Kristian Borg Olivier

The Law Society brought a motion for an interlocutory order suspending or restricting the respondent lawyer's licence pending a conduct application.

The underlying application alleged the lawyer failed to respect human rights laws regarding a former employee and engaged in abusive communications and inappropriate social media postings.

The Tribunal found no evidence of current harm or significant risk of harm to the public or the administration of justice, noting that the passage of time had addressed previous concerns.

The motion was dismissed for lack of statutory authority under section 49.27(2) of the Law Society Act.

The Bank of Montreal brought an action to collect moneys due under a line of credit agreement.

The only issue was whether the defendant, Joseph Ieradi, entered into the agreement personally or on behalf of his corporations.

The court found that the agreement was personal, not corporate, and that the defendant was personally liable for the debt, despite the absence of the original written agreement.

The court relied on secondary evidence and the parties' conduct to reach its conclusion.

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.

The Court of Appeal for Ontario issued a costs endorsement following an appeal and motion for leave to appeal under the Companies' Creditors Arrangement Act.

The court fixed the costs of the appeal and the motion for leave to appeal at $25,000, inclusive of disbursements and taxes, payable by the appellant union to the respondent.

The appellant union appealed a decision finding that the CCAA judge had no jurisdiction to apply the American doctrine of equitable subordination to subordinate the claims of the respondent parent company.

The Court of Appeal dismissed the appeal, holding that the CCAA does not provide express or implied authority to apply equitable subordination, and that the doctrine does not fall within the scheme of the statute, which focuses on the implementation of a plan of arrangement or compromise rather than legislating a scheme of priorities.

In a CCAA restructuring proceeding, stakeholders sought disclosure of a settlement agreement between U.S. Steel, its Canadian subsidiary, and the Attorney General of Canada regarding undertakings under the Investment Canada Act.

The CCAA judge held that the agreement was entirely privileged under s. 36 of the ICA.

On appeal, the Court of Appeal found that while s. 36(5) protects the Crown from being compelled to disclose the agreement, this protection does not extend to the private corporations.

The appeal was allowed, and the issue of whether common law settlement privilege barred disclosure was remitted to the CCAA judge.

The moving defendant sought to vary a Mareva injunction to release funds for restitution in an unrelated criminal matter, criminal defence legal fees, and additional civil legal fees.

Applying the four-part test for variation of a Mareva order set out in Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology, the court held that the moving party failed to provide full and frank disclosure of his current assets and liabilities and did not establish that no other assets were available to pay the requested expenses.

The examination of the moving party revealed significant gaps, refusals to answer questions, and unexplained financial transactions, preventing the court from properly applying the governing test.

The court also noted that the proposed restitution payment and criminal defence fees were not clearly within the categories of living or legal expenses typically permitted under a Mareva order.

The motion was largely dismissed, with a limited variance permitting potential release of $25,000 for civil legal fees subject to strict proof of prior payments.

The plaintiff appealed the dismissal of its motion for a declaration that the defendant was in contempt of court for failing to preserve electronic records.

The defendant moved to quash the appeal to the Court of Appeal for lack of jurisdiction, arguing the order was interlocutory.

The Court of Appeal granted the motion to quash, holding that an order dismissing a contempt motion is interlocutory because the merits of the case remain to be determined, and therefore the appeal lies to the Divisional Court with leave.

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.

The moving defendants sought to set aside a Mareva injunction freezing their assets in a civil fraud action involving alleged fraudulent factoring transactions worth approximately $6.5 million.

The court considered whether the plaintiff continued to demonstrate a strong prima facie case of fraud and a real risk of asset dissipation.

Evidence showed that the moving defendants’ companies received substantial funds from entities involved in the fraud, that explanations for the transactions were unsupported by documentation, and that the alleged sale of a business appeared suspicious.

The court also noted conduct inconsistent with the injunction, including the use of undisclosed bank accounts.

The court held that the plaintiff continued to meet the requirements for a Mareva injunction.

The parties sought clarification on the settlement of an order following a judgment declaring a bulk sale void for non-compliance with the Bulk Sales Act.

The applicant trustee argued that the respondent purchaser's liability to account for the 'value of the stock in bulk' under s. 16(2) of the Act included the HST paid on the transaction.

The court applied the modern principle of statutory interpretation and held that the plain and ordinary meaning of 'value of the stock in bulk' does not include value-added taxes like HST.

The respondent's maximum liability was therefore capped at the purchase price excluding HST, less amounts paid to secured creditors.

The appellant law firm appealed an order of a Master dismissing its action against a former lawyer and his new firm for outstanding disbursements and legal fees.

The action was dismissed at a status hearing due to a two-year and four-month delay in advancing the litigation.

The Divisional Court found no palpable and overriding error in the Master's conclusion that the appellant failed to provide a satisfactory explanation for the delay and failed to demonstrate a lack of prejudice to the respondents.

The appeal was dismissed.

The applicant players' association brought an urgent application for judicial review of an arbitrator's decision declaring himself functus officio.

The arbitrator had refused to make a decision in accordance with the court's earlier reasons quashing his previous decision regarding a player's contract option.

The court granted the application, abridged the time for service, declared the arbitrator was not functus, and remitted the matter back to him to render a decision on the basis that the respondent club did not validly exercise the option to require the player to play a third year.

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.