Kenneth Prehogan

The plaintiff sought leave to amend its statement of claim to plead, in the alternative, breach of the defendant's obligation to give reasonable notice of termination of a consulting agreement, without alleging new facts.

The defendant opposed, arguing it raised a statute-barred new cause of action or lacked particulars.

The court granted leave to amend, finding it was an alternative theory of damages based on existing facts, not a new cause of action, and that sufficient material facts were pleaded.

The plaintiff was ordered to pay $5,000 in costs for the amendment.

The defendant's cross-motion to dismiss the action for non-compliance with a costs order was denied, but its motion to strike certain evidence was granted, with $1,000 costs awarded for that portion.

The plaintiffs, as judgment creditors, previously obtained a civil contempt order against the defendant judgment debtor for concealing income and moving assets to defeat his creditors.

The penalty phase was adjourned to allow the defendant to purge his contempt by paying $112,623.

The defendant paid the amount in full, albeit past the deadline.

The court determined the appropriate sentence for the contempt, weighing mitigating factors (purging the contempt, no prior record, apology) against aggravating factors (intentional and long-running misconduct).

The court ordered the defendant to complete 75 hours of volunteer community service over six months.

The appellants moved under Rule 59.06(2)(d) of the Rules of Civil Procedure for reconsideration of the Court of Appeal's decision maintaining awards of damages against them.

The appellants contended that the trial judge miscalculated damages as of a specific date by failing to consider post-date gains from a transaction.

The Court of Appeal dismissed the motion, finding that the appellants were attempting to reargue an issue that had been decided against them at trial and on appeal, and that the theory of damages was not raised in the original appeal.

The applicant brought an application for a declaration that a right-of-way granted by the respondent municipality in 1971 included the right to permit parking on the property.

The municipality argued the right-of-way only allowed for access and egress.

The court applied principles of contract and easement interpretation, considering the historical context and subsequent conduct of the parties.

The court declared that the right-of-way included the ancillary right to permit parking to access commercial premises, provided it was non-exclusive and did not amount to occupation.

The defendants sought leave to appeal an order compelling them to answer questions refused during an examination in aid of execution.

They also requested an extension of time to file the notice of motion for leave to appeal and a stay of the order pending appeal.

The court dismissed the motion for leave to appeal, finding that neither branch of the test under Rule 62.02(4) was met.

There was no conflicting decision on a matter of principle, and no serious doubt about the correctness of the order, nor did the proposed appeal raise matters of general importance beyond the immediate parties.

Consequently, the requests for an extension of time and a stay were also dismissed.

Shareholders of two successive corporate ventures to develop oil and gas fields in Russia sued defendants for fraudulent misrepresentation, deceit, and conspiracy.

The defendants had induced the plaintiffs to invest US$50 million in a sham public company (Magellan) by falsely representing that another investor (BDW) had committed to investing US$70 million.

When the fraud was discovered, the parties reorganized under a new company (Koll), but the defendants continued to deceive the plaintiffs about asset values and IPO prospects to induce further investment.

The trial judge awarded full compensatory damages to the plaintiffs.

On appeal, the court upheld liability for pre-June 2006 conduct but set aside liability for post-June 2006 conduct based on unpleaded fraudulent misrepresentation claims regarding IPO-related statements, while maintaining liability for wrongful garnishment of remaining Magellan funds.

The court addressed a costs dispute concerning a claimed accounting disbursement incurred during motion proceedings involving a family trust dispute.

The responding parties argued that the accounting work performed by an accounting firm was duplicative of the work performed by an expert witness retained by the moving party.

The court found that the accounting firm and the expert witness served distinct roles and that the accounting work was reasonably necessary in light of accounting evidence advanced by the opposing parties.

The court also noted that the responding parties themselves had retained multiple accounting professionals.

The challenged disbursement was therefore allowed.

Following a successful interim motion, the plaintiff sought substantial partial indemnity costs including legal fees and significant disbursements.

The defendants challenged the seniority of plaintiff’s counsel, the necessity of multiple cross-examinations, and certain expert-related disbursements.

The court rejected arguments that senior counsel or the scope of cross-examination rendered the costs unreasonable and held that the successful party was entitled to recover reasonable litigation expenses incurred to respond to the defendants’ positions.

Expert accounting fees incurred to respond to the opposing expert were allowed.

The court fixed legal fees at $75,000 plus HST and allowed most disbursements, reserving determination of one accounting disbursement pending further submissions.

The plaintiff brought a motion for interim relief under the oppression provisions of the OBCA against his parents and various family corporations.

He sought an interim distribution of proceeds from a US litigation and the continuation of monthly payments he had historically received.

The court declined to order the interim distribution due to the contingent nature of the funds, but ordered the funds protected and settlement information disclosed.

The court also declined to order the continuation of historical monthly payments, finding them to be personal gifts.

However, the court found a strong prima facie case of oppression regarding unequal cash advances made to other shareholders from a family holding company, and ordered interim equalization payments and a halt to non-dividend cash advances.

Following Minutes of Settlement resolving estate litigation concerning farm property and estate assets, the parties disputed the interpretation of tax liability provisions in the settlement.

The responding party intended to pursue a tax strategy regarding estate filings and potential CRA assessments, while the moving party sought clarification and orders restricting what she characterized as a high-risk tax plan.

The court held that the Minutes of Settlement constituted a contract whose terms were clear and unambiguous when interpreted using standard contractual interpretation principles.

The agreement allocated full responsibility for tax restructuring, related transactions, and resulting liabilities to the responding party, including an obligation to indemnify the moving party and the estate trustee for any resulting liability.

The request for further clarification and restrictions was therefore dismissed.

The appellants, an author and her company, appealed a decision granting the respondent television production company a declaration that an option agreement for the television rights to her books remained in effect.

The respondent had mistakenly paid a lower extension fee under the wrong contractual clause.

The application judge interpreted the contract to allow for cumulative extensions and granted the respondent relief from forfeiture for the mistaken payment.

The Court of Appeal dismissed the appeal, finding the application judge's reasons were adequate, his interpretation of the contract was correct, and he made no error in exercising his equitable discretion to grant relief from forfeiture.

The parties executed Minutes of Settlement following a mediation, which required the plaintiff to pay $1,325,000 to the defendant and for a farm property to be vested in the plaintiff.

A dispute arose regarding the tax consequences of the settlement.

Given the delay and the defendant's need for funds, the court issued an interim order implementing the non-controversial terms of the settlement, requiring the immediate payment of the funds into escrow and the registration of the vesting order and collateral mortgage, pending a final decision on the disputed issues.

The appellant advanced funds to finance the cost of repairs by third parties to an aircraft owned by the respondent.

It brought a motion for a declaration that it had a non-possessory lien under the Repair and Storage Liens Act.

The motion judge dismissed the claim, finding the appellant was not a 'repairer' under the Act.

On appeal, the Court of Appeal upheld the decision, confirming that advancing funds to finance repairs does not constitute making a repair or bestowing skill, labour, or money on the aircraft.

The appeal was dismissed.

The applicant sought declarations that the respondent had no right to terminate a commercial agreement of purchase and sale after the applicant failed to pay a second deposit on time, or alternatively relief from forfeiture.

The court held that the applicant did breach the agreement by not paying the deposit contemporaneously with the respondent taking possession under a related lease, but the breach was not material under the five-factor substantial failure of performance analysis.

The respondent's purported termination was therefore itself a breach.

However, the court refused to grant specific performance because the land was held only for investment and had already been flipped for a projected profit, making damages an adequate remedy, and also declined relief from forfeiture.

Costs were awarded to the applicant.

The applicant sought to continue an interim injunction over an aircraft owned by the respondent, an agency of the Kingdom of Swaziland, claiming a non-possessory lien under the Repair and Storage Liens Act for funds advanced for refurbishment.

The court found the respondent was not immune under the State Immunity Act due to the commercial activity exception.

However, the court dismissed the motion, finding the applicant was not a 'repairer' under the Act, the limitation period had expired, and there was no irreparable harm to justify an injunction.

A motion by proposed intervenors was also dismissed.

The aircraft was ordered released to the respondent, with a seven-day stay pending appeal.

Following dismissal of an application for a prescriptive easement, the successful respondent sought partial indemnity costs.

The unsuccessful applicants argued the amount was disproportionate, particularly given the nature of the property dispute and the respondent's greater financial means.

The court applied the costs discretion under s. 131 of the Courts of Justice Act, together with Rules 57.01 and 1.04(1), and held that the respondent was entitled to recover fair and reasonable costs reflecting the complexity of the matter and the steps taken to defend its property rights.

Partial indemnity costs were fixed at $76,521.49, payable jointly and severally by the applicants.

The plaintiff landlord sought summary judgment for approximately $800,000 in alleged unpaid rent from its commercial tenant and guarantor, arising from the tenant paying only 50% of minimum rent after opening its store before certain parking spaces were provided.

The dispute turned on whether a lease amending agreement implicitly removed the tenant’s contractual right to pay reduced rent when opening conditions were unmet.

The court applied principles of contractual interpretation emphasizing objective intention derived from the text and surrounding circumstances.

It held that the amendment concerning alternative parking did not modify the tenant’s right under the original lease to pay 50% rent until the required parking spaces were delivered.

The landlord’s claim for back rent was dismissed and the related summary judgment motion by the landlord’s former lawyers seeking dismissal of the negligence claim against them was also dismissed.

The plaintiffs invested $50 million in a Russian oil and gas joint venture, relying on representations made by the defendants regarding the involvement of another major investor and the status of the corporate vehicles.

The plaintiffs later discovered that the corporate vehicles were sham public companies, the other investor had not funded its portion, and the defendants had engaged in stock manipulation and unauthorized issuance of free-trading shares.

The plaintiffs sued for deceit, breach of fiduciary duty, and unlawful conspiracy.

The defendants counterclaimed for breach of contract, inducing breach of contract, and malicious prosecution.

The Superior Court of Justice found several defendants liable for fraudulent misrepresentation, breach of fiduciary duty, and conspiracy, awarding substantial damages to the plaintiffs.

The defendants' counterclaim was dismissed in its entirety.

A franchisor appealed from summary judgment dismissing its claim against a corporation's sole officer, director, and shareholder after the corporation had been found liable for misappropriating funds remitted for payment of utility invoices.

The Court of Appeal held that the individual was not personally liable under the pre-incorporation contract provisions because the corporation had adopted the agreement by conduct, but he was personally liable because he expressly directed the wrongful diversion of funds and the corporate veil should be pierced under Ontario law.

The court upheld the use of summary judgment, rejected reliance on a transition release obtained in the face of material non-disclosure, and found no binding 2007 replacement contract.

Damages were varied downward to reflect conceded deductions and an additional admitted set-off, and appeal costs were awarded against the corporation and the individual jointly and severally.

The appellant, a retail tenant, appealed the dismissal of its breach of contract claim against its landlord for failing to provide additional parking spaces.

The trial judge found a breach but concluded the appellant failed to prove the breach caused a loss, as expert evidence showed vacant spaces were available during peak periods.

The Court of Appeal upheld this finding and dismissed the appeal.

However, the Court granted leave to appeal the trial costs order, finding the trial judge erred in using non-Rule 49 offers to offset time spent on an unsuccessful defence.

The Court awarded the respondents $200,000 in trial costs and $30,000 in appeal costs.