Jamie M. Sanderson

This decision concerns the approval of a sale process and a motion to appoint the sales officer as receiver in the context of a deadlocked insurance brokerage business.

The court approves the sale process and related ancillary relief, including the appointment of an interim broker and non-solicitation orders, but dismisses the motion to appoint the sales officer as receiver.

The ruling addresses issues of conflict of interest, compliance with prior orders, and the preservation of assets pending winding up.

This decision concerns the approval of a sale process and a motion to appoint the sales officer as receiver in the context of a deadlocked insurance brokerage business.

The court approves the sale process and related ancillary relief, including the appointment of an interim broker and non-solicitation orders, but dismisses the motion to appoint the sales officer as receiver.

The ruling addresses issues of conflict of interest, compliance with prior orders, and the preservation of assets pending winding up.

The decision concerns a motion by the Defendants to amend their Statement of Defence in an estate dispute regarding whether a $160,000 transfer from the deceased to his cousin was a loan or a gift.

The court finds that the proposed amendments do not constitute a withdrawal of admissions, and grants leave to amend under Rule 26.01, as no non-compensable prejudice to the Plaintiff is established.

The ruling clarifies the distinction between factual and legal admissions in pleadings and the applicable test for amendments.

The plaintiffs, Gary and Jennifer McKenzie, brought two claims: one for breach of contract against Fabco Holdings Inc. and Jaymor Specialty Housing General Partner Inc. (Fabco/Jaymor) arising from an aborted real estate purchase agreement, and another for slander of title/injurious falsehood against Gerald Anthony, a neighbour, regarding a disputed property boundary.

The court found that Fabco/Jaymor breached the purchase agreement, not due to a legitimate title issue, but because the property was unsuitable for their development plans.

Fabco had assigned its obligations to Jaymor, and the court held Jaymor solely responsible for the breach, releasing Fabco from liability per the contract's assignment clause.

The court awarded the plaintiffs substantial damages against Jaymor for loss of bargain and associated costs.

Regarding the title claim, the court found Anthony liable for slander of title/injurious falsehood for registering a caution and application on title without bona fide grounds, which delayed the subsequent sale of the property.

However, Anthony was not held liable for damages related to the initial aborted sale, as that was attributed to Fabco/Jaymor's independent reasons.

The court awarded damages against Anthony for losses incurred due to the delay in the second property sale.

The defendants' counterclaim was dismissed, and the plaintiffs were found to have reasonably mitigated their damages.

This endorsement addresses the costs of a motion for advice and directions brought by a Sales Officer in three oppression remedy applications.

The underlying motion resolved in favour of Doug Middleton, Jason Middleton, and JDM Group Ltd. (the "Middleton parties") against Mark Ber and his affiliates (the "Ber parties"), finding Mark's actions had undermined the Sales Officer's mandate.

The court considered whether Mark's conduct warranted substantial indemnity costs, ultimately concluding it did not meet the threshold for "reprehensible, scandalous or outrageous" behaviour.

The court ordered the Ber parties to pay partial indemnity costs to the Middleton parties and deferred any ruling on the disproportionate allocation of the Sales Officer's costs.

This motion, brought by the court-appointed Sales Officer in consolidated oppression remedy applications, sought directions regarding the inclusion of insurance policies in the sale plan of two closely held companies, Producer’s Planning Group Ltd. and The Benefits Group Inc. The dispute centered on 789 policies (PG Transferred Policies) that had been transferred to Mark Ber's company, The Producer’s Group Ltd. The court addressed two main issues: the ownership of 'PG Originating Policies' and the inclusion of 'PG Orphaned Policies' which clients transferred to Mark Ber's company after he ceased providing services through the original companies.

The court found that the PG Originating Policies were owned by the Planning Group and that Mark Ber improperly caused their transfer.

It also found that the PG Orphaned Policies should be included in the sale plan due to Mark Ber's unilateral actions undermining the court's prior order.

The court dismissed the respondents' request for a trial of issues, affirming its jurisdiction to decide the matter on the written record, consistent with Commercial List practice.

The applicants sought urgent interim relief against a respondent for alleged misappropriation of corporate assets of a company undergoing court-ordered winding-up.

The court addressed jurisdiction, finding the issues had not merged in a prior final order.

While a strong prima facie case for some alleged improper payments was found, the court determined no irreparable harm was established, declining to grant immediate mandatory repayment.

Instead, it clarified rules for future expenses and expanded the Sales Officer's powers to investigate and reconcile the disputed payments as part of the ongoing winding-up process.

The plaintiff, Penalta Group Ltd., brought a motion to extend deadlines for serving expert reports and setting the action down for trial, following a previous order that set aside an administrative dismissal for delay.

The defendant American Buildings Company opposed the motion, arguing for automatic reinstatement of the dismissal.

The court granted the extension for setting the action down for trial to November 3, 2022, and partially granted the extension for expert reports, specifically for Mr. Hartog's report to July 30, 2022.

However, a further extension for an additional expert report was denied due to insufficient evidence that an expert had been retained or how long it would take.

The court also granted leave for the plaintiff to continue the motion after serving the trial record.

This is a costs endorsement for three related applications concerning shareholder rights and oppression remedies in private companies (Producers Planning Group Ltd., The Benefits Group Inc., and Thornbridge Capital Inc.).

The main applications resulted in an order for the sale of businesses and assets of two companies, while claims for oppression remedies were dismissed for all parties.

The court found that all parties had substantial success as respondents in opposing the oppression claims made against them.

Due to the overlapping issues and the divided success, the court ordered no costs for any of the three applications, as the costs of successful respondents would largely offset the costs for which they would be liable as applicants in other applications.

The plaintiff, a trim carpenter, brought a construction lien and breach of contract action against the general contractor and the homeowner for unpaid work on a residential project.

The court found that the general contractor wrongfully repudiated the oral subcontract by failing to pay the plaintiff and denying him access to the site.

The court also found that the general contractor made a pre-contractual misrepresentation that formed a collateral warranty, causing the contract price to revert to its original higher amount when the condition was breached.

The plaintiff was awarded a lien of $16,225, for which both defendants were jointly and severally liable, and $7,200 in breach of contract damages against the general contractor.

The plaintiff brought a motion for summary judgment for damages arising from an aborted real estate transaction.

The defendants admitted to breaching the agreement of purchase and sale but argued the plaintiff failed to mitigate his damages when he resold the property for a lower price in a falling market.

The court heard expert appraisal evidence from both parties.

The court found the defendants failed to prove the plaintiff acted unreasonably in mitigating his damages, noting the property was sold on the open market after reasonable exposure.

Summary judgment was granted in favour of the plaintiff for $111,702.58, representing the difference in sale prices plus carrying costs, less the deposit.

The defendant moved to set aside a default judgment, her noting in default, and writs of seizure and sale.

The plaintiffs opposed and sought terms if the judgment was set aside.

The court applied the five-factor test from Mountain View Farms Ltd. v. McQueen, finding the motion was brought promptly, there was a plausible excuse for default (disputed service), and an arguable defence regarding an ambiguous closing date clause.

The court granted the motion to set aside the default judgment and noting in default, but imposed terms including payment of costs thrown away ($14,376.51) and allowing the writs of seizure and sale to remain in place as security, though not immediately enforceable.

The court determined the fair market value of the applicant's shares and the costs of the proceeding following a successful oppression application.

The court rejected the respondents' liquidation approach to valuation, preferring a going-concern adjusted book value approach, and fixed the share value at $668,674.

The court awarded substantial indemnity costs to the applicant and counter-respondents, citing the respondents' incivility, excessive posturing, and unfounded allegations of fraud.

The plaintiffs brought a motion for summary judgment after the defendants failed to close on a residential real estate transaction.

The defendants had entered into an agreement of purchase and sale for $2,250,000 but failed to pay the second deposit and repudiated the contract due to financing issues.

The plaintiffs relisted the property and eventually sold it for $1,770,000.

The defendants argued the plaintiffs failed to mitigate their damages by not relisting at a lower price immediately.

The court found no genuine issue requiring a trial, holding that the plaintiffs acted reasonably in their mitigation efforts, and granted summary judgment for the difference in sale price plus special damages.

The Landlord, 1694879 Ontario Inc., brought claims for fraudulent removal of goods against its tenant, Baffo's Incorporated, and several "Personal Defendants" who allegedly aided the removal.

Baffo's and the Personal Defendants brought cross-motions for summary judgment to dismiss these claims.

Baffo's also counterclaimed for wrongful distress and conversion, and sought punitive damages.

The court dismissed the Landlord's fraudulent removal claims against all defendants, finding no fraudulent intent as the goods removed were done so with the Landlord's consent (as brokered by police) and the remaining goods far exceeded the rental arrears.

The court granted summary judgment to Baffo's on its wrongful distress and conversion claims, finding the Landlord's actions illegal, excessive, and oppressive due to unlawful entry, lock changes, inflated arrears claims, seizure of fixtures, and unreasonable delay in selling goods.

The court also found Daryl Black, the Landlord's president, personally liable for the wrongful distress.

Punitive damages of $20,000 were awarded to Baffo's, and substantial indemnity costs were awarded to the Personal Defendants ($140,000) and Baffo's ($78,000).

Damages for wrongful distress and rental arrears were referred to a Master.

Shareholders of two successive corporate ventures to develop oil and gas fields in Russia sued defendants for fraudulent misrepresentation, deceit, and conspiracy.

The defendants had induced the plaintiffs to invest US$50 million in a sham public company (Magellan) by falsely representing that another investor (BDW) had committed to investing US$70 million.

When the fraud was discovered, the parties reorganized under a new company (Koll), but the defendants continued to deceive the plaintiffs about asset values and IPO prospects to induce further investment.

The trial judge awarded full compensatory damages to the plaintiffs.

On appeal, the court upheld liability for pre-June 2006 conduct but set aside liability for post-June 2006 conduct based on unpleaded fraudulent misrepresentation claims regarding IPO-related statements, while maintaining liability for wrongful garnishment of remaining Magellan funds.

The applicant, Altus Group Limited, sought to set aside an arbitration award in favor of the respondent, 3GS Incorporated, on the grounds of fraud.

Altus alleged that a key witness for 3GS, Lisa Robbins, lied under oath about her criminal convictions during the arbitration.

The court found that Ms. Robbins did indeed give dishonest testimony regarding her criminal record.

However, the court ultimately dismissed the application, concluding that Ms. Robbins' fraudulent evidence was not material to the outcome of the arbitration, as the arbitrator's decision was primarily based on Altus's own knowledge and concealment of its breach, and the credible testimony of 3GS's principals, Alan and Ann Gordon, which was untainted by Ms. Robbins' dishonesty.

Following a trial to determine the Gross Rentable Area of a leased premises, both parties claimed success and sought partial indemnity costs.

The court found the defendant to be the successful party, as the determined area was significantly higher than the plaintiff's position, resulting in substantial additional rent over the lease term.

The court awarded the defendant costs but reduced the claimed amount due to excessive photocopying disbursements and time spent on an unsuccessful argument regarding BOMA standards.

A municipal councillor brought a defamation action against the mayor and several councillors arising from a public council statement and related legal opinion criticizing the councillor’s blog posts about senior municipal staff.

The court held the statements were not defamatory and were substantially true in substance, as the plaintiff’s blogs contained disparaging criticism of staff contrary to the municipal code of conduct.

Even if defamatory, the publications were protected by qualified privilege because they were a measured response to the plaintiff’s public letter to the editor and were made to correct the public record.

The court found no evidence of malice and noted the defendants relied in good faith on legal advice before publishing the statement.

The action was dismissed.

The plaintiffs moved to amend their statement of claim to include allegations regarding the defendants' instructions to their counsel in a related proceeding.

The court dismissed the motion, finding the proposed amendments irrelevant and immaterial to the issues pleaded.

The court also addressed the defendants' motion to compel answers to undertakings, finding the plaintiffs liable for the costs reasonably attributable to securing the undertakings.