John Carlo Mastrangelo

The plaintiffs, Avante Automobile (2017) Corporation and Francesco Serpa, sought damages from BMW Canada Inc. for breach of statutory, contractual, and common law duties in relation to the purchase and operation of a BMW dealership.

The court found BMW Canada liable for failing to properly document an extension to complete required renovations and for not following the termination provisions of the Retailer Agreement.

However, the court preferred the defendant’s evidence on valuation and found no net recoverable damages.

The action was dismissed, subject to costs.

This costs endorsement follows the dismissal of appeals by the Attorney General of Ontario, His Majesty the King in Right of Ontario, the Town of South Bruce Peninsula, Alberta Lemon, and the Estate of Barbara Twining, and the allowance of the cross-appeal by the Attorney General of Canada and His Majesty the King in Right of Canada.

The Court orders the Town and the Families to pay costs to the Chippewas of Saugeen First Nation and the Town to pay costs to Canada, finding the amounts sought reasonable in light of the complexity and significance of the appeal.

The City of Ottawa appealed a remittal decision that found various provisions of a 1981 Agreement and related contracts governing golf course lands to be inoperative.

The Court of Appeal had previously struck down conveyancing provisions in the agreement for violating the rule against perpetuities.

The application judge held that without these provisions, the remaining obligations to operate a golf course in perpetuity fundamentally altered the parties' original bargain and were therefore inoperative.

The Court of Appeal dismissed the appeal, agreeing that the removal of the conveyancing provisions frustrated the balance of the agreement, rendering all provisions relating to the golf course lands void.

The appellants appealed a trial judgment declaring that approximately 1.4 miles of coastline (the Disputed Beach) forms part of the Saugeen Indian Reserve No. 29 under Treaty 72 of 1854.

The trial judge found that the Crown breached its fiduciary duty and acted dishonourably when a surveyor improperly excluded the beach from the reserve boundaries.

The Court of Appeal dismissed the appeals, finding no errors in the trial judge's application of treaty interpretation principles or her assessment of the historical record.

The Court also upheld the trial judge's decision to deny the bona fide purchaser for value defence to private landowners, prioritizing the First Nation's constitutionally protected treaty rights.

A cross-appeal by Canada regarding the allocation of pre-Confederation liability was allowed and referred to the next phase of the trial.

This motion, brought by the Van Essen Companies and Wouter Van Essen, sought to strike evidence, grant judgment, and stay proceedings in a receivership, alleging unauthorized access to their privileged records by the court-appointed Receiver (FTI Consulting Inc.) and the appointing creditor (MBL Administrative Agent II LLC).

The court dismissed the motion, finding that the Van Essen Companies failed to establish that the records were intended to be confidential, as Wouter Van Essen knowingly used a Techlantic email account (a third-party entity he considered arm's length) for business and personal communications, including those with legal counsel, and shared emails with Techlantic's senior officer.

The court concluded that the prerequisite for privilege (confidentiality) was not met, and even if it were, privilege was waived by the knowing use of a third-party server and delayed notification to the Receiver.

The Chippewas of Saugeen First Nation, having been entirely successful in the liability phase of a bifurcated proceeding concerning the status of the "Disputed Beach" as reserve land, sought costs.

This endorsement addresses the costs awards and apportionment among the multiple defendants.

The court awarded Saugeen their costs on a partial indemnity scale, totaling $3,221,802.54, on a joint and several liability basis.

These costs were apportioned for indemnification purposes among Canada (10%), Ontario (40%), and the Town of South Bruce Peninsula (50%).

Additionally, the court granted Canada a Sanderson order, requiring the Town to pay Canada $470,000 in partial indemnity costs, recognizing Canada's success on the essential issue of the reserve boundary location.

The Town's claim for costs against Canada was dismissed.

The plaintiff sought a contempt order against the defendant May Anis and her company BNP Advisors Inc. for giving false evidence and breaching court orders.

The court found May Anis in contempt on two of four issues: failing to disclose her ownership interest in a Nova Scotia property and providing falsified tax returns.

The court deferred the decision on the appropriate penalty, including striking the statement of defence and imprisonment, to a subsequent hearing.

The appellants appealed an arbitrator's costs award under section 45 of the Arbitration Act, 1991.

The arbitrator had awarded the respondent its full legal expenses, including fees paid to its corporate counsel for 'litigation support'.

The court first determined that leave to appeal an arbitral costs award is not required under section 133(b) of the Courts of Justice Act, as that provision applies only to courts.

On the merits, the court found that the arbitrator did not err in principle or act plainly wrong in awarding full indemnity costs, noting that the Arbitration Act does not bind arbitrators to the scales of costs in the Rules of Civil Procedure.

The court also upheld the arbitrator's decision to allow recovery of the litigation support fees.

The appeal was dismissed.

This decision addresses the impact of a Court of Appeal ruling that declared certain contingent property interests in a 1981 development agreement void for perpetuities.

The Superior Court was remitted to determine which other provisions of the 1981 Agreement and related contracts were affected and rendered inoperative.

The court found that the voided sections fundamentally altered the original bargain, which included a path for the evolution and potential redevelopment of the golf course lands, not a perpetual obligation to operate a golf course.

Consequently, several provisions related to the golf course's perpetual operation, sale, right of first refusal, and redevelopment path were declared inoperative.

The 40% open space principle was largely maintained but its application to golf course redevelopment was clarified.

Following a finding of civil contempt against the defendant for repeatedly forging bank records and lying under oath, the court held a penalty hearing.

Applying criminal sentencing principles, the court weighed aggravating factors, including the deliberate and repeated nature of the deceit, against mitigating factors such as the defendant's eventual remorse and lack of prior record.

The court determined that a significant costs award was the appropriate sanction to punish and deter the conduct, ordering the defendant to pay $400,000 as a penalty, plus $44,118.46 for the costs of the hearing on a substantial indemnity basis.

The respondent, Nordik Windows Inc., brought a motion to quash an appeal by the appellants, Aviva Insurance Company of Canada et al., arguing the underlying order was interlocutory and required leave to appeal to the Divisional Court.

Aviva contended the order was final as it determined a limitation period issue.

The Court of Appeal found the motion judge's order was interlocutory, as it did not finally determine the limitation period defence, but rather dismissed the motion without a final conclusion on that issue.

The appeal was therefore quashed.

The plaintiff brought a motion seeking a Mareva injunction against May Anis and BNP Advisors Inc., a finding of contempt against May Anis, and a variation of an order to make May Anis and BNP Advisors Inc. solely responsible for the Receiver's fees.

The motion arose from a shareholder and employment dispute where May Anis repeatedly produced forged bank records, lied under oath, and provided false information to the court and an investigative receiver.

The court granted the Mareva injunction, found May Anis in contempt due to her egregious and repetitive dishonest conduct, and ordered her and BNP Advisors Inc. to bear all Receiver's fees.

The plaintiff was awarded costs of the motion.

This decision provides supplementary reasons for judgment in a land claim case.

Following an earlier declaration that a substantial portion of Sauble Beach was reserved for the sole use and benefit of the Chippewas of Saugeen First Nation and forms part of Saugeen Indian Reserve No. 29, the court considered whether to grant a life interest in certain 'Disputed Lots' to current family title owners (Landowners).

The Chippewas of Saugeen First Nation and Canada opposed this.

The court determined it lacked jurisdiction to impose a proprietary interest contrary to the Indian Act and Constitution Act, as reserve land is inalienable.

It also found that granting such an interest would not advance reconciliation.

Consequently, the temporary delay in the original declaration that no third parties have an interest in the land was terminated, making the declaration effective immediately.

The Chippewas of Saugeen First Nation brought an action seeking a declaration that a 1.4-mile strip of Sauble Beach (the Disputed Beach) is part of their unsurrendered reserve land under Treaty 72 of 1854.

The court found that the Imperial Crown's surveyor, Charles Rankin, improperly marked the northern terminus of the reserve's eastern boundary further south than the Treaty stipulated, depriving the First Nation of the promised coastline.

The court held that the Imperial Crown and the federal Crown breached their sui generis fiduciary duties and acted inconsistently with the honour of the Crown by failing to properly survey, protect, and preserve the reserve.

The court rejected the defendants' arguments that the First Nation's claim was defeated by Crown patents, the doctrine of bona fide purchaser for value without notice, the Limitations Act, laches, dedication, or proprietary estoppel.

The court declared that the Disputed Beach remains unsurrendered reserve land for the sole use and benefit of the First Nation.

The respondent moved to quash an appeal of an arbitral costs award on the basis that the appellants failed to seek leave to appeal under s. 133(b) of the Courts of Justice Act.

The appellants argued that the Arbitration Act and their arbitration agreement provided broad appeal rights without the need for leave.

The court dismissed the motion to quash, finding that the appeal was not manifestly devoid of merit and that the requirement for leave in commercial arbitrations with broad appeal agreements remains an open question to be determined by the judge hearing the appeal.

The Court of Appeal for Ontario issued an endorsement regarding a request to vary a trial costs award.

Following a successful appeal and cross-appeal by the Respondents (plaintiffs/defendants by counterclaim), they sought to vary the trial costs award, arguing entitlement to a higher scale due to beating a Rule 49 settlement offer.

The Appellants (defendants/plaintiffs by counterclaim) opposed this request.

The Court declined to vary its decision, noting that the Respondents had not appealed or sought leave to appeal the trial costs, nor had they raised the issue in their notices of cross-appeal or in their submissions on costs.

The Court of Appeal dismissed appeals by two groups of appellants (Varma/Madra and Palihapitiya) and allowed a cross-appeal by the respondents.

The case involved corporate malfeasance, breach of fiduciary duty, breach of contract, knowing assistance, and conspiracy related to the establishment of a competing fund (Annex Fund) and the undervalued sale of a technology company (Xtreme Labs), including the concealment of an equity interest in Hatch Labs (Tinder).

The trial judge's findings of liability for damages and disgorgement were largely upheld, and the disgorgement amount was increased on cross-appeal to serve a stronger deterrent purpose.

The court affirmed that directors of a corporate general partner can owe fiduciary duties directly to a limited partnership.

This appeal concerned the application of the rule against perpetuities to land development agreements.

ClubLink Corporation ULC appealed a lower court decision that upheld perpetual obligations to operate a golf course or convey the land to the City of Ottawa.

The Court of Appeal found that the contractual provisions requiring conveyance of the golf course lands to the City, or reconveyance back to the original owner, created contingent interests in land.

As these interests did not vest within the 21-year perpetuity period, they are void and unenforceable.

The court clarified that the expectation of a contingency materializing is not a factor in determining if an interest in land is created.

The appeal was allowed, and the relevant sections of the 1981 Agreement were declared void.