Junior Sirivar

The moving parties brought motions to quash appeals from an order authorizing a court-appointed Sales Officer to enter into agreements to separate joint venture interests in real estate projects as part of a corporate wind-up.

The Court of Appeal granted the motions to quash, finding that the order was interlocutory because it was a step in implementing the wind-up and sale process, not a final determination of substantive rights.

Furthermore, the Court held that the order was made pursuant to the Business Corporations Act, meaning any appeal lies to the Divisional Court.

The defendants, Dentons Canada LLP and Philip Rimer, brought a third-party claim against various individuals and entities, including other lawyers and advisors, seeking contribution and indemnity in a professional negligence action.

The third parties brought Rule 21 motions to strike the third-party claim, arguing that they acted as agents for the plaintiff and therefore any negligence on their part would be attributable to the plaintiff, precluding a third-party claim.

The court struck the claims against one director (Wang) and the escrow agent, finding them doomed to fail based on agency and contractual principles.

However, the court allowed the claims against the other third-party advisors and lawyers to proceed, finding that they fell into a category of non-agency advisory roles where the plaintiff might not be held contributorily responsible for their actions.

Leave to amend was granted to particularize the claims against certain third parties.

The moving parties brought motions for leave to appeal a costs order and a subsequent order.

The Divisional Court dismissed the motions for leave to appeal and awarded costs of $15,000 to the responding parties.

The plaintiffs sought costs following the dismissal of the defendants' motion to vacate a Mareva injunction.

The plaintiffs sought costs on a substantial indemnity scale, alleging egregious conduct by the defendants, including a multi-year fraudulent scheme.

The court declined to award substantial indemnity costs as the claims had not been finally adjudicated.

The court awarded costs on a partial indemnity scale, including the costs of the initial motion made without notice, as those materials were necessary for the de novo hearing.

Costs were fixed at $200,000, payable within 30 days.

The Mizrahi Defendants sought to stay or dismiss the action brought by 2694128 Ontario Inc. under Rules 21.01(3)(d) or 25.11 of the Rules of Civil Procedure or s. 106 of the Courts of Justice Act, arguing that contractual preconditions for the action had not been met.

Specifically, they contended that 2694128 Ontario Inc. could only demand repayment if CERIECO had made a demand under a separate Supplier Credit Agreement (SCA), and that CERIECO was precluded from doing so by a Standstill Provision in a Subordination Agreement.

The court found that while 2694128 Ontario Inc. had made a demand for repayment, it was not plain and obvious that CERIECO's prior demands for repayment under the SCA were invalid or prohibited by the Standstill Provision.

The court determined that the interpretation of the interrelated agreements required a deeper analysis of the factual matrix, which is not suitable for a preliminary motion.

Consequently, the motion to stay or dismiss the action was dismissed.

The applicant, Prospector PTE.

Ltd., sought recognition and enforcement of two foreign arbitral awards rendered by an International Chamber of Commerce tribunal in the United Kingdom against the respondent, CGX Energy Inc. CGX Energy Inc. opposed enforcement, arguing procedural unfairness because it was allegedly denied the opportunity to fully present its case regarding its counterclaim.

The court found that CGX Energy Inc. failed to meet the narrow test for procedural unfairness required to refuse enforcement under the International Commercial Arbitration Act, 2017, and the UNCITRAL Model Law.

The court also applied issue estoppel, noting that the same procedural unfairness argument had already been dismissed by the UK High Court.

The application for recognition and enforcement was granted.

This is an appeal from a commercial arbitration award that found a metal purchase and sale agreement between Franco-Nevada and Taseko had been frustrated due to the denial of federal environmental approvals for a gold mine project.

The Superior Court of Justice, applying a reasonableness standard of review, found the arbitrator's conclusion unreasonable.

The court held that the arbitrator misapplied the test for frustration by failing to properly consider foreseeability and by misinterpreting the contract as project- and timeline-specific, despite provisions allowing for changes and a long term.

The appeal was granted, overturning the frustration finding.

A motion for a sealing order for confidential information was also granted.

The applicant sought recognition and enforcement of a foreign arbitral award from the Shenzhen Court of International Arbitration against the respondents, totaling over $120 million.

The respondents opposed on grounds of improper notice and inability to present their defense, and also moved to admit fresh evidence regarding a related U.S. enforcement proceeding.

The court dismissed the fresh evidence motion, finding it not sufficiently probative.

On the main application, the court found that the respondents did not receive proper notice of the arbitration proceedings and were unable to present their case, despite prior Chinese court decisions deeming service sufficient.

Consequently, the application for recognition and enforcement of the foreign arbitral award was dismissed.

The Joint Liquidators of Stanford International Bank Limited (SIB) appealed the dismissal of their negligence claim against The Toronto-Dominion Bank (TD Bank).

SIB was a vehicle for a massive Ponzi scheme.

The Liquidators claimed TD Bank was negligent in providing correspondent banking services by failing to detect and protect SIB from insider abuse.

The Court of Appeal upheld the trial judge's finding that TD Bank did not owe a novel duty of care to monitor SIB for internal fraud, as this fell outside the scope of TD Bank's undertaking as a correspondent bank.

The court also affirmed the trial judge's alternative finding that even if a duty existed, there was no breach of the standard of care, and that the trial judge's procedural rulings regarding witness recall were fair.

The appeal was dismissed.

In a medical negligence action, the plaintiff sought to call multiple expert witnesses of the same specialty to opine on the same issues.

During a trial management conference, the pretrial judge ordered the plaintiff to elect which experts would testify to avoid duplicative evidence.

The plaintiff objected, arguing that only the trial judge had jurisdiction to limit expert witnesses.

The court affirmed its jurisdiction under Rule 50 of the Rules of Civil Procedure to make orders streamlining expert evidence and preventing duplication, emphasizing the need for trial efficiency and early disclosure.

The moving party brought a motion for leave to appeal the order of Pollak J. dated November 22, 2021.

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

The plaintiff brought a medical malpractice action against her rheumatologist, alleging he breached the standard of care by misdiagnosing her with gout, failing to perform a joint aspiration, and prescribing Allopurinol without informed consent, which led to her developing Stevens-Johnson Syndrome.

The court dismissed the action, finding that the defendant met the standard of care of a reasonable community rheumatologist in diagnosing gout clinically and prescribing Allopurinol.

The court also found that informed consent was obtained and that the plaintiff failed to prove causation, as expert evidence established she had a genetic predisposition making the adverse reaction inevitable regardless of the starting dose.

The appellant, Patricia Ann Smith, appealed the dismissal of her medical malpractice action against Dr. Brenda Kane.

The trial judge found no breach of the standard of care by Dr. Kane in her treatment of the appellant's foot complaints.

The appeal raised three main issues: misapprehension of expert evidence, failure to apply the "ordinary knowledge and common sense" exception to expert evidence, and error in failing to find a breach of the duty to diagnose.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of expert evidence, rejecting the application of the "common sense" exception as it was not raised at trial and the issues were complex, and clarifying that there was no freestanding duty to diagnose in this context given the specific concessions and causation findings.

The respondents brought a motion to stay the applicant's court application in favour of arbitration pursuant to s. 7(1) of the Arbitration Act, 1991.

The dispute arose from a royalty agreement concerning mining claims, which contained an arbitration clause.

The applicant argued that the court should determine the arbitrator's jurisdiction based on exceptions to the competence-competence principle.

The court found that the issues raised, including limitation periods, termination rights, and the application of contra proferentem, required more than a superficial review of the evidentiary record and were not pure questions of law.

The motion to stay was granted, and the alternative request for security for costs was dismissed.

The joint liquidators of Stanford International Bank (SIB) and a group of investors brought actions against TD Bank, SIB's primary U.S. dollar correspondent bank, for knowing assistance in breach of fiduciary duty and negligence.

The plaintiffs alleged that TD Bank should have detected and prevented the massive Ponzi scheme orchestrated by SIB's owner, Allen Stanford.

The Superior Court of Justice dismissed the actions, finding that TD Bank had no actual knowledge of the fraud and was not reckless or wilfully blind.

The court also held that TD Bank did not owe a novel duty of care to protect its customer from insider abuse, and even if it did, it met the standard of care of a reasonable banker during the relevant period.

At a case conference, the Varone Parties sought compliance with a previous discovery plan order made by Master Muir, which the Concord Adex Parties had failed to meet.

The court ordered the Concord Adex Parties to serve their Affidavit of Documents within 10 days and varied the litigation timetable accordingly.

The court also provided directions on how to address an undetermined costs issue from the previous motion, as Master Muir had passed away before rendering his decision on costs.

This endorsement addresses the entitlement to costs following a medical malpractice action where the plaintiff's claim was dismissed.

The parties had agreed on a quantum of $300,000 for costs.

The court found that the defendant, as the successful party, was ordinarily entitled to costs.

The plaintiff's arguments for denying costs, including the defendant's failure to make a settlement offer, alleged divided success on causation and contributory negligence, and the plaintiff's impecuniosity and tragic circumstances, were rejected.

The court emphasized that the defendant's explicit undertaking not to demand costs alleviated concerns regarding hardship, allowing the ordinary rule that costs follow the event to apply.

The court reserved the right to revisit the disposition if the defendant were to seek enforcement of the costs order.

The plaintiffs and defendants brought competing motions regarding the approval of discovery plans in a civil action initiated five years prior.

The plaintiffs proposed a broad plan seeking extensive documentation from 2008 to the present, including personal financial and travel records.

The defendants opposed this, proposing a more limited plan tailored to the relevant period of the relationships (2010-2015).

Applying principles of common sense and proportionality, the court found the plaintiffs' proposed plan to be excessively broad and not aligned with the "needs not wants" approach to discovery, as articulated in *Drywall Acoustic Lathing and Insulation* and *Hryniak v. Mauldin*.

The defendants' more proportional and relevant discovery plan was approved, and the parties were ordered to adhere to a consent timetable.

The defendant Bank appealed a Master's decision denying its motion for security for costs against the plaintiff, a film production company.

The Superior Court allowed the appeal, finding the Master erred by placing too high a burden on the Bank at the first stage of the test and by making palpable and overriding errors regarding the plaintiff's liabilities and secured debts.

The Court found the Bank established good reason to believe the plaintiff had insufficient assets in Ontario, and the plaintiff failed to prove it had sufficient exigible assets or that an order for security for costs would be unjust.

The plaintiff was ordered to post security for costs.

Following the dismissal of Bell Canada's application, Cloudwifi's motion to dismiss/stay, and Cloudwifi's cross-application, both parties sought costs.

Bell sought partial indemnity costs of $122,572.78, and Cloudwifi sought $116,145.76.

The court declined to award costs to either party.

Bell was not entitled to costs as its application was dismissed.

Cloudwifi was denied costs despite its success on the jurisdictional issue because its actions in unlawfully utilizing Bell's equipment amounted to significant misconduct.