Kevin Lawrence MacDonald

The applicant sought judicial review of an HRTO decision that struck the personal respondents and dismissed his human rights application at a summary hearing.

The Divisional Court found the HRTO's decision to strike the personal respondents was reasonable, as the corporate respondent accepted vicarious liability.

However, the court held the HRTO unreasonably dismissed the application by failing to justify its conclusion that there was 'no evidence' of discrimination despite the applicant's factual assertions.

Furthermore, the HRTO breached procedural fairness by ordering a summary hearing after a previous Vice-Chair had already directed a merits hearing which had commenced.

The application for judicial review was granted and the matter remitted to the HRTO for a merits hearing.

The decision concerns two motions to oppose the confirmation of a report of Associate Justice Robinson regarding construction lien and contract claims arising from a Toronto hospital project.

The court confirms the report, finding no error in the associate judge’s analysis of whether Kelson had a direct contract with Sjostrom, the effect of a change order on Amar’s scope of work, and the sufficiency of evidence for claimed damages.

The court upholds the associate judge’s findings that Kelson breached its contract with Amar but that Sjostrom failed to prove its damages, and dismisses both motions.

This decision concerns the approval of a sale process and a motion to appoint the sales officer as receiver in the context of a deadlocked insurance brokerage business.

The court approves the sale process and related ancillary relief, including the appointment of an interim broker and non-solicitation orders, but dismisses the motion to appoint the sales officer as receiver.

The ruling addresses issues of conflict of interest, compliance with prior orders, and the preservation of assets pending winding up.

The plaintiffs, Gary and Jennifer McKenzie, brought two claims: one for breach of contract against Fabco Holdings Inc. and Jaymor Specialty Housing General Partner Inc. (Fabco/Jaymor) arising from an aborted real estate purchase agreement, and another for slander of title/injurious falsehood against Gerald Anthony, a neighbour, regarding a disputed property boundary.

The court found that Fabco/Jaymor breached the purchase agreement, not due to a legitimate title issue, but because the property was unsuitable for their development plans.

Fabco had assigned its obligations to Jaymor, and the court held Jaymor solely responsible for the breach, releasing Fabco from liability per the contract's assignment clause.

The court awarded the plaintiffs substantial damages against Jaymor for loss of bargain and associated costs.

Regarding the title claim, the court found Anthony liable for slander of title/injurious falsehood for registering a caution and application on title without bona fide grounds, which delayed the subsequent sale of the property.

However, Anthony was not held liable for damages related to the initial aborted sale, as that was attributed to Fabco/Jaymor's independent reasons.

The court awarded damages against Anthony for losses incurred due to the delay in the second property sale.

The defendants' counterclaim was dismissed, and the plaintiffs were found to have reasonably mitigated their damages.

This endorsement addresses the costs of a motion for advice and directions brought by a Sales Officer in three oppression remedy applications.

The underlying motion resolved in favour of Doug Middleton, Jason Middleton, and JDM Group Ltd. (the "Middleton parties") against Mark Ber and his affiliates (the "Ber parties"), finding Mark's actions had undermined the Sales Officer's mandate.

The court considered whether Mark's conduct warranted substantial indemnity costs, ultimately concluding it did not meet the threshold for "reprehensible, scandalous or outrageous" behaviour.

The court ordered the Ber parties to pay partial indemnity costs to the Middleton parties and deferred any ruling on the disproportionate allocation of the Sales Officer's costs.

The moving party brought a motion for leave to appeal the order of Casullo J. dated December 4, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

This motion, brought by the court-appointed Sales Officer in consolidated oppression remedy applications, sought directions regarding the inclusion of insurance policies in the sale plan of two closely held companies, Producer’s Planning Group Ltd. and The Benefits Group Inc. The dispute centered on 789 policies (PG Transferred Policies) that had been transferred to Mark Ber's company, The Producer’s Group Ltd. The court addressed two main issues: the ownership of 'PG Originating Policies' and the inclusion of 'PG Orphaned Policies' which clients transferred to Mark Ber's company after he ceased providing services through the original companies.

The court found that the PG Originating Policies were owned by the Planning Group and that Mark Ber improperly caused their transfer.

It also found that the PG Orphaned Policies should be included in the sale plan due to Mark Ber's unilateral actions undermining the court's prior order.

The court dismissed the respondents' request for a trial of issues, affirming its jurisdiction to decide the matter on the written record, consistent with Commercial List practice.

The applicants sought urgent interim relief against a respondent for alleged misappropriation of corporate assets of a company undergoing court-ordered winding-up.

The court addressed jurisdiction, finding the issues had not merged in a prior final order.

While a strong prima facie case for some alleged improper payments was found, the court determined no irreparable harm was established, declining to grant immediate mandatory repayment.

Instead, it clarified rules for future expenses and expanded the Sales Officer's powers to investigate and reconcile the disputed payments as part of the ongoing winding-up process.

This is a costs endorsement for three related applications concerning shareholder rights and oppression remedies in private companies (Producers Planning Group Ltd., The Benefits Group Inc., and Thornbridge Capital Inc.).

The main applications resulted in an order for the sale of businesses and assets of two companies, while claims for oppression remedies were dismissed for all parties.

The court found that all parties had substantial success as respondents in opposing the oppression claims made against them.

Due to the overlapping issues and the divided success, the court ordered no costs for any of the three applications, as the costs of successful respondents would largely offset the costs for which they would be liable as applicants in other applications.

Three related applications were brought concerning shareholder disputes in three closely held corporations operating as insurance brokerages and an investment holding company.

The applicants sought declarations of oppression and various remedial orders, including share buyouts and winding up.

The court dismissed all claims of oppression, finding no conduct that violated reasonable expectations.

However, the court found that the shareholders of two of the operating companies were hopelessly deadlocked and unable to work together.

Consequently, the court ordered the winding up of those two companies under the just and equitable ground of the Business Corporations Act, while dismissing the request to wind up the investment holding company.

Following a summary judgment mini-trial where the plaintiff was awarded $559,926.18 for breach of trust under the Construction Act, the court determined costs and interest.

The court found the defendants' withholding of trust funds to be unreasonable and unjustified, warranting substantial indemnity costs.

The plaintiff was awarded $131,776.36 in costs and pre-judgment interest at 1.5%.

The plaintiff subcontractor brought a motion for summary judgment against the defendant general contractor for breach of trust under the Construction Lien Act.

The defendant had received funds from the project owner but withheld payment to the plaintiff after the plaintiff registered a claim for lien.

The court found that the defendant's failure to pay the trust funds within a reasonable time and failure to provide an accounting constituted a breach of trust.

The defendant's cross-motion for set-off was dismissed due to lack of evidence.

Judgment was granted in favour of the plaintiff for $559,926.18.

The applicant sought leave to appeal an arbitration award concerning the division of proceeds from the sale of a jointly owned property.

The arbitrator had credited the respondents with $30,730 for construction costs incurred prior to the execution of Minutes of Settlement.

The Superior Court of Justice granted leave to appeal, finding that the arbitrator made an extricable error of law by ignoring the plain wording of the Minutes of Settlement, which reset the parties' rights as of the date of execution.

The appeal was allowed, and the arbitration award was varied to remove the $30,730 credit.

Following a trial where the plaintiff was awarded $150,899 in damages for the termination of a consulting agreement, the court determined the issue of costs.

The plaintiff sought substantial indemnity costs based on two offers to settle, but the court found neither met the requirements of Rule 49.10.

The court awarded partial indemnity costs but reduced the quantum to $20,000 all-inclusive due to the plaintiff's late production of material documents shortly before trial, which breached the Rules of Civil Procedure.

The plaintiff, an independent contractor, sued for unpaid termination payments after the defendant terminated his consulting agreement.

The defendant initially terminated without cause, then later alleged cause based on breaches of non-competition, confidentiality, and the duty of honest performance.

The court found the non-competition clause unenforceable due to ambiguity and overbreadth, and no material breach of confidentiality or dishonest conduct, as the plaintiff's activities were minor and the confidential information was not misused.

Judgment was awarded to the plaintiff for the unpaid amounts.

The court determined the fair market value of the applicant's shares and the costs of the proceeding following a successful oppression application.

The court rejected the respondents' liquidation approach to valuation, preferring a going-concern adjusted book value approach, and fixed the share value at $668,674.

The court awarded substantial indemnity costs to the applicant and counter-respondents, citing the respondents' incivility, excessive posturing, and unfounded allegations of fraud.

The defendants requested case management under Rule 77 of the Rules of Civil Procedure due to the plaintiff's alleged non-compliance with a prior order, including the payment of costs.

The court found Rule 77 inapplicable to civil cases in the Central West Region.

Considering the request under Rule 37.15, which allows case management for complicated issues or multiple similar proceedings, the court declined the request.

The court found no information indicating complicated issues or multiple proceedings, only alleged procedural non-compliance.

The plaintiffs brought a motion for summary judgment after the defendants failed to close on a residential real estate transaction.

The defendants had entered into an agreement of purchase and sale for $2,250,000 but failed to pay the second deposit and repudiated the contract due to financing issues.

The plaintiffs relisted the property and eventually sold it for $1,770,000.

The defendants argued the plaintiffs failed to mitigate their damages by not relisting at a lower price immediately.

The court found no genuine issue requiring a trial, holding that the plaintiffs acted reasonably in their mitigation efforts, and granted summary judgment for the difference in sale price plus special damages.

The defendants abandoned a motion to introduce fresh evidence and set aside the trial judgment based on allegations of fraud.

The plaintiff sought costs on a substantial indemnity scale for the abandoned motion.

The court awarded the plaintiff substantial indemnity costs, noting the seriousness of alleging fraud and subsequently abandoning the motion when the affiant recanted.

The court fixed costs at $20,000 plus disbursements, reflecting a reduction for delays caused by the plaintiff's counsel's health issues.

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.