Jeramie James Arthur Gallichan

This addendum to reasons on undertakings and refusals motions addresses Delta Plus Group's claim of litigation privilege over Refusal No. 10, which arose during the examination for discovery.

The court found that Delta failed to provide firsthand evidence from the document's creator to establish that the document was created for the dominant purpose of litigation, as required for litigation privilege.

Consequently, the court ordered Delta to answer the question.

The moving parties brought a motion for leave to appeal the order of Braid J. dated June 16, 2023.

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

The moving party sought leave to appeal the order of Valente J. dated April 19, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay the responding party $5,000 in costs.

In a complex commercial dispute stemming from a Share Purchase Agreement and consulting agreements, both the plaintiffs (the Dentes and related entities) and the defendants (Delta Plus Group and its subsidiaries) brought motions to compel answers to undertakings and refusals arising from examinations for discovery.

The court addressed various issues including the relevance of financial information, the accessibility of manual journal entries, the sufficiency of particulars for damage claims, and the assertion of litigation privilege.

The court ordered some productions and dismissed others, emphasizing the principles of relevance and proportionality in discovery.

Given the mixed results, the court also ordered that each party bear their own costs and allowed for further limited examinations for discovery.

The plaintiffs brought a motion seeking a declaration that certain communications with their lawyers, which were inadvertently left on the defendants' email servers after a share purchase transaction, were subject to solicitor-client privilege.

The plaintiffs also sought leave to file a supplementary affidavit after cross-examinations.

The court granted leave to file the new affidavit.

On the privilege motion, the court found that the plaintiffs' law firm did not represent the target companies during the transaction, meaning no joint privilege passed to the purchaser.

The court also held that the plaintiffs did not waive privilege by using the company email servers, as the disclosure was inadvertent and they maintained a reasonable expectation of privacy.

The court reviewed the documents and declared which ones were privileged.

This construction lien reference involved a summary trial of an issue concerning the timeliness and bona fide nature of Honeywell Limited's claim for lien against Bondfield Construction Company Limited.

The Lien Vetting Committee, comprising Ozz Electric Inc., Urban Mechanical Contracting Ltd., and Zurich Insurance Company Ltd., argued that Honeywell's lien had expired.

The court found that Honeywell failed to prove its claimed last date of supply, as the evidence provided was deficient and contradictory.

The court also addressed the application of the rule in Browne v. Dunn, concluding it was not engaged because the contradictions were within the witness's own affidavit.

Furthermore, the court commented that even if the last date of supply had been proven, the supply after receiving notice of Bondfield's financial issues would not have been bona fide.

Consequently, Honeywell's lien was ruled to have expired and was ordered vacated.

The moving defendants brought a motion under Rule 21 to strike various claims in the statement of claim, including all claims by Unit Precast, the conspiracy claim against all moving defendants, and all claims against Lars Bergmann.

Additionally, Click + Clean sought to stay the action against it based on an arbitration clause.

The court struck all claims by Unit Precast without leave to amend, and struck RH20's conspiracy claim and claims against Lars Bergmann with leave to amend.

The motion to stay the action against Click + Clean was dismissed, as conflicting forum selection clauses rendered the arbitration agreement inoperative, and the defendants' act of bringing a motion to strike constituted attornment to the court's jurisdiction.

North Bay Capital Investments Ltd. (North Bay) brought a motion to discharge a construction lien filed by XPL Construction Solutions Inc. (XPL) and to dismiss the action against it, with Verg Construction Corp. and Anthony Vergalito supporting the motion.

North Bay later abandoned the dismissal request.

The court found significant credibility issues and competing narratives regarding the scope of work and invoicing practices between XPL and Verg.

The judge dismissed North Bay's motion to discharge the lien, concluding that there were triable issues and that XPL's claim was not frivolous, vexatious, or an abuse of process.

However, the court exercised its discretion to reduce the lien amount from $872,617.26 to $699,535.02 due to certain improperly included expenses and exaggerated time claims, without prejudice to XPL pursuing the full amount at trial.

The Court of Appeal for Ontario heard an appeal and cross-appeal concerning damages for conversion of a "book of business" in the transportation insurance industry.

The trial judge had found conversion of one book (TRIP book) but not another (Kimberly book), and did not fully address other causes of action like breach of contract, breach of confidence, and fiduciary duty.

The Court of Appeal found that the trial judge's conversion analysis was flawed, particularly regarding the nature of intangible property and the sufficiency of findings.

It also held that the trial judge erred by not separately addressing the other pleaded causes of action.

Consequently, the Court allowed both the appeal and cross-appeal, set aside the trial decision, and ordered a new trial on all causes of action.

The applicant trustee brought a motion for a final passing of accounts, approval of trustee compensation, approval of legal fees, and costs of prior related motions.

One of the respondent beneficiaries objected to the trustee's compensation and legal fees, and argued that the estate should bear the costs of the prior litigation.

The court approved the trustee's compensation and legal accounts, finding them reasonable given the complex and contentious nature of the estate administration.

The court ordered the objecting beneficiary to personally pay the costs of a doomed capital repairs motion and 80% of the original passing of accounts motion, but ordered the estate to bear the costs of a will interpretation motion as it raised a public policy issue regarding ambiguities in the will.

Zurich, the surety for the insolvent general contractor Bondfield, brought a motion to intervene as a party in a construction lien reference.

Zurich sought to participate in a vetting committee for the distribution of the owner's holdback among the timely lien claimants.

The court granted the motion, finding that Zurich had a direct interest in the holdback because it had made significant holdback advances to the major electrical and mechanical trades and had taken partial assignments of their lien rights.

The court ordered the timely claimants to pay Zurich's costs of $30,000.

The defendants brought a motion to strike portions of the plaintiff's Statement of Claim, arguing the allegations were scandalous, frivolous, or vexatious.

The impugned pleadings detailed the plaintiff's long-standing relationship with the directing mind of the defendant corporations, including allegations of a cult-like following, unpaid labour, and promises of an ownership interest.

The court dismissed the motion, finding the allegations were relevant to the plaintiff's claims for an oppression remedy and constructive dismissal, and that the plaintiff was entitled to have his claim tested on the merits.

This appeal concerned the interpretation of a will regarding the disposition of a cottage property and its sale proceeds.

The estate trustee sought directions on how to distribute the proceeds among the testator's grandchildren.

The motion judge ruled for equal distribution among the four surviving grandchildren.

The appellant, a grandchild, appealed, seeking a larger share based on a different interpretation of the will's clauses.

The respondents cross-appealed on the motion judge's reasoning, not the outcome.

The Court of Appeal dismissed both the appeal and the cross-appeal, affirming the motion judge's decision that the proceeds should be distributed equally among the four grandchildren alive at the end of the life interests, based on the testator's intention as determined through the "armchair rule."

This costs endorsement follows a motion brought by House concerning the distribution of insurance proceeds, the application of the equitable doctrine of marshalling, and the garnishment of settlement funds.

The court had previously dismissed House's request for marshalling, ordered pro rata distribution of State Farm funds, and allowed House to garnish 20% of Baird's settlement.

Baird was deemed more successful than House on the garnishment issue and was entitled to costs.

The court awarded Baird $20,000 in partial indemnity costs, inclusive of HST and disbursements, but excluded costs for an affiant who did not act as counsel or make submissions.

This decision addresses the costs arising from a dismissed interlocutory injunction application.

The defendants, who successfully resisted the injunction, sought substantial indemnity costs, citing the plaintiff's alleged misconduct and the impact on their livelihoods.

The plaintiff argued for partial indemnity or costs in the cause, and sought discounts.

The court determined that costs should be fixed and paid forthwith on a partial indemnity basis, applying a 10% reduction for work that would benefit the overall litigation.

Substantial indemnity was denied as the plaintiff had a serious issue to be tried and the alleged misconduct did not meet the threshold for elevated costs.

The plaintiff, Pioneering Technology Corp. (PTC), sought an interlocutory injunction against former employees and a contractor (Laird Comber, Wayne Zu, and Steph Cooper) to prevent them from using confidential information and developing a competing business venture.

PTC alleged breach of contract, fiduciary duty, conspiracy, and breach of confidence, stemming from the defendants' undisclosed plans to collaborate with a Chinese supplier (Donghai) to distribute a product (2BGT) in North America, potentially involving PTC.

The court applied the three-part test for interlocutory injunctions from *RJR MacDonald v. Canada*.

While a serious issue to be tried was found regarding fiduciary duties and corporate opportunity, the court determined that PTC failed to demonstrate irreparable harm, as any potential damages from a competing venture could be quantified, and there was no evidence of imminent harm or disclosure of confidential information.

The balance of convenience also did not favour granting the injunction, given the preliminary stage of the defendants' plans and Donghai's prior decision not to contract with PTC for the 2BGT.

The motion for an interlocutory injunction was dismissed.

This costs endorsement addresses the allocation of legal costs following an unsuccessful motion brought by John Gordon Ross to amend the passing of accounts for the Estate of Sarah McMahon Grafton.

The Canada Trust Company, as executor, and three other respondents (Stewart, James Grafton, and James Henry Ross) sought costs against John Gordon Ross due to his non-compliance with prior court orders and the lack of merit in his motion.

The court awarded substantial indemnity costs to Canada Trust ($30,460.68) and partial indemnity costs to the other three respondents ($10,480), both payable personally by John Gordon Ross.

The decision emphasized that John Gordon Ross lacked standing and his claim was time-barred, and his conduct warranted the costs awards.

This motion concerned the distribution of insurance funds and the right to garnish a settlement following a motor vehicle accident.

The applicant, Tyler House, sought directions on the interpretation of the Insurance Act regarding priorities and entitlement to insurance monies, a declaration applying the equitable doctrine of marshalling to prioritize his claim, and confirmation of his right to garnish Donald Baird's settlement funds.

The court found that the doctrine of marshalling was not applicable, affirming the pro rata distribution of first-loss insurance funds under section 277 of the Insurance Act.

The court also interpreted ambiguities in Baird's settlement and determined that 20% of Baird's settlement funds, specifically from the income loss portion, were subject to garnishment, applying principles from the Wages Act.

John Gordon Ross brought a motion seeking to amend a prior Judgment on Passing of Accounts to reflect a liability to Margaret's estate for capital expenditures made on a cottage property.

The court found that Margaret's estate's claim for reimbursement was barred by the Limitations Act, 2002, as Margaret had knowledge of the claim more than two years before her death.

The court distinguished between a beneficiary's objection to accounts (not a "claim" under the Limitations Act) and a motion seeking to establish a liability from the estate to an alleged creditor (which is a "claim" subject to the Act).

The motion was dismissed.

An appeal and cross-appeal from a wrongful dismissal judgment.

The trial judge found the appellant, an institutional equity salesperson, was constructively dismissed and awarded 11 months' pay in lieu of notice totalling $240,313.79 (net $137,055.54), including base salary, performance bonus, and shareholders' bonus.

The appellant appealed the calculation of her performance bonus; the respondent cross-appealed on mitigation, notice period, shareholders' bonus entitlement, and costs.

The Court of Appeal dismissed the appeal but allowed the cross-appeal in part, finding the appellant was not entitled to shareholders' bonus damages as her shares were redeemed upon termination of employment.

The net damages award was reduced to $57,262.96, and costs were remitted to the trial judge for recalculation.