Julian Heller

The appellants appealed a discipline panel's decision finding they engaged in professional misconduct by devising and sending three falsified emails to discredit former employees.

The appellants admitted to sending one email but claimed the other two were sent by a hacker.

The Divisional Court dismissed the appeal, finding the panel correctly applied the burden of proof, reasonably rejected the hacking theory, properly qualified the respondent's digital forensics expert, and appropriately drew an adverse inference against the appellants for failing to produce key evidence.

The court also upheld the panel's penalty and costs awards, noting the sanctions were measured given the fundamental dishonesty involved.

The appellant appealed a trial judgment regarding a contractual dispute over the volume of soil delivered to a construction project.

The trial judge had largely dismissed the appellant's claim for unpaid invoices, finding that the respondent was only required to pay for the actual volume of soil delivered, not the volume stated on the delivery tickets.

On appeal, the Divisional Court upheld the trial judge's findings on contractual interpretation, the adequacy of reasons, the refusal to draw an adverse inference, and the exclusion of the appellant's non-compliant expert evidence.

However, the court found a palpable and overriding error in the trial judge's calculation of damages regarding soil compaction.

The appeal was allowed in part, and damages were increased from $15,433.45 to $61,198.

This case involves the sentencing of David Voss for his significant role in a large-scale art fraud scheme involving forged paintings attributed to the renowned Indigenous artist Norval Morrisseau.

The court emphasized the profound and far-reaching damage caused by the fraud, extending beyond financial losses to the cultural and spiritual identity of Indigenous art and artists.

Voss was sentenced to five years in a penitentiary for two charges of fraud.

Other charges against Voss and all charges against co-accused Diane Champagne were withdrawn.

The court declined to order restitution due to the immense complexity of identifying all victims and quantifying losses, deeming it unmanageable and detrimental to the administration of justice.

A forfeiture order was made for the identified forged artwork.

This motion in a construction action concerned Koler Construction Inc.'s request for Falcon Forming Inc. to provide further particulars and supporting documentation for alleged additional costs and delays, specifically related to items in Falcon's Scott Schedule.

Koler argued that Falcon's position on the contract (labour vs. scope of work) had shifted and that previous disclosures were insufficient.

Falcon contended that its Scott Schedule adequately particularized the claim and that discoveries were complete.

The court found that Falcon's Scott Schedule did not provide full answers to the questions asked, especially given the shifting positions and the fact that the Scott Schedule was particularized after discoveries.

The court ordered Falcon to provide the requested particulars and supporting documents for the delay claims.

The moving parties brought a motion for leave to appeal a costs order made by the lower court judge on February 17, 2023.

The Divisional Court dismissed the motion for leave to appeal.

Costs of the motion were awarded to the responding parties in the fixed amount of $5,000.

The defendants, Hafiz M. Ahmad and Orbit Engineering Limited, brought a motion for the production of various electronic documents and their metadata from several third parties and the Association of Professional Engineers of Ontario.

The Discipline Committee granted the motion in part, ordering several third parties to provide the requested documents in their native electronic format with metadata by a specified date.

The Committee also ordered the Association to make best efforts to provide any expert reports it intended to rely on at the upcoming hearing.

The appellants appealed a Committee of Adjustment decision approving minor variances for a neighbouring property to permit reduced setbacks for privacy screens, a cabana, and pool equipment.

The Tribunal allowed the appeal in part.

It authorized the variances for the privacy screens, finding they met the four tests under the Planning Act.

However, it refused the variances for the cabana and pool equipment, accepting expert evidence that the cabana's size and location were obtrusive and that the pool equipment generated noise exceeding municipal and provincial criteria, thereby failing the minor variance tests.

The appellant, Siavash Taheri, appealed a judgment ordering him to pay the respondent, Sina Akhavan, over $2.4 million based on promissory notes.

Taheri argued the trial judge erred in finding two separate loans instead of one, and that the trial transcript quality prevented proper appellate review.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual and credibility findings, and that the transcript deficiencies did not impede review or cause a miscarriage of justice.

The defendants, withdrawn partners of an insurance defence law firm, brought a motion under Rule 45.02 for an order directing the plaintiff partnership to pay their capital repayment amounts into court pending trial.

The plaintiffs had sued the defendants for over $7 million for breach of contract and fiduciary duty, asserting a right of set-off against the capital.

The court found that the capital account constituted a specific fund and that there was a serious issue to be tried.

However, the court dismissed the motion for payment into court because the defendants failed to establish a risk of dissipation, instead ordering the plaintiffs to provide quarterly financial disclosure and not expose the capital to differential risk.

The plaintiff, 1085372 Ontario Limited, brought an action under the Bankruptcy and Insolvency Act (BIA) and the Fraudulent Conveyances Act (FCA) to set aside a transfer of shares in Linus Entertainment Inc. from Michael Shumak to Geoff Kulawick.

The plaintiff alleged the transfer was at undervalue or a fraudulent conveyance.

The court found that the parties dealt at arm's length, the transaction occurred outside the one-year clawback period under the BIA, and the transfer was not at undervalue.

Furthermore, the court found no fraudulent intent on the part of Shumak and that Kulawick acted in good faith and paid good consideration.

The action was dismissed.

The appellant applied for a liquor sales licence for a proposed restaurant and programmable art space in Kensington Market.

The Registrar issued a notice of proposal to review the application after receiving objections from residents, the City of Toronto, and the Friends of Kensington Market.

The objectors argued the licence was not in the public interest due to concerns about noise, disturbance, and increased traffic.

The Tribunal found that the objectors failed to establish that granting the licence was contrary to the public interest, noting the appellant's business model was less likely to cause disturbances than existing problematic establishments.

The Tribunal directed the Registrar to issue the licence but attached conditions restricting hours of service and requiring signage, a contact number for residents, and exterior lighting to address community concerns.

The appellant, Canadian Home Publishers Inc., appealed a judgment that dissolved the limited partnership upon the death of its sole limited partner, David Colville-Reeves, and awarded his estate a 50 percent share in the residual assets of the partnership.

The Court of Appeal allowed the appeal, finding that the application judge erred in importing the residual distribution provision from section 44 of the Partnerships Act into the Limited Partnerships Act.

The court held that a limited partner's rights are strictly defined under the Limited Partnerships Act and do not include participation in residual assets upon dissolution.

The limited partner is entitled only to their share of profits and return of their capital contribution.

The applicant, Canadian Home Publishers Inc. (general partner), and the respondents, estate trustees of David Colville-Reeves (sole limited partner), sought conflicting determinations regarding the entitlement to profits and residual assets of Canadian Home Publishers (CHP), a limited partnership.

The court determined that CHP was dissolved upon David's death because his executors did not become substituted limited partners without consent or prior authorization.

Consequently, CHP must be wound up, and its residual assets are to be distributed equally between the general partner (Lynda Reeves, owner of CHP Inc.) and David's Estate, as per the Partnerships Act.

The court dismissed the respondents' promissory estoppel argument, finding no formal representation or detrimental reliance, and doubted its applicability against mandatory statutory provisions.

The appellant appealed a summary judgment decision dismissing her claims against Minto Group Inc. (her penthouse landlord) and Fasken Martineau DuMoulin LLP (her lawyers).

The appellant had been defrauded by a man she met online who misrepresented his age, wealth, and background.

She sought damages from various parties, alleging they failed to protect her from the fraudster.

The Court of Appeal upheld the summary judgment, finding that the appellant's claims against both Minto and Faskens lacked merit.

Against Minto, the court found no genuine issue requiring trial on claims for intrusion upon seclusion, breach of contract, negligence, negligent misrepresentation, or infliction of mental distress.

Against Faskens, the court found that the lawyer had no obligation to conduct background investigations on the appellant's fiancé absent explicit instructions, and that the scope of the retainer did not include such duties.

The plaintiff was defrauded by her spouse, who she met online.

She sued her former landlord (Minto) and her former law firm (Faskens), alleging they had a duty to protect her by warning her of her spouse's fraudulent background.

Minto had conducted a credit check on the plaintiff without her explicit consent when her spouse applied for a lease.

Faskens had been retained for estate planning prior to the marriage.

Both defendants brought motions for summary judgment.

The Superior Court of Justice granted the motions and dismissed the claims against both defendants, finding that neither the landlord nor the law firm owed a duty to investigate the spouse or protect the plaintiff from his fraud.

In a family dispute over their mother's property, the defendant sister sought a Certificate of Pending Litigation.

The moving plaintiff sister sought an order permitting her to attend the cross-examination of their mother on her affidavit.

The court reviewed the law on excluding co-parties from examinations to prevent the tailoring of evidence or intimidation.

The court ordered that the moving plaintiff be excluded from the mother's cross-examination, directing that only counsel, an interpreter, and the mother be present.

The moving party, a resident of the Netherlands, brought a motion to stay or dismiss a third-party claim against him, set aside service, and require the action to be commenced in the Netherlands or Ireland.

The claim arose from a loan agreement governed by the laws of the Netherlands.

The court applied the Van Breda test and found no real and substantial connection between Ontario and the third-party claim, as the contract was made and performed outside Ontario and the moving party had no ties to the province.

The court also concluded that the Netherlands was the more appropriate forum and set aside the service ex juris under Rule 17.02.

The motion was granted and the third-party claim was dismissed.

The appellant appealed the dismissal of his Fresh as Amended Statement of Claim under Rule 21.01 for failing to disclose a reasonable cause of action.

The appellant had signed a Voluntary Recognition Agreement on behalf of his company with the respondent union in 2008.

He subsequently challenged the validity of the agreement before the Ontario Labour Relations Board, claiming he lacked capacity due to health issues.

The OLRB upheld the agreement's validity, and the Divisional Court dismissed his judicial review application.

The appellant then commenced a Superior Court action seeking damages, alleging misrepresentations by the union.

The motion judge struck out the claim as an abuse of process, finding that the OLRB had exclusive jurisdiction over matters relating to the validity of the collective agreement.

The Court of Appeal upheld the dismissal.

The defendants were successful on a motion and sought costs.

The parties had agreed during the hearing that if the defendants were successful, they would be entitled to partial indemnity costs of $35,000.

The court declined to award substantial indemnity costs and ordered costs of $35,000 to the defendants based on the agreement.

The plaintiff's motion was dismissed, leading to this costs endorsement.

The defendants, Kiewit Alarie A Partnership and Electrical Power Systems Construction Association, sought costs.

The court awarded costs of $4,000 to KAP and $2,000 to EPSCA, all inclusive, payable within 30 days.

The court rejected the plaintiff's arguments for no costs or delayed payment, finding the underlying motion to be without legal foundation, premature, and an abuse of process, and that it unnecessarily delayed proceedings.