Kevin D. Sherkin

The appellants appealed an order granting them an adjournment on the condition of a limited draw against debtor-in-possession (DIP) financing.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's order.

The court held that since the appellants sought the indulgence, the terms imposed were an entirely reasonable exercise of the motion judge's discretion.

The appellant, a judgment creditor of a corporation, appealed a summary judgment dismissing its oppression claim against the corporation's directors and shareholders.

The appellant argued the respondents acted oppressively by failing to set aside funds to satisfy its judgment while repaying shareholder loans and other creditors.

The Divisional Court dismissed the appeal, upholding the motions judge's finding that the respondents did not strip assets from a profitable company, but rather funded it, and the appellant had no reasonable expectation that a reserve would be maintained for its contingent claim.

The appellant appealed an order denying her leave to commence a derivative proceeding on behalf of a dissolved corporation.

The motions judge had found that the appellant was not acting in good faith due to substantial delay and a multiplicity of actions.

The Divisional Court dismissed the appeal, holding that the motions judge's finding of a lack of good faith was owed deference and that the appellant failed to demonstrate a palpable and overriding error.

The appellants appealed a trial decision dismissing their claim for personal liability against the individual respondent, Stewart.

The claim arose from home renovation contracts signed under the business name 'Renoclub', which failed to disclose the underlying numbered corporation in breach of the Business Corporations Act and Business Names Act.

The Divisional Court upheld the trial judge's finding that such breaches do not automatically result in personal liability, and that the evidence established the appellants knew they were dealing with a corporation rather than Stewart personally.

The appeal was dismissed.

The applicants sought relief under the Arbitration Act and judicial review under the Judicial Review Procedure Act to challenge an arbitrator's award.

The Divisional Court held it lacked jurisdiction under the Arbitration Act, as such applications must be brought before the Superior Court of Justice.

The Court also held that judicial review is a public law remedy unavailable to challenge a private consensual arbitrator's award.

The application for judicial review was quashed, and the remaining relief was referred to the Superior Court.

The appellant appealed a decision setting aside his bankruptcy discharge.

The Court of Appeal dismissed the appeal, finding that the issue of standing was not raised below and could not be raised for the first time on appeal.

The court also upheld the admission of fresh evidence and agreed that there were grounds to set aside the discharge under s. 158(j) of the Bankruptcy and Insolvency Act.

The appellant appealed an order finding its bid in a receivership sale process to be invalid.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the agreed process required parties to submit their final and best offer by a specified date and that the bids were to remain confidential.

As such, an auction was not contemplated, and the appellant's bid was properly ruled invalid.

The moving parties sought leave to appeal an interlocutory injunction that prevented them from directly soliciting the responding party's customers after their business relationship deteriorated over allegations of contaminated products.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the RJR Macdonald test for an injunction, including the findings of a serious issue to be tried, irreparable harm to the responding party's business relationships, and the balance of convenience favouring the responding party.

The appellant appealed a motion judge's decision dismissing its breach of contract and warranty claim against an American respondent for lack of jurisdiction.

The motion judge found no real and substantial connection between the respondent and Ontario.

The Court of Appeal allowed the appeal, finding that the motion judge failed to properly weigh the factors from Muscutt v. Courelles and conflated a choice of law clause with a choice of jurisdiction clause.

The matter was remitted for re-hearing before a different judge.

The appellant employer appealed a trial judgment finding that its former successful salesperson was not a fiduciary and did not misuse confidential information when he left to start a competing business.

The Court of Appeal upheld the trial judge's findings, noting the employee had no management authority, hiring power, or corporate decision-making ability, and thus was not a fiduciary despite his high sales volume.

The Court also agreed that the customer information used was not confidential and the industry relied more on price and service than personal influence.

The appellant appealed a trial judgment, arguing that the trial judge erred in finding that a denial in the statement of defence, when read with a letter from the respondent's counsel, did not constitute an admission.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to conclude there was no unambiguous concession and that the denial put the plaintiff to the proof of its allegations.

The appellants appealed an order dismissing their claim against subsequent purchasers for arrears of common expenses accumulated during the occupancy of a mortgagee in possession.

The Court of Appeal found no error in the motions judge's conclusion that the discharge of the appellants' liens provided a complete answer to the claim.

The appeal was dismissed, subject to a minor amendment to the judgment to clarify that only specific paragraphs of the Statement of Defence and counter-claim were dismissed.

The appellants appealed a judgment finding them liable for corporate oppression and ordering them to pay $1,075,000 to the respondent.

The application judge found that the individual appellant stripped the corporate appellant of profits from a property sale to purchase another property, defeating the respondent's ability to collect on a prior judgment.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the conduct was oppressive, and upholding the remedy and substantial indemnity costs award.

The appellants, Ontario residents, sold a Florida lot to the respondents.

A dispute arose, and the respondents obtained a default judgment in Florida for US$260,000 after the appellants failed to properly defend the action.

The respondents sought to enforce the judgment in Ontario, which had grown to approximately C$800,000.

The Supreme Court of Canada held that the 'real and substantial connection' test applies to the recognition and enforcement of foreign judgments.

The Court found that the Florida court properly took jurisdiction and that the appellants failed to establish the defences of fraud, natural justice, or public policy.

The appeal was dismissed, and the foreign judgment was enforced.

The appellants were investors who signed agreements to purchase condominium units, paying the balance of the purchase price by delivery of promissory notes to the vendor.

The vendor assigned the notes to the respondent bank, which had no knowledge that the vendor would be unable to convey title.

When title was not conveyed, the investors stopped making payments, and the bank sued to enforce the notes.

The Court of Appeal upheld the trial judge's finding that the notes were unconditional promises to pay within the meaning of s. 176(1) of the Bills of Exchange Act, distinguishing the case from Range v. Belvedere Finance Corp., and dismissed the appeal.

Following the release of the court's reasons for judgment, the appellant requested a reconsideration of part of the decision.

The Court of Appeal declined to change the reasons for judgment.

Costs were fixed in favour of the respondents in the amount of $17,808.35 plus GST.

The respondents purchased condominium units as tax-sheltered investments, with the purchase price allocated between land/construction and services.

When the vendor failed to deliver title, the respondents sought compensation from the Ontario New Home Warranty Program.

The Program argued the contract was severable and refused to compensate for the services portion.

The Court of Appeal held that the agreements constituted a single contract for the provision of a home at fair market value, entitling the respondents to compensation for the full purchase price.

The Court also clarified that prejudgment interest is payable out of the guarantee fund at the rate prescribed by the Condominium Act, not the Courts of Justice Act.

The appellant appealed the trial judge's dismissal of its motion to amend its damage claim and the award of only nominal damages for expenditures incurred prior to the respondent's breach of contract.

The respondent cross-appealed the finding that it breached the contract and the trial judge's costs order.

The Court of Appeal dismissed both the appeal and cross-appeal, finding that the trial judge correctly concluded the amendment would cause prejudice, that the appellant's expenses would have exceeded its benefits had the contract been performed, and that the respondent's reasons for terminating the contract were manufactured.

In an addendum to a majority judgment, the Divisional Court clarified that the applicants were entitled to interest on damages payable out of the guarantee fund under the Ontario New Home Warranties Plan Act.

The court held that pursuant to the regulations, interest is payable at the Condominium Act rate and may increase the total payment beyond the standard $20,000 maximum limit.

Interest was ordered payable from the date the Warranty Program initially denied the claims.

The appellants purchased two condominiums as tax-sheltered investments.

The vendor failed to convey title, and the appellants obtained an unpaid judgment against the vendor.

The appellants applied to the Ontario New Home Warranty Program for compensation.

The Program and the Commercial Registration Appeal Tribunal denied compensation for business and investment costs, allowing only land and construction costs, and deducted tax savings.

On appeal, the Divisional Court held that the appellants were entitled to compensation for the entire transaction, including service contracts integral to the condominium purchase, but agreed that tax savings must be deducted from the total financial loss.