Kevin Wynn Fisher

The court considered a motion for summary judgment by Jonathan Rosenthal, in his personal capacity, seeking dismissal of the oppression claim brought against him by Paragon Protection Ltd. and Rosencrantz & Guildenstern Inc. The central issue was whether the plaintiffs were proper "complainants" under section 245 of the Ontario Business Corporations Act and thus had standing to advance an oppression remedy claim.

The court found that the plaintiffs, not being current or former security holders or creditors of Tamstu-Harjon Holdings of Canada Limited, could not qualify as proper complainants based solely on their status as potential creditors arising from the litigation itself.

The motion for summary judgment was granted, dismissing the claim against Mr. Rosenthal personally.

The plaintiffs, TDCI Bracebridge Inc., Beaver Valley Holdings Limited, and Premiere Self Storage Inc., brought claims against Thomas Sheppard and Heel Strike Corporation for negligence, breach of fiduciary duty, and related causes of action arising from mortgage transactions and the management of a development property.

The defendants moved for summary judgment, arguing the claims were statute-barred and, in part, without merit.

The court dismissed the motion to dismiss the claims against Sheppard as statute-barred, but granted summary judgment dismissing the claims regarding payments to Heel Strike and the negligence claim by Premiere Self Storage Inc., finding no genuine issue requiring a trial on those issues.

This decision concerns cross-motions for production in a complex commercial dispute involving Paragon Protection Ltd., Tamstu-Harjon Holdings of Canada Limited, and related parties.

The central issue was the scope of privilege over various documents, including those arising from related estate litigation and legal advice received over several decades.

The court clarified the law on waiver of privilege, settlement privilege, and the production of documents, granting and denying relief in part to both sides.

The plaintiff, Ojohome Canada Ltd. o/a Houseful, sought an interlocutory injunction or mandatory order to restore its access to live feed data from the Toronto Region MLS service provided by TRREB.

The court denied the motion, finding that the plaintiff did not meet the high threshold for a mandatory order and that damages would be an adequate remedy.

The decision discusses the contractual and regulatory context of MLS data access and the requirements for injunctive relief.

The decision addresses motions by Stephen Moranis to set aside a 2013 settlement and to pursue a new, nearly identical action against the Toronto Real Estate Board and others.

The court finds that Moranis’s attempts to re-litigate settled and dismissed claims constitute an abuse of process.

The court dismisses both the motion to set aside the settlement and the new action, emphasizing the importance of finality in litigation and compliance with court-ordered timetables.

The court-appointed Liquidator of two companies sought advice and direction regarding the application of issue estoppel to claims by a shareholder, Christos Kommatas, and the payment of funds to another shareholder, George Vastis.

The core dispute involved whether Kommatas was precluded from seeking an order for the Liquidator to conduct a claims process as part of the liquidation, an issue previously raised and denied at trial.

The court found that Kommatas was indeed precluded by issue estoppel, as this specific issue was distinctly put before and decided against Kommatas in the prior trial.

The court also authorized the payment of $250,000 to Vastis as previously ordered.

The defendants, Jonathan Rosenthal and Benjamin Barrett, acting as Estate Trustees of Cyril Hirsch Rosenthal's Estate, brought a motion seeking an order to lift the deemed undertaking rule under Rule 30.1.01(8) for certain documents ("Pervez Productions") disclosed by Paragon Protection Ltd. in this proceeding.

They sought leave to use these documents in a related Estate Proceeding and a pending contempt motion against a former estate trustee, Syed Pervez.

The court granted the motion, finding that the interests of justice outweighed any potential prejudice to Paragon, especially given the close relationship between the proceedings and the fact that the documents were already ordered to be produced and were relevant.

The plaintiff's counsel sought removal as solicitor of record, and the plaintiff sought an adjournment of a breach of contract trial due to the plaintiff's failure to provide instructions or retain new counsel.

The defendant did not oppose the adjournment.

The court vacated the existing trial date and set a new peremptory trial date, emphasizing the plaintiff's responsibility to proceed with or without counsel, given the history of delays.

The defendant brought a motion seeking an order to permit a former employee, Ms. Cheryl Downing, to provide evidence by video conference from Texas during the trial.

The plaintiff opposed the motion, arguing that the defendant failed to provide direct evidence of the witness's unwillingness or unavailability to testify in person, and that the general principle of oral evidence in open court should be upheld.

The court dismissed the motion, finding the affidavit evidence, which relied on double hearsay regarding the witness's refusal to attend in person, to be non-compliant with Rule 39.01(4) of the Rules of Civil Procedure.

The court emphasized the importance of direct evidence for critical witnesses and the general principle of oral testimony in open court, as outlined in Rule 1.08.

The appellant appealed an order from the Superior Court of Justice dated June 27, 2017.

The Court of Appeal found that the appeal was not within its monetary jurisdiction and transferred the matter to the Divisional Court.

Costs were fixed in favour of the respondent.

The appellant law firm appealed an order of the motion judge that set aside a report and certificate of assessment.

The motion judge had ruled that the assessment officer erred by refusing to grant an adjournment when the respondent client failed to attend the first day of a scheduled five-day hearing due to a communication error by court staff, thereby depriving the respondent of procedural fairness.

The Court of Appeal allowed the appeal, finding that the assessment officer's decision to refuse the adjournment was reasonable and that the motion judge failed to give adequate deference to that decision.

The court considered the respondent's prior conduct, including failure to provide required documentation, cancellation of mediation, and late retention of counsel, in determining that the assessment officer properly balanced the circumstances in the interests of justice.

Following the dismissal of the plaintiff's action for damages via summary judgment, the defendant sought costs on a substantial or partial indemnity basis.

The plaintiff argued the claimed costs were excessive.

The court, applying the Courts of Justice Act and Rules of Civil Procedure, including the proportionality principle under Rule 1.04(1.1) and the objectives of Simplified Procedure (Rule 76), determined a fair and reasonable costs award.

The defendant's pre-litigation offer did not meet Rule 49 requirements for substantial indemnity, and the plaintiff's conduct was not reprehensible.

The court awarded the defendant $15,000 in partial indemnity costs, inclusive of disbursements and HST.

The plaintiff, a 59-year-old senior designer, brought a motion for summary judgment against his former employer, Thumper Massager Inc., alleging wrongful termination without proper notice or pay in lieu thereof after less than six months of probationary employment.

The plaintiff sought damages for pay in lieu of notice, expenses, and benefits.

The court found that the plaintiff was bound by the six-month probationary period in his employment contract and that the employer was entitled to dismiss a probationary employee without cause or notice, provided the assessment of suitability was not performed in bad faith.

The court determined that the defendant had provided a fair opportunity to the plaintiff and did not act in bad faith in terminating his employment.

Consequently, the plaintiff's claim was dismissed, and summary judgment was granted in favour of the defendant.

The plaintiff sought leave to appeal an order dismissing its motion for partial summary judgment, where the motion judge found insufficient evidence to precisely identify the intellectual property sought to be protected.

Applying the strict test for leave to appeal under Rule 62.02(4), the court found no conflicting decision on principle and no good reason to doubt the correctness of the order, despite minor issues with the motion judge's articulation of legal tests.

The court also determined that the matter did not raise questions of general or public importance.

The motion for leave to appeal was dismissed, and costs were awarded to the respondent.

The plaintiff, One Street Digital Inc. (OSD), brought a motion seeking a final order declaring its ownership of proprietary software ("Foundation Framework"), restraining the defendant, Berkeley Payment Solutions Inc. (BPS), from using or altering it, and requesting costs.

The court dismissed OSD's motion, finding that OSD failed to provide sufficient evidence to precisely identify the non-copyrighted proprietary software it claimed.

The court also determined that the relief sought was analogous to injunctive relief, and OSD did not demonstrate irreparable harm, as potential damages related to licensing fees and intellectual property value could be adequately assessed at trial.