Kevin Wynn Fisher

The appellant appealed the dismissal of his motion to set aside a 2013 consent dismissal and settlement agreement, as well as the dismissal of a new 2023 action claiming the same relief.

The motion judge found the appellant's motion and the new action were transparent attempts to relitigate issues that had been settled over a decade prior.

The Court of Appeal upheld the motion judge's decision, confirming that the doctrine of abuse of process prevents the relitigation of settled issues and that the interests of finality prevail absent contractual problems like fraud or duress.

The appeal was dismissed with costs.

The appellants appealed a partial summary judgment decision dismissing their oppression claim against the respondent in his personal capacity.

The motion judge had found that the appellants did not qualify as 'complainants' under section 245 of the Business Corporations Act, as they were not creditors and their status as potential creditors did not make them proper persons to bring an oppression claim.

The Divisional Court upheld the motion judge's decision, finding no palpable and overriding error of fact or error of law.

The court confirmed that the motion judge properly applied the test for complainant status and the framework for partial summary judgment.

The appeal was dismissed with costs.

The moving parties brought a motion for leave to appeal paragraphs 7-11 of the order of Penny J. dated March 24, 2025.

The Divisional Court dismissed the motion for leave to appeal and ordered that there be no costs.

The moving parties brought a motion for leave to appeal the decision of Penny J. dated March 24, 2025.

The Divisional Court dismissed the motion for leave to appeal with no order as to costs.

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 appellants abandoned their appeal of an order appointing a liquidator to wind up their business.

The respondents sought $32,764.35 in costs for work done prior to the abandonment, despite not having filed a response to the appeal.

The court applied Rule 61.14(4) of the Rules of Civil Procedure, which provides that an abandoned appeal shall be without costs if no response was filed.

Noting that the respondents had already received costs for a related stay motion and failed to provide detailed time records distinguishing the work, the court declined to deviate from the general rule and awarded no costs.

The plaintiff, a senior executive at RBC, was dismissed following an investigation into his financial dealings with a subordinate.

He sued for wrongful dismissal, claiming entitlement to 24 months' reasonable notice under Ontario common law.

RBC argued the employment contract was governed by UK law, which limited notice to 12 weeks, and alternatively pleaded after-acquired cause based on the plaintiff's dishonesty during the investigation.

The court held that UK law governed the contract and the plaintiff had received his contractual notice.

Furthermore, the court found that RBC had established after-acquired cause because the plaintiff deliberately withheld material information about his real estate investments with the subordinate during the investigation.

The plaintiff's claim was dismissed, save for unpaid vested compensation, and RBC's counterclaim for mistaken tax overpayments was allowed.

The plaintiffs and defendants were equal shareholders in two closely held corporations that owned and operated gas stations and a driving range.

Following a breakdown in their relationship and a deadlock over succession planning and the division of corporate assets, both parties alleged oppressive conduct against the other.

The court found that both shareholders had engaged in conduct that unfairly disregarded the other's interests.

Given the irreparable breakdown of trust and the deadlock, the court ordered the winding up and liquidation of the companies by a court-appointed receiver.

The court dismissed the claims of the plaintiff's wife, finding she was not a shareholder or officer, but awarded the plaintiff $250,000 in compensation for his historical management of the companies.

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 employee appealed a summary judgment dismissing his wrongful dismissal action against the respondent employer.

The appellant was terminated without cause after less than six months of employment and claimed he was induced to leave his previous secure job.

The Divisional Court upheld the motion judge's findings that the appellant was bound by a clear six-month probation clause in his signed employment offer, which negated any claim of inducement.

The court also found no bad faith, concluding the employer provided a fair opportunity for the appellant to demonstrate his suitability during the probationary period.

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 plaintiff brought a motion to enforce a settlement reached on February 3, 2017, under which the defendants agreed to pay $10,000 plus costs to be assessed, argued, or negotiated.

The court noted that a motion to enforce was unnecessary as the settlement was conceded, and the only remaining issue was the quantum of costs.

Applying principles of proportionality and the factors under Rule 57.01, the court fixed the plaintiff's costs of the action at $33,414.31 and awarded $1,500 for the costs of the motion.

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.