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.

The respondents, who were largely successful in defending a shareholder oppression application, sought costs including substantial indemnity costs from the date of an offer to settle.

The court found that the offer to settle did not trigger Rule 49 consequences because it omitted the applicant's statutory right to audited financial statements, an issue on which the applicant was successful.

The court awarded the respondents partial indemnity costs, reduced by 25% to reflect the applicant's partial success, fixing costs at $75,000.

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 appellant appealed the application judge's interpretation of a May 13, 2014 agreement, arguing it was tainted by illegality.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error or extricable error of law in the application judge's interpretation, noting that past litigation had already confirmed the agreement's validity and required specific performance.

Following a successful application regarding the interpretation of a commercial contract for the development of a non-profit cemetery, the applicant sought costs of $45,891.90 on a partial indemnity basis.

The respondent argued that no costs should be awarded or, alternatively, that costs should be capped at $20,000.

The court rejected the respondent's arguments against awarding costs, noting the applicant was wholly successful.

Applying the factors under Rule 57.01(1) and the principle of proportionality, the court fixed the applicant's costs at $35,000 inclusive of disbursements and HST.

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 applicant, a non-profit corporation, brought an application to interpret an agreement regarding the development and management of a cemetery for the Sunni Muslim community.

The court found that the agreement granted the applicant the right to set its own price list for its designated phase of the cemetery.

Furthermore, the court held that the Care and Maintenance Fund (CMF) contributions under the Funeral, Burial and Cremation Services Act must be calculated based on the applicant's lower price list, and that certificates of interment rights are to be issued as individual plots are transferred, rather than all at once.

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 moving party municipality brought a motion for an interlocutory injunction to restrain the responding party from dumping large volumes of fill on its property in contravention of a fill control by-law and a stop work order.

The responding party argued its activities fell under a 'landscaping' exception and that the by-law fees were ultra vires.

The court granted the injunction, finding a serious issue to be tried that the massive volume of fill did not constitute landscaping, presuming irreparable harm to the public interest, and concluding the balance of convenience favoured enforcing the democratically enacted by-law.

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.

Following a successful appeal where the appellant Estate successfully defended the respondent's claim for a one-half interest in a property, the court determined the costs for the proceedings in the court below.

The Estate sought partial indemnity costs of $169,508.

The court reduced this amount by $30,000 to account for two unsuccessful motions brought by the Estate during the litigation.

Costs were fixed at $134,478.68 payable by the respondent to the Estate.

On a motion to quash, the court held that orders granting leave to amend a statement of defence and adding a party defendant for limited purposes were interlocutory, not final.

The motion judge's discussion of res judicata and the Limitations Act, 2002 did not amount to a final determination of those issues on the merits, but only a preliminary assessment that the proposed defence was tenable under rule 26.01.

The court emphasized that appeals lie from orders, not reasons, and that the nature of the underlying motion governs the characterization of the order.

Because the litigation continued and no substantive right was finally determined, the Court of Appeal lacked jurisdiction.

The appeals were quashed and leave to appeal the costs award was refused.

The appellants appealed a trial judgment declaring the respondent the beneficial owner of a half interest in a family home.

The house was purchased in 1974 with title taken in the names of two adult children, as the mother did not qualify for a mortgage.

The mother paid the deposit, mortgages, and expenses using pooled family resources and rental income.

The trial judge found the mother had no money of her own and rejected her resulting trust claim.

The Court of Appeal allowed the appeal, finding the trial judge made a palpable and overriding error by conflating the mother's money with its source.

The Court held the mother was the sole beneficial owner by way of a purchase money resulting trust.

The appellant appealed a summary judgment declaring that a May 2014 agreement between the parties was a binding contract and ordering its rectification to remove a clause requiring a future formal agreement.

The Court of Appeal upheld the application judge's findings that the parties' conduct demonstrated an intention to be bound and that the formal agreement clause was included by mutual mistake.

The appeal was dismissed with costs awarded to the respondent.

The defendant by counterclaim, ONEnergy Inc., sought leave to appeal an order dismissing its motion to strike the claims asserted against it by the plaintiff by counterclaim.

The underlying claim alleged oppressive conduct and sought a constructive trust over assets transferred to ONEnergy.

The Divisional Court denied leave to appeal, finding no conflicting decisions under Rule 62.02(4)(a) and no reason to doubt the correctness of the order or matters of general importance under Rule 62.02(4)(b).