Kimberly Boara Alexander

The defendants, TD Waterhouse Canada Inc. and The Toronto-Dominion Bank, brought a motion to strike several paragraphs from the plaintiff, David G. Durno's, Statement of Claim.

The grounds for the motion were that the disputed claims failed to disclose a reasonable cause of action and constituted an abuse of process or an improper collateral attack on Durno's settlement agreement with the Investment Industry Regulatory Organization of Canada (IIROC) and IIROC's approval decision.

The plaintiff argued that his claims for breach of employment contract were not a collateral attack on the settlement, as he was not relitigating admissions but seeking damages for the defendants' alleged failure to supervise and alert him to regulatory concerns.

The court dismissed the defendants' motion, finding that the disputed claims related to a breach of contract and did not constitute an abuse of process or a collateral attack.

The plaintiff in a wrongful dismissal action brought a motion to strike two paragraphs of the defendant's statement of defence, arguing they improperly referred to a without prejudice termination offer.

The court dismissed the motion, finding that because the plaintiff pleaded bad faith and claimed punitive damages regarding the defendant's conduct at termination, the defendant was entitled to plead the termination offer to answer those allegations.

The termination offer was deemed relevant and an exception to settlement privilege applied.

Costs decision following two motions in an employment action alleging constructive dismissal and entitlement to a bonus.

The defendant successfully moved to set aside a noting in default and successfully resisted the plaintiff’s summary judgment motion concerning whether a bonus should be paid entirely in cash or partially through restricted share units.

The court found that plaintiff’s counsel improperly refused to consent to setting aside the noting in default, unnecessarily increasing litigation costs.

Substantial indemnity costs of $9,500 were awarded for the motion to set aside the noting in default.

Partial indemnity costs of $20,000 were awarded for the summary judgment motion.

Following the dismissal of an action and related summary judgment proceedings, the successful defendants sought substantial partial indemnity costs against the plaintiffs.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure and assessed the reasonableness of the claimed fees, hourly rates, and the nature of work performed.

The court emphasized that costs awards should relate to steps authorized by the rules and excluded various client communications and strategic consultations that were not directly tied to procedural steps in the litigation.

Significant reductions were applied to certain categories of claimed work, including general preparation and work associated with abandoned or unnecessary motions.

The court ultimately fixed global cost awards payable by the plaintiffs to each set of defendants.

The plaintiff, a former executive who resigned and claimed constructive dismissal, brought a motion for summary judgment for his unpaid 2011 bonus.

The parties agreed on the bonus amount, and the bank paid two-thirds in cash prior to the motion.

The issue was whether the bank could pay the remaining one-third in restricted share units (RSUs) as per its past practice and the governing plan, or if the plaintiff was entitled to cash.

The court held that the plan did not prohibit the bank from granting RSUs to a former employee, and the plaintiff was not entitled to demand the remaining balance in cash.

The applicant shareholder brought a motion under s.248 of the Business Corporations Act seeking relief arising from alleged oppressive conduct and persistent non-compliance with prior court orders by the respondent shareholder and director of two corporations.

The court reviewed the history of litigation, including earlier orders requiring equalization of shareholder investment and corporate governance measures.

The evidence demonstrated that the respondent had ignored multiple court orders, failed to produce required financial disclosure, and engaged in conduct undermining the corporations’ operations.

Applying the oppression remedy principles under the OBCA, the court exercised its broad discretion to rectify the situation.

The respondent was removed as director and officer, the applicant was vested with sole control of the corporations subject to accounting obligations, and additional financial and disclosure orders were imposed.