J. Thomas Curry

Minority shareholders appealed a trial judgment finding oppressive conduct by majority shareholders in a real estate development company.

The trial judge found that the majority had issued too many shares in response to cash calls when the minority shareholder refused to participate, thereby diluting the minority's ownership interest.

The appellate court upheld the trial judge's interpretation of the shareholders' agreement and the calculation of share dilution, with minor adjustments to the valuation calculations.

The court also set aside punitive damages against one defendant due to inadequate notice in the pleadings, and dismissed the appellants' costs appeal.

The appellant appealed a finding of civil contempt and a 30-day jail sentence for failing to comply with a default judgment requiring him to provide an accounting and produce financial documents.

The appellant argued the motion judge failed to articulate the test for contempt, erred in ordering production of documents from a Crown disclosure brief, and violated principles of fundamental justice.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the test for contempt beyond a reasonable doubt, properly rejected the appellant's excuse regarding the Crown brief, and afforded the appellant procedural fairness.

The appellant appealed a trial judgment dismissing his personal injury action following a motor vehicle accident.

The trial judge had found the appellant failed to prove his injuries or causation, making it unnecessary to determine the statutory threshold under the Insurance Act.

The Court of Appeal raised the issue of jurisdiction on its own motion and concluded that, because the judgment contained no declaratory relief regarding the threshold, the appeal and cross-appeal properly lay to the Divisional Court under s. 19(1.2) of the Courts of Justice Act.

The proceedings were transferred accordingly.

The representative plaintiff in a class action sought costs following a successful second motion under s. 5(1)(a) of the Class Proceedings Act and a subsequent consent certification.

The court awarded the plaintiff partial indemnity costs of $31,089 for the contested motion.

For the balance of the certification motion, the court ordered a hybrid costs award because the defendants did not communicate their consent in a timely fashion, fixing costs at $65,235, with one-third payable forthwith and two-thirds payable in the cause.

The plaintiffs brought an omnibus motion for certification, settlement approval, class counsel fees, and representative plaintiff honoraria in a class action against 407 ETR.

The action alleged that 407 ETR unlawfully used the plate denial remedy against insolvent vehicle owners, contrary to the stay of proceedings under the Bankruptcy and Insolvency Act.

The court certified the action for settlement purposes and approved a settlement fund of $7,965,800, finding it fair, reasonable, and in the best interests of the class.

The court also approved class counsel's 30% contingency fee and a $10,000 honorarium for each of the three representative plaintiffs.

The Association of Justices of the Peace of Ontario brought an application for judicial review of the Lieutenant-Governor in Council's response to the Sixth Justices of the Peace Remuneration Commission's report.

The Association challenged the government's rejection of salary and WASH Court day recommendations, and its unilateral implementation of benefit changes.

The Divisional Court held that the government provided a rational basis for rejecting the salary and WASH Court recommendations.

However, the court found the unilateral implementation of benefit changes without independent commission consideration to be unconstitutional, quashing that part of the response and prohibiting implementation until a commission reports on the issue.

A motion by the government to set aside an interlocutory stay order was dismissed.

The appellant, 407 ETR, appealed a motion judge's decision regarding the application of the Limitations Act, 2002 to unpaid toll debts.

The Court of Appeal held that a civil action to collect unpaid tolls is not an 'appropriate means' under s. 5(1)(a)(iv) of the Limitations Act until the statutory licence plate denial process has run its course and the debtor's vehicle permit expires.

The Court also held that a 15-year limitation period in a transponder lease agreement is enforceable under s. 22(3) of the Limitations Act, even though it is a consumer agreement, because s. 22(3) permits parties to extend the limitation period.

The appeal was allowed.

The appellant, a lawyer, appealed a finding of professional misconduct by the Law Society Appeal Panel related to his uncivil in-court conduct during a lengthy securities fraud trial.

The appellant argued that trial judges, not the Law Society, should oversee in-court conduct and that the Appeal Panel's test for incivility failed to protect zealous advocacy.

The Court of Appeal held that the reasonableness standard of review applied to the Appeal Panel's decision.

The Court found that the Law Society has the statutory authority to discipline lawyers for in-court incivility, independent of a trial judge's actions.

The Court upheld the Appeal Panel's test for incivility and its finding that the appellant's repeated, unfounded allegations of prosecutorial misconduct constituted professional misconduct.

The appeal was dismissed.

The Association of Justices of the Peace of Ontario brought an urgent motion for an interim stay of the implementation of changes to pre-retirement and post-retirement benefits for Justices of the Peace, pending an application for judicial review.

The applicant argued that the government's unilateral implementation of these changes without input from an independent commission violated constitutional principles of judicial independence.

Applying the RJR-Macdonald test, the court found a serious issue to be tried, irreparable harm to the justices if the stay was not granted, and that the balance of convenience favoured the applicant.

The interim stay was granted.

The appellant, Sky Solar, appealed an arbitration award dismissing its claim for indemnification against the respondent, Marnoch, for losses resulting from fires caused by failed electrical transformers.

The arbitrator found that Marnoch was not liable under the contractual warranties because Sky Solar had chosen the transformers and did not rely on Marnoch's skill and judgment.

The Superior Court of Justice applied the reasonableness standard of review and upheld the arbitrator's decision, finding no extricable errors of law and concluding that the arbitrator's interpretation of the contract and decision not to determine the liability of a non-party manufacturer were reasonable.

The appellant, representative plaintiff in a proposed class action by unit holders of a real estate investment trust, appealed a motion judge's decision striking a knowing assistance claim against the respondents.

The claim alleged the respondents assisted a trustee in a breach of trust by concealing a conflict of interest in a property transaction.

The Court of Appeal allowed the appeal, finding the motions judge erred by failing to generously construe the pleadings and by concluding that the respondents' alleged suppression of information and active participation could not amount to knowing assistance.

The claim was found to be legally plausible.

The Court dismissed the appeal and held that Ontario’s permit-suspension enforcement mechanism is constitutionally inoperative to the extent it enforces a bankruptcy-provable toll debt discharged under s. 178(2) of the Bankruptcy and Insolvency Act, because it creates an operational conflict and frustrates Parliament’s financial rehabilitation purpose.

The appellant lawyer appealed a decision of the Law Society Tribunal Appeal Panel, which had overturned a Hearing Panel's dismissal of professional misconduct complaints and remitted four particulars for a new hearing.

The Divisional Court first determined it had jurisdiction, finding the Appeal Panel's decision was a final order.

On the merits, the Court held that the Appeal Panel reasonably concluded the Hearing Panel had misapprehended the evidence by failing to accord any weight to the factual findings of predicate tribunals (the HRTO and Superior Court).

The appeal was dismissed with costs awarded to the Law Society.

In a bifurcated class action certification motion, the court considered whether unit-holders of a publicly traded real estate investment trust had pleaded viable causes of action arising from an allegedly conflicted property transaction that was later rescinded, causing a sharp drop in unit value.

The court held it was plain and obvious that officers and trustees did not owe fiduciary duties directly to unit-holders in the circumstances pleaded, and struck the fiduciary duty claims.

However, the breach of trust claims against certain trustees, grounded in the declaration of trust and the arguable ability of unit-holders to sue for dishonest or negligent breach of trustee obligations, were allowed to proceed.

The knowing assistance claim survived only against the former CEO, while similar claims against the vendor parties and their solicitors were struck for failure to plead active assistance in the trustee's breach.

Certification was dismissed as against the vendor parties and their solicitors.

The plaintiff, a unit-holder in a real estate investment trust (REIT), brought a proposed class action alleging that the REIT's former CEO and trustees breached their fiduciary duties and duties of trust by entering into an undisclosed related-party transaction.

On a bifurcated certification motion to determine if the pleadings disclosed a reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, the court struck the breach of fiduciary duty claims, finding that the defendants owed duties to the REIT but not to the unit-holders.

However, the court allowed the breach of trust claims against the trustees and the knowing assistance claim against the former CEO to proceed, while striking the knowing assistance claims against the vendor and the vendor's solicitors.

The court issued supplementary reasons to clarify when the two-year limitation period begins to run for claims arising from unpaid Highway 407 toll invoices.

The dispute concerned whether the limitation period commenced when the debtor’s vehicle permit expired during licence plate denial or when the debtor was first placed into licence plate denial under the Highway 407 Act.

The court held that the limitation period begins when the Registrar places the debtor’s licence plate into licence plate denial.

This interpretation avoids allowing the toll operator to control when the limitation period begins and is consistent with the statutory collection scheme and the principles underlying limitation periods.

The court therefore confirmed that the limitation period in the case began on the date the licence plate was placed into denial.

The appellant sought to recover funds allegedly stolen by a fraudster and then paid as restitution to an earlier victim, advancing tracing, knowing receipt, and unjust enrichment claims against an individual respondent.

The Court of Appeal majority held there was no basis to interfere with the trial judge’s exclusion of substantive hearsay statements from the fraudster, and no palpable and overriding error in the finding that a CAD$150,000 restitutionary payment was not traced on a balance of probabilities to the appellant’s funds.

As to a separate CAD$40,000 payment, the majority held that even assuming tracing into the corporate respondent’s account, there was no basis for imposing personal liability on the individual respondent because the corporate tax debt paid was not his personal liability at the time.

The appeal was dismissed with costs, over a dissent that would have allowed the claim for CAD$190,000.

The appellant creditor sought a declaration that the bankrupt's judgment debt survived his discharge from bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The trial judge dismissed the claim, finding that the bankrupt owed no fiduciary duty to the appellant, even though he had breached a fiduciary duty to a third party.

The Court of Appeal dismissed the appeal, confirming that s. 178(1)(d) applies only if the bankrupt owed a fiduciary duty directly to the creditor seeking the declaration.

The respondent, having been successful on the appeal, sought costs on a partial indemnity basis.

The appellant argued that no costs should be awarded because the appeal involved an issue of public importance, or alternatively, that costs should be reduced to reflect divided success on the issues.

The Court of Appeal rejected both arguments, finding the issue was not truly novel and declining to make a distributive costs award.

The respondent was awarded costs of $83,875.85.

The applicant College sought costs following its successful motion and application for permanent injunctive relief against the respondents, who were restrained from holding themselves out as regulators or qualified practitioners of traditional Chinese medicine.

The respondents argued they were advancing a public interest constitutional challenge and lacked the ability to pay.

The court found the respondents were attempting to re-litigate issues already decided against them in a previous Divisional Court proceeding, making public interest costs protection inapplicable.

Applying the principles of proportionality and fairness, the court fixed costs payable to the applicant at $75,000, reduced from the $161,066.96 claimed.