John J. Pirie

The appellant, a corporate officer and sole director, appealed a judgment finding him personally liable for civil fraud arising from his company's failure to deliver 3 million NIOSH certified N95 masks during the COVID-19 pandemic to a Quebec hospital network, after receiving over US$11 million in advance payment.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct threshold for recklessness in finding civil fraud and that the law clearly supports personal liability of officers and directors for fraudulent conduct, without needing to assess whether the conduct was "tortious in itself" or exhibited a "separate identity or interest."

The plaintiff, having been successful at trial and awarded over $11 million for civil fraud, sought partial indemnity costs of approximately $1.88 million inclusive of taxes and disbursements.

The self-represented defendant argued the costs were unreasonable and should be apportioned among settling defendants.

The court considered the complexity of the action, the defendant's conduct in increasing costs, and the limited probative value of the receivership proceedings at trial.

The court fixed costs payable by the defendant at $1.05 million plus taxes for fees and $162,000 for disbursements.

During the COVID-19 pandemic, the plaintiff hospital network contracted with the corporate defendant to purchase 3 million NIOSH certified N95 masks, paying over $13 million upfront.

The corporate defendant, directed by the individual defendant Caridi, delivered KN95 masks instead, which were not NIOSH certified.

The plaintiff sued for fraudulent misrepresentation, breach of contract, oppression, and unjust enrichment.

The court found that Caridi acted recklessly in representing that the corporation could deliver NIOSH certified N95 masks without knowing if it was true.

While the court declined to pierce the corporate veil or grant an oppression remedy, it held Caridi personally liable in tort for deceit because his conduct exhibited a separate personal interest (a 50/50 profit split).

The corporate defendant was also found liable for breach of contract.

The moving parties brought a motion for leave to appeal the orders of the motion judge dated April 24, 2022.

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

The plaintiffs brought a motion for a Mareva injunction against the defendants, alleging they were defrauded of over $800,000 CAD/USD through a fake investment scheme.

The defendants allegedly promised to invest the funds in options, futures, or forex, but instead diverted the funds and ceased communications.

The court found the plaintiffs established a strong prima facie case of fraud, conspiracy, breach of trust, breach of fiduciary duty, knowing assistance, and conversion.

The court granted the Mareva injunction, finding a serious risk of asset dissipation.

This endorsement addresses three motions in an oppression action concerning the Paramount Group, a food services business facing shareholder deadlock.

The plaintiffs (Mohamad Fakih et al.) moved to strike portions of the defendants' counterclaim alleging fraudulent misrepresentation and for security for costs.

The defendants (AHM Investments Corporation et al.) moved for compliance with financial disclosure and the appointment of an auditor.

The court partially granted the motion to strike due to insufficient particulars of fraud.

The motion for security for costs was dismissed, as the counterclaim was inextricably linked to the defence and, at its core, an oppression remedy claim, which is exempt from security for costs under the OBCA.

The defendants' motion for financial disclosure and the appointment of an auditor was granted, affirming shareholders' mandatory right to audited financial statements, with the Paramount Group responsible for the audit fees.

Following the dismissal of the defendants' motion on the basis of forum non conveniens, the Litigation Trust and the Class sought costs.

The court awarded the Class $6,000 on a partial indemnity basis for maintaining a watching brief.

The court awarded the Litigation Trust full indemnity costs of $208,590.73, finding that the defendants' motion was captured by the Standstill Agreement between the parties, which provided for full indemnity costs in the event of a breach.

The defendants Pöyry brought a motion seeking orders to prohibit "Releasors" from assisting the Litigation Trustee in a Singapore action and declaring that the Litigation Trustee breached a court-approved settlement agreement by pursuing claims against Pöyry in Singapore.

Pöyry argued that the Litigation Trust's claims were covered by release and bar order provisions of a prior settlement agreement in the class action.

The Litigation Trust opposed, arguing the motion breached a Standstill Agreement, was barred by res judicata, and that the Ontario court should defer to the Singapore courts on grounds of comity and forum non conveniens.

The court dismissed Pöyry's motion, accepting the forum non conveniens arguments.

It declined to provide an opinion or interpret its own settlement orders for the Singapore court, emphasizing that the Singapore court was the appropriate forum to determine the effect of the Pöyry Settlement Agreement and the Ontario court's orders on the Singapore action.

An appeal and cross-appeal concerning a contractual dispute between two friends and their respective companies regarding an employment agreement.

The trial judge found that an oral employment agreement was reached in October 2003 between Mark Couper and Vitaquest International LLC, and that Vitaquest repudiated the agreement in early March 2005.

The appellants challenged the trial judge's finding that Couper was entitled to damages equivalent to base pay for the period October 2003 to March 2005.

The respondent cross-appealed on the issue of whether he was entitled to a US$5 million payment.

The Court of Appeal dismissed both the appeal and cross-appeal, upholding the trial judge's findings.

The plaintiff sued the defendant appraisers for professional negligence after an arbitrator rejected their real estate appraisal, resulting in the plaintiff receiving a lower buyout price for its property interest.

The defendants brought a third party claim against the plaintiff's former lawyers, alleging the lawyers negligently represented the plaintiff during the arbitration and caused the losses.

The lawyers moved to strike the third party claim, arguing it merely alleged a failure to mitigate and was barred by issue estoppel.

The defendants cross-moved to amend the claim and add another law firm as a third party.

The court struck the portions of the third party claim that amounted to a failure to mitigate the initial loss caused by the appraisal.

However, the court allowed the broader claims regarding the lawyers' negligent representation at the arbitration to proceed, finding they disclosed a tenable cause of action.

The court also granted the defendants leave to add the proposed third parties.

The plaintiffs brought a motion for further document production, including an independent search of a defendant's emails, and costs thrown away due to a trial adjournment.

The defendants brought motions for leave to amend a statement of defence and for production of settlement agreements between the plaintiffs and other defendants.

The court dismissed the plaintiffs' discovery motion, finding they had declared readiness for trial despite knowing of the alleged document deficiencies.

The defendants' motion for production of settlement agreements was granted in part, with individual settlement amounts ordered redacted.

Following a motion where the plaintiff was successful, the court considered costs submissions.

The plaintiff sought substantial indemnity costs based on a settlement offer, which the court rejected.

Applying the factors in the Rules of Civil Procedure and Boucher, the court awarded the plaintiff partial indemnity costs of $22,500, in accordance with the parties' prior agreement on the quantum for partial indemnity costs.

The moving defendant sought to bifurcate the action so that the plaintiff's successor liability claim against it would be determined before the negligence and related claims against the remaining defendants.

Applying the governing bifurcation principles, the court held that bifurcation is an exceptional remedy available only in the clearest cases where the preponderance of factors favours severance and the proceeding will more likely than not be resolved justly, expeditiously, and inexpensively.

The court found the successor liability issue was not simple, the case was not extraordinary merely because it involved a novel American doctrine, and any clear advantage or costs savings were largely limited to the moving defendant.

The proposed procedure would also create delay, multiplicity of proceedings, and prejudice to the plaintiff.

The motion was dismissed, with costs to the plaintiff on a partial indemnity basis.

Following a Rule 21 motion where the defendants successfully struck the plaintiff's pleading but the plaintiff was granted leave to amend, the parties made written submissions on costs.

The defendants sought to defer costs, while the plaintiff sought costs based on a pre-motion offer to settle that proposed an amended pleading and a no-costs or costs-in-the-cause disposition.

The court noted the defendants' basic but divided success and the plaintiff's reasonable settlement offer, ultimately ordering that the costs of the motion be in the cause.

The moving parties sought leave to appeal a decision dismissing their Rule 21 motion.

They argued that the action brought by the litigation trust was barred by a Bar Order issued in related class actions, specifically under the phrase 'other claims over'.

The Divisional Court dismissed the motion for leave to appeal, finding that the claims were independent and did not seek contribution or indemnity for damages owed to the class action plaintiffs.

The motion judge's interpretation of the Bar Order was correct and consistent with prevailing case law.

Following the dismissal of the action against certain brokerage defendants on a motion for partial summary judgment, those defendants sought substantial indemnity costs of the action and the motion.

The court reaffirmed the principle that costs generally follow the event and held that the successful defendants were entitled to their costs from the plaintiff.

Although the defendants had made several settlement offers, the court determined that partial indemnity costs were appropriate rather than substantial indemnity.

The court assessed reasonable costs for the summary judgment motion and the remaining litigation steps, reducing claimed hours where the defendants had played a limited or watching role.

Total costs were fixed at $60,000 plus HST for fees and $5,249.87 for disbursements, payable by the plaintiff.

Insurance brokers brought a motion for partial summary judgment seeking dismissal of a negligence claim alleging failure to obtain adequate insurance coverage for a commercial property.

The plaintiff had pleaded that the brokers failed to secure sufficient coverage and failed to advise regarding a co‑insurance clause.

The court found the documentary email record demonstrated the insured provided specific instructions regarding coverage and did not rely on the brokers to assess insurance needs.

The plaintiff also failed to adduce expert evidence establishing breach of the standard of care and could not demonstrate any loss caused by the brokers because the insurance coverage ultimately exceeded the repair costs.

Finding no genuine issue requiring a trial, the court granted summary judgment dismissing the action against the broker defendants.

The respondent settled a third-party claim of $2.25 million for $100,000 using a Rule 49 offer and sought to enforce indemnity agreements against the appellants.

The application judge allowed the enforcement.

On appeal, the appellants argued the agreements lacked consideration and the settlement was unreasonable.

The Court of Appeal dismissed the appeal, finding it unfair to allow the appellants to raise lack of consideration at the last minute after previously conceding the agreements' validity.

The Court also upheld the application judge's finding that the settlement was reasonable given the litigation risks and potential costs.

The appellant and respondent were both defrauded in an investment scheme.

A receiver was appointed and identified three methods for allocating the remaining funds.

The motion judge ordered that distributions be made pursuant to the fund unit allocation method, which is a form of the lowest intermediate balance rule (LIBR).

The appellant appealed, arguing that the motion judge erred in finding that LIBR is the general rule and in equating the receiver's calculations with proper LIBR tracing.

The Court of Appeal dismissed the appeal, confirming that LIBR is the preferred allocation method for comingled funds where practically possible, and finding no palpable and overriding error in the motion judge's factual conclusions regarding the receiver's calculations.

A lawyer sought enforcement of an indemnity agreement executed by former clients in relation to claims arising from the release of disputed trust funds.

After a third-party action was commenced against the lawyer, his professional insurer settled the claim for $100,000 and sought reimbursement under the indemnity agreement.

The respondents argued the settlement was improvident and unreasonable.

The court held that the settlement was reasonable in the circumstances, particularly given the uncertainty of a pending Rule 21 motion and the risks of continued litigation involving a multi‑million‑dollar claim.

The respondents were found jointly and severally liable to reimburse the amounts paid under the indemnity agreement.