Jason M. Squire

The plaintiff brought a motion to compel the production of documents over which the defendants claimed common interest privilege, a joint defence tolling agreement, and answers to refusals.

The court found that the defendants failed to establish the underlying solicitor-client privilege necessary for common interest privilege, as the communications were shared with third parties and there was no evidence they entailed seeking or providing legal advice.

The court also ordered the production of the joint defence tolling agreement, finding it altered the litigation landscape.

The plaintiff's motion was granted.

The applicant, a professional hockey player, sought to set aside an arbitral award that dismissed his claims against his former agent as time-barred under a six-month limitation period in the NHLPA Regulations.

The applicant argued the arbitrator lacked jurisdiction because the claims arose after his Standard Player-Agent Contract expired, and that the limitation period was invalid or unfairly applied.

The Superior Court dismissed the application, finding that the arbitrator correctly determined he had jurisdiction because the NHLPA Regulations govern all player-agent relations, even after a specific contract expires.

The court also upheld the arbitrator's findings that the limitation period was lawful and that the applicant was treated fairly.

On a CCAA motion, the moving parties sought approval of a reverse vesting transaction and ancillary relief following a court-approved SISP with a stalking horse credit bid.

The court applied the s. 36(3) criteria and found the process was transparent, adequately marketed, monitor-supervised, and fair and reasonable in the circumstances.

The court accepted the monitor’s evidence that a going-concern outcome would produce materially better stakeholder outcomes than liquidation and would preserve enterprise value while reducing restructuring costs.

Applying the Harte Gold framework, the court held the reverse vesting structure was necessary, economically superior to viable alternatives, non-prejudicial to stakeholders relative to alternatives, and reflective of fair value for preserved intangibles.

The motion was granted and both the Reverse Vesting Order and Ancillary Order were approved.

This costs endorsement follows the dismissal of an appeal by the Defendants, David Wu and Opus Fitness Investment Inc., against a decision of Associate Justice Perron.

The Defendants argued that the Plaintiff, Ottawa Credit Exchange Limited, increased costs by raising a new argument on appeal.

The Court disagreed, finding the Plaintiff’s argument was responsive and that the Defendants themselves increased costs by raising an unfounded jurisdictional argument.

The Court awarded costs to the Plaintiff in the amount of $4,881.60, inclusive of HST.

The decision concerns a dispute over the return of a deposit following the termination of an agreement of purchase and sale (APS) for a property, in the context of a receivership and subsequent refinancing.

The court orders the return of the deposit to 2557905 Ontario Inc., with interest only from the date the deposit was placed in an interest-bearing account, and denies the listing broker's request for costs from the deposit.

The court rendered a costs endorsement following the dismissal of the defendant employer's motion to strike paragraphs seeking punitive damages from the plaintiff employee's Amended Statement of Claim.

The plaintiff was awarded partial indemnity costs in the amount of $13,592, payable within 15 days.

The court rejected the plaintiff's request for substantial indemnity costs, finding that counsel communications about the motion's merits did not constitute reprehensible conduct warranting such an award.

Ottawa Credit Exchange Limited (OCEL) brought a motion seeking the production of four categories of documents from the defendants, David Wu and Opus Fitness Investment Inc., related to a commercial dispute involving a management buyout and reorganization.

The defendants argued that the requested documents were not and had not been in their possession, control, or power.

The court dismissed OCEL's motion, finding that the defendants had no possession, control, or power over the documents sought, including emails from a personal account already searched, BBM messages from a company-owned device returned before litigation, and privileged communications with corporate counsel.

The appellant, 2557904 Ontario Inc. (the stalking horse bidder), appealed a motion judge's order that dismissed the receiver's motion for an approval and vesting order (AVO) and instead approved the debtor's (1000093910 Ontario Inc.) motion to redeem a first mortgage.

The Court of Appeal found the motion judge erred by not ensuring 255 received compensation for costs thrown away and by granting provisional enforcement of the order after an appeal notice was filed.

The appeal was allowed in part, varying the order to require the debtor to pay $300,000 in compensation to 255 and setting aside the provisional execution.

The court also ordered that if the refinancing transaction does not close, the AVO for 255 will be granted.

The defendant employer brought a motion to strike certain paragraphs from the plaintiff's Amended Statement of Claim, which sought punitive damages based on the defendant's counterclaim for misappropriation of confidential information being a bullying tactic.

The defendant argued these pleadings disclosed no cause of action and were frivolous, vexatious, and an abuse of process under Rules 21.01 and 25.11.

The court dismissed the motion, finding it was not plain and obvious that the claim for punitive/exemplary damages would fail.

The judge emphasized that the unique principles of employment relationships, including the inherent power imbalance, allow for such claims, and that the issue should be decided at trial on a full evidentiary record, not at the pleadings stage.

The Court of Appeal heard motions in an appeal concerning the receivership of a debtor's property.

The appellant, a successful bidder, appealed two lower court orders that terminated its Stalking Horse Agreement and approved the debtor's refinancing transaction.

The motion judge referred several issues to a panel, including the appellant's standing and right to appeal, and whether the lower court erred in terminating the agreement and granting provisional enforcement.

The Court of Appeal continued the stay of provisional execution of the lower court orders, emphasizing the importance of maintaining the integrity of court-approved sale processes, especially given the absence of reasons from the motion judge for his initial decision.

This appeal concerned the interpretation of an agreement of purchase and sale with an ambiguity regarding the calculation of the purchase price, which included Harmonized Sales Tax (HST).

The appellant vendor sought payment of remaining escrow funds.

The Court of Appeal found that the application judge erred by failing to properly interpret the agreement according to the principles of contractual interpretation and by relying on inadmissible expert appraisal evidence.

The appeal was allowed, the lower court's judgment and costs order were set aside, and the matter was remitted for a new hearing before a different judge.

The cross-appeal was not addressed.

The Ontario Securities Commission (OSC), a judgment creditor of Vadim Tsatskin, brought a motion for leave to issue a certificate of pending litigation (CPL) against a property solely owned by Tsatskin's spouse, Irene Bromberg.

The OSC alleged that Bromberg held a beneficial interest in the property in trust for Tsatskin, who had orchestrated a scheme to hide assets and avoid payment of a $5.3 million debt from fraudulent investment schemes.

Bromberg opposed, citing clean hands, delay, and prejudice.

The court granted the CPL, finding a triable issue for a resulting or constructive trust and that the equities favored the OSC, given the significant dissipation risk posed by Tsatskin's fraudulent history and the lack of substantiated prejudice from Bromberg.

This appeal concerned the interpretation of a commercial lease, specifically the allocation of risk for fire damage.

The landlord, James Dick Construction Limited (JDC), sued its tenant, Courtice Auto Wreckers Limited (CAW), for damages after a fire destroyed one leased building and damaged another.

JDC alleged CAW breached the lease by failing to maintain the sprinkler system.

The trial judge dismissed the action, finding that the landlord's covenant to insure the buildings allocated the risk of fire loss to the landlord, even if the tenant was responsible for sprinkler system repair expenses.

The Court of Appeal upheld the trial judge's decision, affirming that while a covenant to insure generally implies risk allocation to the covenantor, this is not an absolute rule and requires a holistic interpretation of the entire contract and surrounding circumstances.

The Court found no extricable error of law or palpable and overriding error in the trial judge's application of the law.

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

The defendant Bank of Nova Scotia and third party Julie Leblanc brought a motion to strike the plaintiff's statement of claim and third party claim for disclosing no cause of action, being frivolous, vexatious, or an abuse of process under Rules 21.01(b), 21.01(3)(b), and 25.11.

The court granted the motion, finding the claim to be a collateral attack on an earlier court order regarding the limitations period and time-barred independently.

The plaintiff's claims, including those related to the bank's alleged failure to revoke a power of attorney, investigate fraud, or breach fiduciary duties, were found to be based on events discovered more than two years before the action was commenced.

The court struck the claims without leave to amend and awarded substantial indemnity costs to the Bank of Nova Scotia.

The appellant appealed the dismissal of his oppression application, where the application judge found he was not a beneficial shareholder of the respondent corporations.

The application judge had concluded that an earlier agreement granting the appellant a 9% interest was mutually rescinded when a portion of the corporate group was sold.

The Divisional Court allowed the appeal, finding it procedurally unfair to decide the case on the unpleaded and unargued theory of mutual rescission.

Furthermore, the court found no factual or legal basis for mutual rescission, concluding the appellant remained a 9% beneficial shareholder entitled to his share of the sale proceeds.

The plaintiffs, representing a class of small to medium-sized businesses, sought coverage under their business interruption insurance policies for losses sustained due to the COVID-19 pandemic and related civil authority orders.

The court held a common issues trial to determine whether the presence of the SARS-CoV-2 virus or government lockdown orders could cause 'physical loss or damage to property' within the meaning of the policies.

The court concluded that the virus does not physically alter or damage inanimate surfaces, and that the loss of use of the premises due to government orders does not constitute physical loss or damage.

Consequently, the court answered the certified common issues in the negative, finding no coverage under the business interruption provisions.

This case involved two consolidated applications concerning a dispute over the allocation of Harmonized Sales Tax (HST) on the sale of a mixed-use property.

The Vendor (Miculinic Investment Corporation) sought the release of escrow funds withheld by the Purchaser (1000029174 Ontario Inc. and 2303515 Ontario Inc.), who had objected to the Vendor's HST allocation and sought a judicial declaration on the residential portion's value.

The court found that it was not its role to determine the HST amount, as the Canada Revenue Agency (CRA) had already made an assessment.

The court granted the Vendor's application for the release of escrow funds, finding the Purchaser's allocation not unreasonable but upholding the Vendor's right to the funds based on the CRA's assessment and the terms of the Agreement of Purchase and Sale.

The Purchaser's cross-application was dismissed.

This is a costs endorsement following an appeal decision where the Court of Appeal allowed the appeal, restored an arbitrator's award, and awarded costs of the appeal to the appellant.

The court set aside the application judge's original costs order and awarded costs of the proceedings before the application judge to the appellant, Halton Condominium Corporation No. 137, in the sum of $8,083.33, inclusive of disbursements and applicable taxes.

The appellants appealed the dismissal of their action for summary judgment, which the motion judge found to be a nullity because it was commenced by an undischarged bankrupt and was statute-barred.

The Court of Appeal upheld the motion judge's decision, confirming that the action was a nullity as the bankrupt lacked capacity to sue and the claim was time-barred.

The court also rejected arguments regarding the postponement of the limitation period and apprehension of bias, noting the appellant's counsel had waived any conflict.