John J. Longo

The appellant, Liquid Capital Exchange Corp., was defrauded in a factoring business scheme by WF Canada Ltd.'s principals.

Liquid Capital sued Frank Zito, an Enbridge Gas Distribution Inc. employee, alleging his participation in the fraud, and sought to hold Enbridge vicariously liable.

The trial judge dismissed the action, finding Liquid Capital had not proven Zito's involvement and, even if he was involved, Enbridge would not be vicariously liable.

On appeal, the Court of Appeal for Ontario upheld the trial judge's findings, concluding there was no reversible error in refusing to find Zito liable and no error in the costs award.

The appeal was dismissed, and leave to appeal costs was denied.

The plaintiff, Liquid Capital Exchange Corp., sought damages for fraud against multiple defendants, including two individuals (Cook and Daoust) who created false invoices, and an Enbridge employee (Zito) and Enbridge Gas Distribution Inc., alleging their involvement or vicarious liability.

The court found that Liquid Capital failed to prove Mr. Zito's participation in the fraud on a balance of probabilities, noting the plaintiff's significant lack of due diligence due to an misplaced trust in one of the fraudsters.

The court also determined that even if Mr. Zito had been involved, Enbridge would not be vicariously liable as Mr. Zito acted outside the scope of his employment and lacked the authority to approve such contracts or invoices.

The action against the defendants was dismissed.

This motion addressed the proper penalty for the respondents' contempt of a consent order prohibiting illegal dumping and site alteration.

The court had previously found the respondents in contempt due to their bad faith, lack of credibility, and continued breaches even after warnings.

The decision considered proportionality, mitigating and aggravating factors, deterrence, denunciation, and the contemnors' ability to pay.

The court imposed a fine of $110,000 payable to the Provincial Treasurer and ordered the respondents to pay $140,000 in full indemnity costs to the applicant, finding their conduct deliberate and disrespectful.

This decision addresses a special case brought under Rule 22.01 of the Rules of Civil Procedure to clarify the scope of the plaintiff's claim and damages following a Court of Appeal decision.

The plaintiff argued for a broad interpretation of her claim, including losses of pension, salary, benefits, and investment opportunity from 2008.

The defendants contended that the Court of Appeal's reasons, which upheld a finding that the limitation period commenced in 2011 upon the CRA's deregistration of the Individual Pension Plan (IPP), narrowed the claim to only damages related to the tax consequences of the IPP's deregistration.

The court agreed with the defendants, holding that the plaintiff's prior positions taken to avoid summary judgment and succeed on appeal were binding, thereby limiting the claim to tax-related losses from 2011 onwards and excluding earlier alleged damages.

The applicants sought a declaration that they were entitled to further coverage under the pandemic-related business income interruption provision of their insurance policy.

The insurer argued the coverage was restricted to an aggregate maximum limit of $50,000 for the policy period, while the insured argued the limit applied to each of their seven daycare locations.

Applying the principles of contractual interpretation, the court found the policy ambiguous but concluded that reading the policy as a whole supported the insured's interpretation.

The court granted the application, declaring the limit of liability is $50,000 for each of the seven scheduled risk locations, for a maximum aggregate coverage of $350,000.

The appellants appealed a motion judge's order dismissing their summary judgment motions seeking to bar the respondent's claim as statute-barred under the Limitations Act, 2002.

The motion judge found that the respondent did not discover her claim until September 28, 2011, when the Canada Revenue Agency confirmed that her Independent Pension Plan did not comply with the Income Tax Regulations.

The respondent had established the IPP on the appellants' advice and transferred her commuted pension value to it.

The appellants argued the claim was discoverable by August 2009 when financial advisors and accountants opined the IPP would likely be revoked.

The Court of Appeal upheld the motion judge's decision, finding that the respondent's claim was essentially a tax case hinged on the CRA's determination, and it was legally appropriate to wait for the CRA's confirmation before commencing proceedings.

The defendants brought a motion for summary judgment, arguing the plaintiff's claim for negligent financial advice and misrepresentation was statute-barred under the Limitations Act, 2002.

They contended the plaintiff discovered her claim by August 2009 when she had concerns about her Individual Pension Plan (IPP) and sought legal advice.

The plaintiff argued the limitation period did not begin until September 28, 2011, when the Canada Revenue Agency (CRA) officially deregistered her IPP, as she could not have known of her loss or that a legal proceeding was appropriate before this final determination, especially given the defendants' prior reassurances.

The court dismissed the defendants' motion, finding the claim was timely.

The Applicant sought costs following a motion for contempt, which was dismissed because the Respondent's non-compliance with a prior order was partly due to the Applicant's inaccurate documentation.

The Applicant requested costs on a substantial or partial indemnity scale, while the Respondent sought costs against the Applicant for alleged misconduct.

The court, applying Rule 57.01(1) and (2) of the Rules of Civil Procedure, found no conduct by the Applicant warranting costs against it, but also determined that the Applicant was not entitled to costs due to its own contribution to the dispute.

Consequently, the court exercised its discretion to make no costs award on the application.

The appellant appealed an order of the Superior Court of Justice refusing to adjourn an application.

The appellant argued it was denied procedural fairness as it was unrepresented, had taken steps to prepare a response, and there had been no prior adjournments.

The Court of Appeal upheld the application judge's discretionary decision to refuse the adjournment, finding that the request appeared to be an attempt to delay proceedings.

The court noted the appellant's pattern of resisting performance of contractual obligations through litigation and its relative inaction in the seven weeks between service and the return date.

The appeal was dismissed with costs awarded to the respondent.

The applicant sought an interlocutory mandatory injunction to lift a Site Alteration Order issued by the respondent, which prohibited the importation of 500,000 m³ of fill for a proposed berm on its property.

The applicant argued the berm constituted landscaping and fell under an exception to the respondent's Fill Control By-law.

The court dismissed the motion, finding the applicant failed to meet the higher standard for a mandatory injunction, did not demonstrate irreparable harm (as it was the author of its own misfortune by proceeding without legal certainty), and the balance of convenience favoured the respondent due to potential environmental damage and remediation costs.

The applicant's undertaking as to damages was also deemed inadequate.

The applicant sought rectification and enforcement of an agreement for the purchase of internment rights in a cemetery development.

The respondent argued that the signed document was merely a memorandum of understanding and that a formal agreement subject to legal review had not yet been concluded, requiring the matter to proceed to trial.

The court examined the parties’ post‑execution conduct, including payment and acceptance of a deposit, commencement of due diligence, engagement of consultants, marketing of burial plots, and planning applications.

These actions demonstrated that both parties treated the May 13, 2014 document as the binding formal agreement.

The court held that references within the document to a future “formal agreement” were the result of mutual mistake and ordered rectification.

The applicant purchaser sought a declaration that a vendor take-back mortgage was paid in full, arguing that a price adjustment for non-developable land reduced the balance to zero.

The agreement of purchase and sale required the calculation of non-developable land to occur at the five-year anniversary of the mortgage, but the applicant missed this deadline, claiming it was impossible to determine due to ongoing environmental studies regarding an endangered minnow species.

The court dismissed the application, holding that time was of the essence and the unpredictable nature of the development approval process did not excuse the failure to adhere to the contractually stipulated timeline.

The respondent vendors' cross-application for payment of the outstanding mortgage balance was granted.

The applicant sought a declaration that a vendor take-back mortgage was paid in full, arguing that a price adjustment clause in the Agreement of Purchase and Sale reduced the outstanding balance to zero.

The agreement stipulated that the price adjustment, based on the ratio of non-developable land, was to be calculated at the end of the fifth year of the mortgage term.

The applicant missed this deadline, arguing it was impossible to determine the non-developable land due to ongoing environmental consultations regarding an endangered minnow species.

The court dismissed the application, holding that time was of the essence and the failure to invoke the price adjustment mechanism at the stipulated time precluded any adjustment.