Kristian Borg-Olivier

This penalty decision follows a finding of contempt against Mark Mendl, former counsel to the Ontario Public Service Employees Union (OPSEU), for failing to comply with a court order to produce records and information regarding $3.7 million in union funds.

The court reviews the history of non-compliance, the steps taken by Mendl to eventually purge his contempt, and the aggravating and mitigating factors, including Mendl’s substance abuse and subsequent cooperation.

The court considers the purposes of civil contempt penalties, relevant case law, and the impact of Mendl’s suspension from legal practice.

Ultimately, the court imposes no further penalty, finding that Mendl’s incarceration, suspension, and agreement to pay costs suffice.

The Ontario Public Service Employees Union (OPSEU) brought a motion for civil contempt against its former lawyer, Mark Mendl and his professional corporation, for failing to comply with a previous court order to produce client files and financial records related to suspicious payments totaling $3.7 million.

Despite multiple requests and court appearances, Mendl deliberately refused to provide the ordered documentation.

The court found Mendl in contempt beyond a reasonable doubt, emphasizing his duty as an officer of the court.

A penalty hearing was scheduled, and Mendl was ordered to attend in person, with an opportunity to purge his contempt beforehand.

The plaintiff brought an action for wrongful dismissal against four family-owned corporate defendants, claiming they were common employers.

The defendants argued the plaintiff was an independent contractor and, alternatively, was dismissed for cause due to absenteeism.

The court found the plaintiff was an employee, not an independent contractor, and that his dismissal was a retaliatory response to his questioning of the family business management, not for cause.

The court applied the common employer doctrine, holding all four corporate defendants jointly and severally liable.

The plaintiff was awarded damages representing a 22-month reasonable notice period, less the 6.5 months already paid, totaling $119,860.

This is a costs decision on appeal from a trial judgment dismissing the appellant's action.

The respondents were entirely successful on appeal and sought costs on a partial indemnity basis.

West Face Capital Inc. sought $250,000 in costs while Brandon Moyse sought $149,905.18.

The appellant argued for reduced costs amounts.

The Court of Appeal awarded West Face $200,000 and Moyse $100,000, both inclusive of disbursements and HST, considering the respondents' complete success, the nature of the appeal involving a large record and detailed factual re-litigation, and costs thrown away due to an unnecessary adjournment.

Appeal from a trial judgment dismissing the appellant's action for misuse of confidential information and spoliation.

The appellant alleged that the respondent West Face Capital Inc. improperly obtained and used confidential information about the appellant's bid to acquire WIND Mobile Inc., allegedly obtained from a former employee who moved to West Face.

The trial judge dismissed all claims, finding that the appellant failed to prove that confidential information was provided to West Face or that any such information was used in West Face's successful competing bid.

The trial judge also found that the appellant's choice to terminate negotiations due to a break fee demand, rather than West Face's competing bid, caused the failure of the appellant's acquisition.

The Court of Appeal upheld the trial judgment and dismissed the appeal, as well as the application for leave to appeal the costs orders.

The applicant sought an order under Rule 45.02 of the Ontario Rules of Civil Procedure to compel the respondents to pay escrowed funds into court as security for a claim being pursued in the Court of Queen's Bench of Alberta.

The underlying dispute involved alleged latent defects in a real estate transaction.

The court questioned its jurisdiction to grant interlocutory relief under Rule 45.02 when no underlying proceeding was before the Ontario court.

The court ultimately dismissed the application, finding that Rule 45.02 does not provide a freestanding cause of action for freezing funds in support of an action in another jurisdiction, and even if it did, judicial comity dictated that the Alberta court should be approached first for such relief.

Following the dismissal of motions seeking an interlocutory voting injunction, an imaging order, and a contempt order, the court determined the appropriate costs award.

The unsuccessful moving party argued that most costs should be deferred to trial because the evidence overlapped with issues to be litigated on the merits.

The court rejected this submission, applying the principle that a successful defendant resisting interlocutory injunctive relief is generally entitled to costs payable forthwith.

After considering factors under Rule 57.01 of the Rules of Civil Procedure, including the high stakes of the motions, the absence of legal complexity, and certain conduct contributing to the contempt motion, the court fixed reduced partial indemnity costs for each successful defendant.

The moving party sought three forms of relief in a commercial dispute involving alleged misuse of confidential information: an interlocutory injunction preventing a shareholder from voting its 35% interest in a telecommunications company, an order authorizing forensic imaging and review of the defendants’ corporate servers and devices, and a finding of contempt for alleged breach of a prior consent order.

The court held that the requested voting injunction could not be granted because the moving party failed to provide the mandatory undertaking as to damages under Rule 40.03 of the Rules of Civil Procedure and failed to demonstrate irreparable harm or a favourable balance of convenience.

The requested imaging order was refused because there was no evidence that the responding party had failed to comply with its document production obligations or attempted to conceal or destroy electronic evidence.

The contempt motion also failed because the alleged acts—deleting personal browsing history and installing software capable of secure deletion—did not establish beyond a reasonable doubt that relevant information had been intentionally destroyed in breach of the consent order.

Following earlier reasons on a motion, the court addressed the issue of costs under s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure.

The applicant sought partial indemnity costs based on a bill totalling over $15,000.

The court reviewed the parties’ submissions, deleted certain claimed items not directly related to the motion, and considered the principle that costs should be fair and reasonably expected by the unsuccessful party rather than strictly reflecting actual expenditures.

After comparing both parties’ proposed bills of costs and exercising its discretion, the court fixed a reduced amount.

Partial indemnity costs were awarded to the moving party in the sum of $10,000 inclusive of fees, disbursements, and HST.

The applicant sought an order compelling the respondent to answer questions during an Ontario examination conducted pursuant to a Letter of Request issued by a California court in a civil securities fraud action.

The respondent refused to answer numerous questions, invoking the Fifth Amendment to the United States Constitution due to concerns that her answers could be used in a potential U.S. criminal investigation.

The court held that evidentiary procedures under a Letter of Request are governed by Canadian law, not foreign constitutional protections.

Concerns regarding the potential use of compelled testimony in U.S. criminal proceedings were matters for the American courts to determine.

The respondent was therefore required to answer the questions notwithstanding the asserted Fifth Amendment privilege.

The plaintiff sought an interim injunction and preservation order against former employees who started a competing realty tax business, alleging breach of non-competition and non-solicitation agreements.

The court found a serious issue to be tried but concluded the plaintiff failed to demonstrate irreparable harm, as any lost sales or market share could be compensated in damages.

The balance of convenience favoured the defendants.

The court dismissed the motion for an interim injunction and forensic inspection but ordered the defendants to preserve any documents and devices belonging to the plaintiff.

The court determined the appropriate costs award following objections raised by the respondents to a letter of request issued from the State of California seeking evidence.

The respondents raised legitimate concerns regarding the breadth and time frame of the evidence sought, prompting the applicant to significantly narrow the request and limit the potential use of the evidence.

In deciding costs, the court considered the conduct of the parties and comparable authority involving similar requests for evidence in aid of foreign proceedings.

Although both sides advanced cost submissions on a partial indemnity scale, the court awarded a reduced lump-sum costs amount to the applicant.