Jana Steele

In the receivership of the Stateview entities, Tarion Warranty Corporation brought a motion seeking declaratory relief on behalf of purchasers who had paid deposits for pre-construction homes.

Tarion argued that the deposits were subject to an express or constructive trust and sought a remedial constructive trust to elevate the purchasers' priority.

The court dismissed the motion, finding that the purchasers had contractually subordinated their interests to secured lenders.

While an express trust existed for contracts with early termination provisions, the funds were not segregated.

The court declined to impose a remedial constructive trust, as doing so would improperly upset the priority scheme under the Bankruptcy and Insolvency Act.

This motion concerned the priority of new home purchasers' deposits in the bankruptcy of residential real estate developers (Stateview entities).

Tarion Warranty Corporation sought declaratory relief, arguing that the deposits were subject to express or constructive trusts due to unjust enrichment, which would elevate purchasers' claims.

The court dismissed Tarion's motion, finding that purchasers' agreements contained subordination clauses giving priority to secured lenders.

The court also determined that while express trusts existed for some purchasers with early termination provisions, these were not statutory deemed trusts.

Furthermore, there was no unjust enrichment for purchasers without express trusts, as the operation of the Bankruptcy and Insolvency Act constituted a juristic reason.

The court declined to impose a remedial constructive trust, emphasizing the high bar for such remedies in insolvency proceedings and the lack of a close causal connection between the deposits and the real property proceeds.

The Court-Appointed Receiver brought a motion seeking to uphold the disallowance of a claim by Oscar Furtado against Go-To Stoney Creek Elfrida LP and Inc. for guarantee fees.

The Receiver argued the fees were undisclosed, related-party agreements made in breach of Furtado's fiduciary duties and were not reasonable or competitive.

The court found that Furtado, as a fiduciary, failed to provide full disclosure of the lucrative guarantee fee arrangement to investors, as it was not adequately disclosed in the limited partnership agreement, marketing brochure, or the auditor-withdrawn financial statements.

The Receiver's disallowance of the claim was upheld.

Katerinaville Developments Ltd. brought a motion to quash a notice of arbitration issued by Garthwood Homes Ltd. concerning a joint venture agreement.

Katerinaville argued Garthwood lacked standing, the arbitration clause was unconscionable, and arbitration would be unfair and impractical.

The court dismissed the motion, finding Garthwood was a party to the agreement and had standing.

It held that the unconscionability of the arbitration clause was a matter for the arbitrator under the competence-competence principle, and that the arbitration was neither unfair nor impractical, allowing the concurrent oppression action to continue in court.

The Court-appointed Receiver brought a motion to compel the principal of the Receivership Respondents to release approximately 11,271 emails.

The principal opposed the motion, claiming solicitor-client privilege.

The court held that the emails belonged to the corporate entities, not the principal personally, and that the Receiver was authorized under the Receivership Order to investigate the entities' affairs, which included reviewing the emails.

The motion was granted and the principal was ordered to release the emails.

Nobul Technologies Inc. brought a motion for a prospective order to restrain a former director, Michael Cappuccitti, from contravening a non-disparagement provision by communicating with shareholders.

Cappuccitti had sent emails to shareholders attaching his statement of claim in a separate action against Nobul, after Nobul refused to circulate it, despite having circulated its own statement of claim against Cappuccitti.

The court found that Cappuccitti's email was not disparaging, noting it was a cover note to circulate a statement of claim with a clear caveat that allegations were unproven.

The court emphasized shareholders' right to communicate and questioned Nobul's "clean hands" in seeking the injunction.

The motion was dismissed as there was no serious issue to be tried regarding a breach of the non-disparagement clause.

The plaintiff, Michael Cavanagh, brought an action against Enzo Mizzi and others, alleging a verbal "umbrella agreement" under which he was entitled to half of Enzo's shares in two numbered companies holding the "Homewood" properties.

Cavanagh claimed this agreement covered virtually all of Mizzi's real estate projects since 2001.

Mizzi denied the existence of such an agreement, asserting Cavanagh was an employee.

The court found no objective meeting of the minds for the alleged "umbrella agreement" and that its terms were unascertainable.

Despite both parties having credibility issues, the court dismissed the action, finding Cavanagh's claim of a multi-million dollar verbal agreement without documentation to be objectively unsustainable.

The applicant sought specific performance of an alleged agreement to purchase the respondents' shares in a corporation involved in the Thai medical cannabis industry.

The court found that the email correspondence between the parties constituted an agreement in principle, but not a binding contract, as essential terms regarding due diligence and disclosure remained unresolved.

However, the court found that a subsequent rights offering proposed by the respondents, which would have significantly diluted the applicant's minority shareholding at a below-market price, was oppressive.

The application for specific performance was dismissed, but the rights offering was permanently enjoined.

The defendants brought a motion to dismiss the plaintiff's $1.2 billion action for delay under Rule 24.01 of the Rules of Civil Procedure.

The action, alleging fraudulent and negligent misrepresentation regarding a 2007 mining transaction, was commenced in Ontario in 2014 but remained at the pleadings stage.

The court found the delay of over eight years to be inordinate and inexcusable, rejecting the plaintiff's explanations regarding replacement of counsel, the pandemic, and health issues.

The court concluded that the delay caused actual prejudice to the defendants due to faded memories, the death of a key witness, and the potential loss of documentary evidence, thereby risking a fair trial.

The action was dismissed.

The Madan Defendants, subject to a Mareva injunction, brought a motion to vary a prior order to access additional funds for legal expenses from their frozen assets.

They sought to either remove a cap or access an additional $883,682.78.

The court applied the four-part test for varying Mareva injunctions for legal fees, finding the defendants had no other assets and the funds were not subject to a proprietary claim by the plaintiff.

While acknowledging the complexity and unanticipated factors increasing legal fees, the court found some budgeted items moot or premature.

The motion was partially granted, allowing access to an additional $587,433.33, and an enhanced monthly reporting protocol for legal expenditures was imposed.

The appellant corporation appealed an Associate Justice's decision dismissing its motion under Rule 15.01(2) to be represented by a non-lawyer employee.

The Superior Court of Justice applied the palpable and overriding error standard of review.

The court upheld the Associate Justice's application of the Astrochrome test, finding no error in the determination that the proposed representative was not duly authorized by the board of directors and that it would be unfair to allow the representation.

The appeal was dismissed.

The applicants, Toronto District School Board and Simcoe County District School Board, sought leave to appeal an arbitration decision that dismissed their claim for a share of a guarantee fund upon terminating their membership in the Ontario School Boards’ Insurance Exchange (OSBIE).

The court granted leave to appeal, determining that the interpretation of the standard form Reciprocal Insurance Exchange Agreement constituted a question of law, which is subject to correctness review and of precedential value, thus satisfying the criteria for granting leave under the Arbitration Act.

The applicants sought to set aside two international arbitral awards, alleging reasonable apprehension of bias, exceeding jurisdiction, and inadequate reasons by the arbitrator.

The core issue was the arbitrator's failure to disclose a concurrent retainer from the respondents' counsel while the arbitration was ongoing.

The court found a reasonable apprehension of bias, emphasizing the importance of arbitrator impartiality and the specific context of the parties' pre-appointment concerns regarding relationships with counsel.

The awards were set aside, and a new arbitration was ordered.

The applicant, a not-for-profit corporation, brought an application seeking a declaration that a vote held by the respondents to appoint themselves as an interim board was invalid.

The respondents had purported to hold the vote after the applicant's board of directors adjourned the annual general meeting due to disruptions.

The court found the vote was invalid and a nullity, as it was held without authority and contrary to the corporation's by-laws.

The court affirmed the incumbent board's authority and ordered a new annual general meeting to be held within 60 days, providing specific directions on membership eligibility and meeting conduct.

The respondent, Brian Milne, brought a motion for contempt against the applicant, Mo Yi (Jessie) Milne, alleging breach of a parenting order.

He also sought remedies including fines, enrollment in the Family Bridges Program, and police assistance.

Jessie brought a cross-motion to dismiss the contempt motion and request an Office of the Children’s Lawyer (OCL) referral.

The court dismissed the contempt motion, finding the order was not clear enough to establish contempt beyond a reasonable doubt, but found a breach on a balance of probabilities.

The court denied the request for the Family Bridges Program and police enforcement, deeming them inappropriate at this stage.

The OCL referral was also dismissed.

The court ordered a structured, increasing parenting schedule for Brian and the children, along with reunification therapy for Brian and the children, and individual therapy for the children, with costs split 55% by Jessie and 45% by Brian.

The applicant brought a motion to set aside a Russian divorce order obtained by the respondent shortly after their separation.

The parties had immigrated to Canada in 2018.

The respondent filed for divorce in Russia three days after leaving the matrimonial home in Ontario, knowing that Russian law would not require him to pay spousal support.

The court found that the respondent preemptively sought the foreign divorce to circumvent his spousal support obligations under Ontario law.

Applying the public policy exception, the court refused to recognize the Russian divorce order in Ontario.

In an uncontested family law trial, the applicant sought an equalization payment, costs, and a divorce.

The respondent failed to participate, complicating the valuation of his Toronto Transit Commission pension.

After obtaining a court order dispensing with the respondent's signature and authorization from the Financial Services Regulatory Authority, the pension was valued.

The court ordered the respondent to pay an equalization payment of $55,525.30 and costs of $7,500, to be satisfied entirely through a transfer from his pension pursuant to the Family Law Act and Pension Benefits Act.

The applicant father commenced family law proceedings but failed to take any steps to move the matter forward.

The respondent mother was granted leave to proceed by way of an uncontested trial.

The court granted the mother sole decision-making responsibility, primary residence, and the ability to travel without the father's consent.

The father was ordered to pay ongoing child support, arrears for section 7 expenses, and a proportionate share of prospective section 7 expenses.

A divorce was also granted.

The respondent challenged the Ontario Superior Court's jurisdiction to make 2013 temporary child and spousal support orders, arguing neither party was ordinarily resident in Ontario for a year prior to the application.

The court agreed it lacked jurisdiction under the Divorce Act but found it had jurisdiction under the provincial Family Law Act.

The court upheld the validity of the 2013 orders and refused to order a retroactive refund.

However, because the parties obtained a valid divorce in Scotland in 2019, the court terminated the respondent's ongoing spousal support obligation prospectively.

On a family law motion between former common-law partners, the court considered a request for an advance on interim legal fees and for interim spousal support.

The moving party established a prima facie case that she qualified as a spouse under the Family Law Act and had non-compensatory entitlement to support on a needs basis, despite a live dispute about the duration of cohabitation.

Applying the Family Law Rules, the Family Law Act, and the Spousal Support Advisory Guidelines, the court ordered $20,000 as an advance for legal fees and disbursements and interim spousal support of $3,900 per month.

The request for retroactive support was deferred to trial because unresolved factual issues could significantly affect duration and quantum.