly incorporated a company to act as a middleman, replacing invoices from Chinese suppliers with marked-up invoices directing payment to his company's bank account.

The court granted summary judgment, finding the employee, his wife, and their company liable for civil fraud.

The court awarded compensatory damages of $864,238.75 USD, special damages for investigation costs, and $25,000 in punitive damages against the employee.

The plaintiffs sought summary judgment to recognize and enforce a U.S. default judgment in Ontario against the defendants for copyright and trademark infringement and unfair competition.

The defendants challenged the U.S. court's jurisdiction, alleged fraud, and claimed a denial of natural justice due to improper service.

The Ontario Superior Court found that the U.S. court properly exercised jurisdiction based on a 'real and substantial connection' to Virginia, dismissed the fraud defense, and confirmed proper service.

The court granted summary judgment, enforcing both the monetary damages and the permanent injunction from the U.S. judgment.

The defendants brought a motion to set aside ex parte Anton Piller and Mareva orders obtained by the plaintiff employer in an action for fraud.

The plaintiff alleged that its former employee and his wife used a shell company to secretly mark up the prices of electronic components purchased from Chinese suppliers.

The court dismissed the motion, finding that the plaintiff had made full and fair disclosure of material facts when obtaining the orders.

The court also held that the evidence justified the continuation of both orders, as there was a strong prima facie case of fraud, a risk of destruction of evidence, and a risk of dissipation of assets.

The applicants successfully brought a motion finding the respondents in civil contempt for failing to return nine vehicles as ordered by the court.

In this decision, the court determined the costs of the contempt motion and the appropriate sanction.

The court awarded the applicants costs on a substantial indemnity basis, fixed at $42,633.25, noting the respondents' deliberate but not entirely egregious conduct.

For the contempt sanction, applying the Boily factors, the court imposed fines of $10,000 on the corporate respondent and $2,500 on the individual respondent, payable to the Provincial Treasurer, to reflect deterrence and denunciation while acknowledging the contempt had since been purged.

The applicants brought a motion to find the respondents HK United Trucks Limited and Karnail Singh Mand in civil contempt for failing to comply with a prior court order requiring them to return 9 commercial trucks.

The respondents argued they were bona fide purchasers for value without notice and needed the trucks to complete contracts.

The court rejected these arguments, finding that the respondents knew or ought to have known the trucks belonged to the applicant corporation.

The court found the respondents in contempt beyond a reasonable doubt and ordered them to park and secure the trucks pending a sanction hearing.

Multiple tobacco manufacturer defendants sought partial indemnity costs of approximately $300,000 after withdrawing previously scheduled motions to strike the Crown’s statement of claim in a health care cost recovery action under the Tobacco Damages and Health Care Costs Recovery Act.

The defendants argued they were the successful parties because their motions prompted extensive amendments to the pleading and that the Crown delayed notifying them of its intention to amend.

The court held that the amendments addressed only some of the alleged deficiencies and that significant legal issues remained unresolved when the defendants chose to withdraw the motions.

As a result, success on the motions was considered divided.

Exercising discretion under s. 131 of the Courts of Justice Act, the court ordered that each side bear its own costs.

Following the dismissal of motions to set aside service ex juris and to stay or dismiss an action for lack of jurisdiction, the court determined the appropriate costs award.

The successful party sought substantial partial indemnity costs.

The court reduced the claimed costs to reflect time spent on unsuccessful jurisdictional arguments, unnecessary steps, and work unrelated to the motions.

Costs were ultimately fixed at a reduced amount and apportioned severally among the moving defendants, reflecting their differing roles in the litigation, including the raising of a forum non conveniens argument.

Foreign defendants moved to set aside service ex juris of a statement of claim and to stay or dismiss an Ontario action alleging fraudulent conveyance of wind turbine business assets.

The plaintiff had previously obtained judgment in Ontario for breach of a letter of intent to market turbines in Canada, and alleged the defendants transferred assets to avoid satisfying that judgment.

The court held that a presumptive connecting factor existed because a contract made and breached in Ontario was connected to the dispute regarding the asset transfer.

The defendants failed to rebut the presumption of jurisdiction and did not demonstrate that another forum, such as California, was clearly more appropriate under forum non conveniens principles.

Service ex juris and substituted service were upheld and the action was permitted to proceed in Ontario.