Jacqueline A. Horvat

Loukia Georgiou sought leave to appeal a lower court's dismissal of her application for relief from forfeiture of $9.3 million, which a U.S. court had ordered forfeited as proceeds of crime belonging to her son.

The funds were restrained in Canada under the Mutual Legal Assistance in Criminal Matters Act.

The motion judge determined that the proposed appeal required leave under s. 35 of the Act, not an appeal as of right under the Criminal Code, and found that the grounds raised by the applicant did not constitute questions of law alone justifying leave.

The motion for leave to appeal was dismissed.

The defendants brought a motion for leave to appeal an order of King J. dated February 1, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the plaintiff in the amount of $5,000.

The moving party defendants sought leave to appeal an order dismissing their motion for summary judgment based on a limitation period defence.

The Divisional Court noted that although the motion judge made findings about the limitation period defence, there was no order in that regard, making the order interlocutory.

The motion for leave to appeal was dismissed with costs awarded to the respondents.

This is a costs endorsement following an appeal decision.

The parties reached an agreement on costs, whereby the respondent, William O’Reilly, was ordered to pay $10,000 to the appellant, Tornado Medical Systems Inc., covering costs for both the appeal and the motion below.

No costs were payable by Dr. Jae Kim.

This appeal concerned the scope of common employer liability and director liability for unpaid wages under the Business Corporations Act.

The motion judge had found Tornado Medical Systems, Inc. liable as a common employer and Jae Kim liable as a director for unpaid wages and vacation pay.

The Court of Appeal allowed Tornado's appeal, finding that the motion judge erred in her articulation and application of the common employer doctrine by effectively finding liability based on corporate affiliation rather than an intention to create an employment relationship.

The Court dismissed Dr. Kim's appeal, but varied the judgment to make his director liability conditional on the statutory requirements of execution against the corporation being returned unsatisfied or corporate insolvency.

In a class action for secondary market misrepresentation, the court approved a $1.275 million settlement, the proposed distribution plan, class counsel's fees of $357,000 plus disbursements, and an honorarium of $15,000 for the representative plaintiff.

The settlement was deemed fair, reasonable, and in the best interests of the class, considering the high risks and complexities of the litigation and the limited recovery range due to a CCAA order.

The court emphasized the need for exceptional contribution to justify a representative plaintiff's honorarium, which was found to be present in this case.

The plaintiff, Alex M. Bodnarchuk, brought a consent motion to certify a class action for settlement purposes and to obtain leave to proceed with a secondary market misrepresentation claim under the Ontario Securities Act against Guestlogix Inc., Brett Proud, and Patrick Leung.

The action alleged misrepresentations and omissions regarding credit facilities and financial covenants.

The parties reached a settlement of $1,275,000.

The court granted leave, finding the action was brought in good faith and had a reasonable possibility of success for settlement purposes.

The court also certified the action as a class proceeding for settlement purposes, finding all criteria under the Class Proceedings Act, 1992 were met.

The order approved the settlement notices and procedures for opt-outs and objections, and set a date for the settlement approval hearing.

The appellant appealed a motion judge's stay of crossclaims against its co-defendant, ABB Inc., arising from a defective tap changer.

The motion judge stayed the crossclaims based on the 'Orgalime' standard terms and conditions, which included an arbitration clause and excluded liability for consequential loss.

The appellant argued that ABB failed to specifically bring these clauses to its attention, relying on Tilden Rent-a-Car.

The Court of Appeal dismissed the appeal, finding that the appellant was a sophisticated corporate consumer and could reasonably be expected to have reviewed the terms referenced in the contractual documents.

The applicant sought a declaration that all intellectual property used by the debtor in its business was the property of the debtor and subject to the applicant's security interest.

The debtor's directing mind claimed the trademarks had been assigned to a related company prior to the receivership.

The court found the directing mind lacked credibility, noting the assignments were not disclosed to lenders, were for nominal consideration, and the debtor continued to use and renew the trademarks.

The court declared the trademarks were the property of the debtor and, in the alternative, that the assignments were void as fraudulent conveyances.

A cross-motion by the related company for disgorgement of funds was dismissed.

The moving party brought a motion under Rule 34.10 of the Rules of Civil Procedure to compel the responding parties to produce documents in advance of cross-examinations on affidavits sworn in support of the responding parties' summary judgment motions.

The responding parties argued the motion was prohibited under Rule 48.04(1) because the action had been set down for trial, and that the requests were disproportionate.

The court held that Rule 48.04(1) did not bar the motion and the moving party had not waived the right to documentary discovery.

However, because the responding parties had never served affidavits of documents, the court dismissed the motion without prejudice, directing the responding parties to first serve affidavits of documents so that relevance and proportionality could be properly assessed.

In CCAA proceedings arising from the wind-down of a national retail chain, a pharmacy franchisee association moved to set aside disclaimer notices delivered in respect of franchise agreements for in-store pharmacies, and sought representative status, counsel, a financial advisor, and estate-funded professional fees.

The court held that the statutory factors under s. 32(4) of the Companies’ Creditors Arrangement Act favoured permitting the disclaimers to stand, as store closures were inevitable, the monitor had approved the notices, setting them aside would delay liquidation and divert estate value from unsecured creditors generally, and no evidence showed continued operation in dark stores would improve the franchisees’ financial circumstances.

The court nevertheless found limited collective representation would assist with transition issues including regulators, inventory return, and claims, and appointed the association as representative, with counsel and a financial advisor.

Funding of up to $100,000 inclusive of disbursements and HST was approved, but no administrative charge was granted.

The plaintiff developer and the defendant municipality entered into a supplementary agreement regarding the enhancement of a sewage system.

The trial judge found that the municipality breached the agreement by allocating sewage capacity to a competing developer before the plaintiff's subdivision was completed, and awarded damages for lost commercial tenancies.

On appeal, the Court of Appeal held that the trial judge erred in his interpretation of the agreement.

The court found that the clause granting the plaintiff a monopoly over sewage capacity was ultra vires as it conflicted with the municipality's statutory obligation under s. 86(1) of the Municipal Act, 2001 to supply sewage services where sufficient capacity exists.

The court severed the offending clause and concluded that the municipality did not breach the revised agreement.

Furthermore, the court held that the damages claimed for lost commercial tenancies were too remote.

The appeal was allowed and the action dismissed.

The plaintiff moved to amend its Statement of Claim shortly before trial in a commercial dispute arising from the termination of a racetrack slots program agreement.

The defendant opposed the amendment on grounds including alleged limitation issues, withdrawal of a prior admission, expansion beyond the agreed issues list, and the inclusion of argumentative pleading.

The court reviewed the principles governing amendments under Rule 26 of the Rules of Civil Procedure and concluded that amendments should generally be granted unless non-compensable prejudice is demonstrated.

Finding no such prejudice, the court allowed the amendments but imposed conditions restricting further discovery and requiring the amendments to be filed in black‑line format.

The court also rejected arguments that the amendments improperly altered the character of the action or were barred by limitation on the record before it.

The plaintiffs brought a proposed class action alleging that Air Canada improperly collected U.S. transportation taxes on tickets purchased in Canada and between Canada and the U.S., thereby giving extra-territorial effect to U.S. tax laws.

The motion judge found the Ontario court had jurisdiction but stayed the claims of passengers who paid in the U.S. on the basis of forum non conveniens.

On appeal and cross-appeal, the Court of Appeal held that while Ontario courts have jurisdiction to determine if a foreign law is being enforced extra-territorially, the entire action should be stayed on the basis of forum non conveniens.

The principle of comity requires that the interpretation of the U.S. Internal Revenue Code be undertaken by U.S. authorities first.

The defendant, APP Capital Inc., brought a motion for summary judgment to dismiss the plaintiff's claims for breach of an employment contract and unjust enrichment.

The plaintiff, the former CFO of the co-defendant corporation, claimed entitlement to compensation under a 2008 employment agreement following the sale of the corporation.

The court applied the framework from Hryniak v. Mauldin and found that a genuine issue requiring a trial existed regarding whether the moving party was bound by the 2008 agreement.

The court declined to use its fact-finding powers due to incomplete documentary discovery and the potential for inconsistent verdicts, dismissing the motion.

Minority shareholders sought relief under the oppression remedy and dissent and appraisal provisions of the Business Corporations Act after a majority shareholder attempted to restructure the corporation by reducing common shares and issuing scrip certificates that would effectively eliminate the minority’s interests.

The court determined the fair value of the dissenting shareholders’ shares as of the valuation date and rejected a proposed defence of laches, holding that the Limitations Act, 2002 applies to oppression claims and that laches does not apply where the claim is brought within the statutory limitation period.

While some alleged acts of misconduct, including removal of a director and management fees, were not oppressive, the proposed share restructuring scheme was found to be oppressive because its real purpose was to squeeze out the minority shareholders without fair compensation.

The court fixed the fair value of the shares based on a hotel valuation and awarded limited damages for oppression given that the dissent remedy already compensated the shareholders.

The plaintiffs commenced a proposed class action alleging that the defendant airline improperly charged United States transportation taxes on ticket purchases.

The defendant moved to dismiss or stay the action for lack of jurisdiction and on the basis of forum non conveniens.

The court held that Ontario had presence‑based jurisdiction because the defendant carried on business in Ontario and there was a real and substantial connection to the dispute.

The revenue rule did not bar adjudication because the action did not seek to enforce foreign tax laws but rather challenged the defendant’s collection of charges from customers.

The motion was dismissed with respect to claims relating to tickets paid for in Canada but granted in relation to tickets paid for in the United States, which were stayed as U.S. courts were the clearly more appropriate forum.

The plaintiffs sought damages arising from the termination of a memorandum of understanding and a subsequent agreement relating to the proposed development of an 80 MW wind energy project on the defendant's industrial lands.

The court held that both documents were largely agreements to agree and therefore unenforceable with respect to the broader development and lease arrangements.

However, the documents imposed limited binding obligations, including a requirement to provide 60 days’ notice before termination of the memorandum and an obligation to allow access for wind measurement under the second agreement.

The defendant breached those obligations by terminating immediately and preventing continued wind testing.

Claims for fiduciary duty, breach of confidence, unjust enrichment, partnership, and loss of chance damages were rejected.

Following a successful application concerning governance of a religious society, the applicants sought full indemnity costs of $280,000 against numerous respondents.

They argued that the respondents engaged in reprehensible conduct by refusing to comply with the society’s constitution, attempting to undermine election results, and advancing questionable evidence during litigation.

The court held that elevated costs require either a Rule 49 offer or reprehensible conduct in the litigation itself, and that most of the criticized behaviour occurred outside the conduct of the litigation.

Applying the reasonableness principles under s.131 of the Courts of Justice Act and r.57.01 of the Rules of Civil Procedure, the court determined that partial indemnity costs were appropriate.

Costs of $160,000 inclusive of fees, disbursements, and taxes were awarded.

Following the partial dismissal of an appeal and the remittal of a breach of contract issue for trial, the parties made written submissions on whether security should remain in place pending the trial.

The Court of Appeal held that the issue of security should be decided by the trial court.

The court ordered the security to remain in place for 60 days to allow the appellant to move for security in the trial court.