Jason M. Squire

The appellant, Halton Condominium Corporation No. 137, appealed an order setting aside an arbitration award concerning Mensula Bancorp Inc.'s access to parking units through the condominium's common elements.

The arbitrator had interpreted the condominium declaration to limit Mensula's access, but the application judge set aside the award, finding the arbitrator exceeded jurisdiction by effectively amending the declaration.

The Court of Appeal allowed the appeal and restored the arbitrator's award.

The Court held that the application judge erred by reviewing the substance of the arbitrator's interpretation under the guise of jurisdictional error, contrary to the narrow scope of review under the Arbitration Act, 1991.

The plaintiffs, James Dick Construction Limited and Mara Limestone Aggregates Ltd., brought an action for damages arising from a fire loss involving two leased buildings.

The defendants, Courtice Auto Wreckers Limited et al., argued the claim was barred by the plaintiffs' covenant to insure.

The court found that the landlord's covenant to maintain general property insurance sufficient to cover replacement costs allocated the risk of loss, including fire, to the landlord, thereby barring the action against the tenants.

The court also found that the defendants did not breach the lease regarding sprinkler system maintenance and that their actions did not cause the damage.

Had damages been awarded, they would have been based on diminution in value, and private insurance proceeds would not have been deductible.

The applicant, Don Bernier, brought an oppression application under the Ontario Business Corporations Act, asserting he was a beneficial and equitable shareholder of Skilcor Food Products Inc. and La Riberie Inc. at the time of their 2017 sales, and was denied his shareholder entitlement.

The respondents denied his shareholder status.

The court found that while an oral agreement for a 9% interest in a "Consolidated group" (Skilcor food assets, La Riberie, and Northbud) existed prior to 2010, this agreement was mutually rescinded by the parties' subsequent conduct, specifically the sale and winding-up of Northbud in 2013.

This rendered the original agreement inoperative as Bernier no longer had the equity contribution (Northbud shares) upon which his interest was based.

The court concluded Bernier was not a shareholder of Skilcor or La Riberie at the time of the sales and therefore lacked standing to bring an oppression claim.

The application was dismissed.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

The Bank of Montreal applied for a receiver over a group of fitness clubs (the Crunch Group) following defaults on credit facilities.

The parties reached an agreement where the debtors' nominee would purchase the debt and security.

The Bank accepted the offer but subsequently refused to provide a fully executed copy of the agreement, causing the purchaser to lose financing and fail to close on the scheduled date.

The court found the Bank's actions, including abruptly closing the debtors' bank accounts and unreasonably refusing to deliver the executed agreement, breached the duty of good faith.

The court ordered the Bank to close the transaction.

The applicant brought a motion to enforce personal guarantees executed by the respondents, a husband and wife who were directors of the debtor corporation.

The husband did not oppose the motion.

The wife argued she was released from her guarantee due to an undisclosed material change in the principal amount of the indebtedness, lack of independent legal advice, and that the applicant had released her through its conduct during restructuring negotiations.

The court found that the guarantee explicitly allowed for changes in the amount of obligations, the wife was a sophisticated business owner who did not require independent legal advice, and the applicant had not provided an express written waiver as required by the guarantee.

The motion was granted and both respondents were found liable.

The applicant sought to set aside part of an arbitration award concerning a parking unit owner's access to condominium common elements.

The court held that, although the access dispute was properly before the arbitrator, the arbitrator went beyond contractual interpretation and effectively corrected or amended errors and inconsistencies in the declaration.

Because amendments or corrections to a condominium declaration fall within the Superior Court's jurisdiction under s. 109 of the Condominium Act, the arbitrator decided a matter outside the scope of the arbitration agreement for the purposes of s. 46(1)3 of the Arbitration Act.

The access-related portion of the award was set aside and costs were awarded to the applicant.

The defendants brought a motion for leave to appeal the order of Dietrich J. dated December 19, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

The defendants brought a motion for a mandatory interim injunction to enforce indemnity agreements and require the plaintiffs to advance funding for their legal expenses.

The court found that the Cytrynbaum jurisprudence did not apply because the motion sought a mandatory injunction against an individual and a corporation, rather than a final determination under the CBCA.

The court dismissed the motion, holding that the defendants failed to establish a strong prima facie case due to concerns about conflicts of interest and lack of independent legal advice in the drafting of the indemnity agreements.

The court also found no irreparable harm, as any harm could be quantified in monetary terms.

Following a successful appeal, the appellants sought costs of the proceedings in the Superior Court on a partial indemnity basis.

The respondents contested a disbursement for the appellants' expert witness on damages, arguing the expert's evidence was rejected by the application judge as a mere mathematical exercise.

The Court of Appeal agreed with the respondents, finding that disallowing the disbursement did not amount to an improper distributive costs order, and that the expert evidence provided no value as it consisted only of basic calculations using publicly available share prices.

Costs were awarded to the appellants excluding the expert disbursement.

The appellants appealed the dismissal of their application for damages arising from the respondent's refusal to honour the exercise of stock options.

The options were granted under a consulting agreement with a two-year term but specified a five-year exercise period.

The respondent argued the options expired six months after the consulting agreement ended, relying on an incorporated stock option plan.

The Court of Appeal allowed the appeal, finding the application judge erred in contractual interpretation.

The specific five-year exercise period in the grant took priority over the general termination provision in the incorporated plan.

Damages were awarded to the appellants in the amount of $2,820,000.

The defendants brought a motion for summary judgment to enforce a settlement agreement that purportedly resolved the plaintiffs' oppression claims arising from a corporate restructuring.

The plaintiffs opposed the motion, arguing the agreement was unconscionable and induced by misrepresentations regarding the inclusion of a critical patent licence.

The court dismissed the motion, finding that the factual matrix was complex, credibility issues were prominent, and it was premature to grant summary judgment or partial summary judgment before examinations for discovery had been completed.

The plaintiff, Hoodex Industries Limited, brought a motion for leave to amend its amended statement of claim and for an order to have its action tried together with another related action (CV-18-605074).

The motion was largely on consent, except for the defendants Innova Toronto Inc. and Tahsin Bondokji (the "Innova defendants") who opposed both requests.

The court granted leave to amend the statement of claim, finding that the proposed amendments disclosed reasonable causes of action against the Innova defendants, including misappropriation of confidential information, intentional interference with economic relations, conversion, and conspiracy.

The court also ordered the two actions to be tried together, citing common questions of fact, significant overlap of evidence, and the risk of inconsistent findings if tried separately, in line with the principles of avoiding multiplicity of proceedings and ensuring expeditious and least expensive determination of civil proceedings.

Costs were awarded to Hoodex.

The applicant, a former CEO of Aphria Inc., sought damages for the company's refusal to honor his stock options and, in the alternative, relief from forfeiture.

The court found that the stock options had expired according to the terms of the Aphria Incentive Stock Option Plan, which was incorporated by reference into the applicant's agreements.

Furthermore, the applicant was found to have breached a non-competition agreement by leasing land to a medical marijuana producer during the restricted term.

Consequently, the court dismissed the application, denying both the claim for damages and the request for equitable relief from forfeiture due to the applicant's breach of the non-competition agreement.

The applicant sought judicial review of a decision by the Horse Racing Appeal Panel, which had overturned the applicant's decision to waive a horse's disqualification following a positive drug test.

The applicant argued the standard of review was correctness as it involved a true question of jurisdiction.

The Divisional Court held the standard of review was reasonableness, as the Panel was interpreting its home statute.

The Court found the Panel's conclusion that it had jurisdiction to hear the appeal was reasonable and dismissed the application for judicial review.

The plaintiff, FSA Science and Art Ltd., moved for summary judgment to dismiss the counterclaim of the defendant 1004964 Ontario Inc. The defendants, 1004964 Ontario Inc. and Edward Slapsys, brought a cross-motion for costs of the plaintiff's discontinued action.

The court dismissed the counterclaim, finding no genuine issue for trial, as the invoice for assistance services was effectively a penalty and the plaintiff had not received the agreed-upon 20 hours of free assistance.

For the costs motion, the court found the defendants were entitled to partial indemnity costs for the discontinued action, but reduced the requested amount by 50% due to excessive claims and some duplication of effort.

No costs were awarded for the motions themselves due to divided success.

The Applicants, ICP and JCP, each sought the appointment of an arbitrator under the Arbitrations Act, 1991, for disputes arising from a share offer and acceptance.

The court addressed whether the arbitrations should be consolidated, the appropriate size of the arbitration panel (single vs. three arbitrators), and the composition of the panel, including issues of res judicata regarding a prior ruling on panel size and reasonable apprehension of bias concerning a nominated arbitrator.

The court determined that separate arbitrations were required for QSA and PSA disputes, that a three-member panel was intended by the QSA, and appointed Mr. Ferrier and Mr. Scott to the QSA panel, rejecting Mr. Cunningham due to apprehension of bias.

The appellants appealed a motion judge's order dismissing their motion for summary judgment and granting the respondent leave to amend its statement of claim.

The respondent sought to amend its claim to seek only a declaration of share ownership to avoid the expiry of the limitation period under s. 16(1)(a) of the Limitations Act, 2002.

The Divisional Court allowed the appeal, finding that the declaratory relief sought was an attempt to circumvent the limitation period and would require consequential relief to be effective.

The action was dismissed as statute-barred.

The defendants sought leave to appeal an order dismissing their motion for summary judgment and permitting the plaintiff to amend its statement of claim to seek only declaratory relief regarding a 5% share ownership.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order because the declaratory relief sought was arguably ancillary to statute-barred consequential relief.

The court also found the parameters of section 16(1)(a) of the Limitations Act to be a matter of general importance warranting appellate review.

The plaintiff, New York Stock Exchange, LLC (NYSE), brought a motion to compel discovery answers and production, while the defendants moved to strike NYSE's notice of examination for a corporate representative and substitute another.

The court dismissed the defendants' motion, affirming NYSE's prima facie right to choose its deponent, Olga Sementchoukova, given her knowledge of the financial transactions at issue.

The court largely granted NYSE's motion to compel, finding that the defendants had waived solicitor-client privilege by pleading reliance on legal advice from Stikeman Elliot LLP to rebut allegations of fraudulent conveyance and bad faith.

The court ordered production of related legal advice documents and answers to several financial discovery questions, while dismissing others.