James F. Diamond

The appellants appealed the judgment of the application judge, arguing he failed to invalidate actions taken at a national convention in December 2013.

The Court of Appeal dismissed the appeal, finding that the application judge correctly treated the issue as collateral because it was not specifically addressed in argument.

Furthermore, a prior unappealed order had specifically permitted the convention and elections to proceed.

The appellants' remedy was to appeal the refusal of the injunction or put the issue squarely before the application judge.

The appellant, a resident of the United States, appealed the dismissal of her motion to dismiss or stay an action on a debt for lack of jurisdiction.

The respondent, an Ontario resident, sued the appellant for repayment of a loan.

The Court of Appeal dismissed the appeal, finding that the contract was made in Ontario when the respondent received telephone confirmation of the acceptance of her offer to lend funds.

This established a presumptive connecting factor for jurisdiction simpliciter under the Van Breda framework, which the appellant failed to rebut.

Following an application and counter‑application relating to an agreement of purchase and sale, the successful party sought costs on a substantial indemnity basis exceeding $45,000.

The court found the successful party had prevailed entirely, including obtaining an order that the deposit be paid and establishing liability for breach of contract.

However, the issues were primarily contractual interpretation and the facts were largely non‑controversial.

Applying Rule 57.01(1) of the Rules of Civil Procedure and the fairness principle from Boucher v. Public Accountants Council, the court declined substantial indemnity costs.

Costs were awarded on a partial indemnity basis against two opposing parties jointly and severally.

Two competing applications concerned governance of a national non‑profit organization and ownership of real property administered by one of its local branches.

The court considered whether a trust agreement purporting to grant beneficial ownership of property to the branch was valid and whether the organization’s executive board lawfully removed the branch president and dissolved the branch.

Interpreting the organization’s constitution, the court held that branches could not own property and that all real property was owned beneficially and legally by the national organization.

The purported trust agreement was therefore invalid.

However, the executive board’s decisions removing the branch president and dissolving the branch were quashed for breach of natural justice because adequate notice and opportunity to respond were not provided.

Following the dismissal of a motion by the defendants to dissolve a Mareva injunction, the court addressed the issue of costs.

The plaintiffs sought costs of $22,170.43 inclusive of disbursements and HST, while the defendants argued the amount should be reduced to $15,000.

The court rejected the defendants’ criticisms of the time spent by plaintiffs’ counsel, noting the absence of comparative information about defence counsel hours and characterizing the challenge as unsupported.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court found that a costs award of $22,000 inclusive of disbursements and HST was appropriate.

The moving defendants were ordered to pay the amount within 30 days, failing which the receiver was authorized to pay the award and charge it to the receiver accounts.

The defendants moved to set aside earlier ex parte orders granting a Mareva injunction and appointing a receiver over corporate assets allegedly used to shield property from enforcement of a substantial fraud judgment.

They argued that changed circumstances following a partial appellate reduction of the judgment, the alleged inadequacy of the plaintiffs’ undertaking as to damages, delay in prosecuting the action, and the balance of convenience justified dissolving the orders.

The court held that although the Court of Appeal reduced and modified aspects of the original fraud judgment, the defendant remained liable for over $12 million and the underlying factual basis for asset preservation had not materially changed.

The court also rejected arguments concerning the undertaking as to damages and delay, noting the extensive appellate proceedings that reasonably delayed progress.

The Mareva injunction and receivership orders therefore remained justified to preserve assets pending trial.

The respondent settled a third-party claim of $2.25 million for $100,000 using a Rule 49 offer and sought to enforce indemnity agreements against the appellants.

The application judge allowed the enforcement.

On appeal, the appellants argued the agreements lacked consideration and the settlement was unreasonable.

The Court of Appeal dismissed the appeal, finding it unfair to allow the appellants to raise lack of consideration at the last minute after previously conceding the agreements' validity.

The Court also upheld the application judge's finding that the settlement was reasonable given the litigation risks and potential costs.

The moving parties sought to review and set aside an order refusing to grant a stay of proceedings of a Court of Appeal judgment pending their application for leave to appeal to the Supreme Court of Canada.

The moving parties sought the stay to prevent the responding parties from moving to alter or discharge a receivership order in a separate Superior Court proceeding.

The Court of Appeal dismissed the motion, finding that the request did not relate to a proceeding with respect to the judgment from which leave to appeal was being sought, as the receivership order was made in a distinct proceeding.

The appellants appealed an order dismissing their motion to set aside a Mareva injunction and receivership order.

They argued that because the underlying trial judgment was stayed pending appeal, only the Court of Appeal had jurisdiction to grant such relief under Rule 63.03(1).

The Court of Appeal dismissed the appeal, finding that the injunction and receivership were granted in a separate, new action to preserve assets, and did not constitute steps to enforce the stayed trial judgment.

A lawyer sought enforcement of an indemnity agreement executed by former clients in relation to claims arising from the release of disputed trust funds.

After a third-party action was commenced against the lawyer, his professional insurer settled the claim for $100,000 and sought reimbursement under the indemnity agreement.

The respondents argued the settlement was improvident and unreasonable.

The court held that the settlement was reasonable in the circumstances, particularly given the uncertainty of a pending Rule 21 motion and the risks of continued litigation involving a multi‑million‑dollar claim.

The respondents were found jointly and severally liable to reimburse the amounts paid under the indemnity agreement.

The moving parties (respondents on appeal) brought a motion to quash the appellants' appeal from an order dismissing their motion to strike a statement of claim.

The moving parties argued the order was interlocutory.

The Court of Appeal held that because the motion judge dismissed the appellants' motion to strike the entire action for lack of jurisdiction, the order finally determined a substantive right and was therefore a final order.

The motion to quash the appeal was dismissed.

The appellants appealed a trial judgment finding them liable for over $20 million in damages for improperly placing a paving company, Osler, into bankruptcy as part of a fraudulent scheme to deprive the respondents (the Alfano family trusts) of their 87 percent equity interest.

The Court of Appeal upheld the finding of liability against Mr. Piersanti, agreeing that he orchestrated a fraudulent scheme, including concocting a fake shareholders' agreement and assigning the company into bankruptcy.

The Court also upheld the trial judge's decision to exclude the appellants' expert witness for lacking independence and acting as an advocate.

However, the Court allowed the appeal in part by setting aside the liability finding against Ms. Piersanti, reducing the compensatory damages to $14,391,807 based on adjustments conceded by the respondents' expert at trial, and setting aside orders requiring a related company to pay $2.5 million into court and declaring an interest in certain properties.

The appellant, an immigration consultant, sued a Korean-language newspaper and its reporter for libel over an article concerning a scheme that left South Korean truck drivers stranded in Canada.

At trial, the jury found that the article did not defame the appellant.

The appellant appealed, arguing the verdict was perverse.

The Court of Appeal dismissed the appeal, holding that the jury's verdict was not so plainly unreasonable and unjust that no jury acting judicially could have reached it, as it was open to the jury to conclude that the ordinary reader would not understand the article to discredit the appellant.

The appellants appealed a judgment of the Superior Court of Justice.

At the hearing, the Court of Appeal refused to allow the appellants' agent to make representations because a previous panel had already barred him from doing so and he was a witness in the proceeding.

After reviewing the factum of the appellants' former counsel and the application judge's reasons, the Court found no merit to the appeal and dismissed it with costs.

The appellant appealed a trial judgment that granted the respondent $27,641.57 and dismissed the appellant's claim for constructive dismissal.

The Divisional Court found no error in the trial judge's placement of the onus on the appellant to prove constructive dismissal after the respondent proved he had resigned.

The court also found no palpable or overriding error in the trial judge's factual findings, including her rejection of the appellant's claim that he resigned due to unaddressed safety concerns.

The appeal was dismissed with costs.

The appellant challenged the constitutionality of the Ontario Civil Remedies Act, 2001, arguing that its civil forfeiture provisions were ultra vires the province because they encroached on the federal criminal law power.

The Supreme Court of Canada held that the legislation is valid under the province's power over property and civil rights.

The Court found that the dominant purpose of the Act is to compensate victims and suppress conditions leading to crime by removing financial incentives, rather than to punish criminal offenders.

Furthermore, the Court concluded there was no operational conflict between the provincial forfeiture scheme and the sentencing provisions of the Criminal Code.

The appellant bank appealed a summary judgment requiring it to honour three certified cheques.

The cheques were purchased using funds derived from a fraudulent mortgage scheme.

The motion judge had found no evidence that the respondent payee participated in the fraud and held that the bank was obliged to pay.

The Court of Appeal allowed the appeal, finding that the motion judge misapplied the burden of proof under the Bills of Exchange Act.

Because the bills were affected by fraud, the burden shifted to the respondent to prove he was a holder in due course.

Given the suspicious circumstances and credibility issues, there were genuine issues for trial.

The appellant appealed a trial judgment regarding the conversion of its customer relationships and equipment by the respondents.

The Court of Appeal found that the trial judge erred in determining the extent of the respondents' entitlement to compete based on a rescinded franchise agreement, and in finding that the appellant failed to mitigate its damages.

The Court allowed the appeal, set aside the trial judgment, and awarded the appellant $40,000 in damages for the conversion of its business relationships, plus costs.

The respondent, a former director of a corporation, sought a declaration that his insurer owed a duty to defend him against a counterclaim brought by the corporation.

The insurer denied coverage based on an 'insured v. insured' exclusion clause in the Directors' and Officers' Liability Policy.

The application judge found a duty to defend, relying on American authorities that considered the purpose of the exclusion clause.

The Court of Appeal allowed the insurer's appeal, holding that the exclusion clause was unambiguous and clearly excluded coverage for claims brought by the corporation against its directors.

As the claim fell outside coverage, there was no duty to defend.

The appellant franchisor failed to provide the required disclosure document to the respondent franchisee under the Arthur Wishart Act.

Days before the two-year limitation period expired, the franchisee rescinded the agreement and immediately set up a competing business servicing the same customers.

The application judge upheld the rescission and dismissed the franchisor's counter-application for an accounting and injunctive relief.

On appeal, the Court of Appeal held that while the franchisee has an absolute right to rescission under s. 6(2), the franchisor retains the right under s. 9 to pursue an action for the franchisee's post-rescission conduct.

The Court set aside the dismissal of the franchisor's application and converted it into an action due to material facts in dispute.