L. A. Pattillo

The defendants brought a motion under Rules 21.01(1)(b), 25.06, and 25.11 of the Rules of Civil Procedure to strike the plaintiffs’ statement of claim alleging breach of contract, breach of fiduciary duty, fraud, fraudulent misrepresentation, conversion, conspiracy, unjust enrichment, and breach of trust.

The court held that most claims were inadequately pleaded and failed to disclose material facts necessary to establish the alleged causes of action, particularly against the individual defendants as directing minds of corporate entities.

Claims for fraud, misrepresentation, conspiracy, conversion, and unjust enrichment were struck for failure to plead material facts, and allegations supporting piercing the corporate veil were also insufficient.

The only potentially viable claims were breach of contract against one corporate defendant and breach of a written trust agreement regarding certain land.

The entire claim was struck with leave granted to file a further amended pleading limited to those causes of action.

Competing motions were brought to vary a Mareva injunction to permit access to frozen funds for legal expenses.

The plaintiffs sought $1.5 million from a frozen bank account in their name, while the defendants sought $534,000 from other frozen assets.

The court reviewed the legal test governing access to funds subject to a Mareva injunction and held that the test for defendants seeking release of funds did not apply in the same way when plaintiffs sought access to funds they claimed to own.

The court found the plaintiffs had established a sufficient proprietary interest in the account but exercised discretion to limit access due to credibility concerns and the procedural history of multiple collateral proceedings.

Partial funding was granted to both sides to permit fair participation in the litigation.

The plaintiff brought a motion to amend its Amended Fresh as Amended Statement of Claim to add a claim for punitive and exemplary damages arising from the defendant insurer’s handling of an insurance claim.

The defendant opposed the amendment, arguing that it introduced a new cause of action outside the applicable limitation period and that no consent had been provided.

The court held that the proposed amendment alleged a new cause of action based on breach of a duty of good faith in the investigation and assessment of the claim.

The existing pleadings did not contain sufficient factual allegations to support punitive damages without the proposed amendment.

As the amendment was brought well after the limitation period expired and did not merely add an alternative remedy based on already pleaded facts, leave to amend was refused.

Competing motions arose regarding funding the care of an incapable elderly woman under the Substitute Decisions Act.

One child sought to increase a line of credit secured against the incapable person’s Toronto condominium to fund ongoing care, while other siblings sought an order to sell a Florida condominium allegedly jointly owned with one sibling.

The court held that the urgent need to maintain care justified extending the line of credit, while disputes concerning ownership, expenses, occupation rent, and tax consequences relating to the Florida property required further evidentiary determination.

A bifurcated hearing was ordered to resolve those issues before determining whether the Florida property should be sold.

In a court‑appointed receivership over payroll service companies, the receiver sought a declaration that a customer breached the stay provision of the receivership order by recalling funds previously transferred through a pre‑authorized debit.

The funds had already been deposited into the debtor’s consolidated account prior to the receivership order but were later reversed after the customer learned of the receivership.

The court held that once deposited, the funds constituted “Property” of the debtor within the meaning of the receivership order, even if intended for payroll.

By requesting reimbursement through its bank after receiving notice of the receivership, the customer exercised a remedy affecting the debtor’s property and breached the stay.

The court ordered repayment of the funds to the receiver with interest, while allowing the customer to prove a claim in the receivership distribution.

The plaintiffs brought a motion for summary judgment seeking a declaration that a binding agreement of purchase and sale was reached in September 2012 to divide four jointly-owned healthcare businesses.

The defendants brought a cross-motion for ancillary relief, including the removal of directors and the appointment of a receiver.

The court dismissed both motions, finding that the parties had not agreed on all essential terms of the separation and that the draft agreement was subject to independent legal review which never occurred.

The court held that the ancillary relief sought by both parties was premature and should be resolved at trial.

The plaintiffs sought injunctive relief restraining a shareholder from selling shares of her holding company that indirectly owned shares in a family‑controlled corporation, and from disclosing corporate financial information.

The defendants brought a cross‑motion for summary judgment dismissing the claim and sought partial summary judgment on a counterclaim seeking various corporate governance orders under the Ontario Business Corporations Act.

The court held that although the separation agreement did not expressly restrict sales of the holding company shares, an implied term prevented either party from disposing of their interests in the holding companies without the other’s consent.

A permanent injunction was granted preventing the sale of the holding company shares without consent.

The court rejected restrictions on the shareholder’s access to financial statements but granted limited corporate governance relief including annual meetings, financial statement delivery, and a trust accounting.

The moving parties, construction lien creditors of the Mady Group of Companies, brought a motion seeking to lift a CCAA stay of proceedings, amend their statements of claim, and obtain a Mareva injunction against several individuals and corporations.

The court dismissed the motion, finding that the moving parties failed to make full and fair disclosure, failed to establish a strong prima facie case of fraud or breach of trust, and provided no evidence of a risk of dissipation or removal of assets from the jurisdiction.

The defendant MasterCard brought a motion under Rule 21.01(1)(b) to strike the plaintiff's statement of claim in its entirety for disclosing no reasonable cause of action.

The plaintiff, a footwear retailer, sued MasterCard and its payment processor after MasterCard imposed nearly $5 million in assessments following an alleged data breach.

The court dismissed the motion to strike the claims for intentional interference with contractual rights, unlawful interference with economic relations, negligence, unjust enrichment, conversion, and declaratory relief, finding they had a reasonable prospect of success.

The court struck the claims for conspiracy (with leave to amend) and breach of the duty of good faith (without leave).

The applicant sought leave under s. 42(4)6 of the Substitute Decisions Act to require an attorney for property to pass her accounts in relation to the finances of an incapable person.

The court applied the test requiring a genuine interest in the incapable person’s welfare and a reasonable basis to believe a court might order the passing of accounts.

The court found serious concerns about the applicant’s relationship to the incapable person and concluded the evidence suggested the application was influenced by the incapable person’s spouse rather than the applicant’s independent concern.

The court also found no evidence of mismanagement, noting the incapable person’s needs were being adequately met and financial decisions were prudent.

Leave to bring the application was refused and substantial indemnity costs were awarded to the respondent.

The accused was convicted of multiple offences including committing offences for the benefit of a criminal organization, instructing the commission of offences for a criminal organization, firearms possession and transfer offences, and trafficking in heroin.

The evidence, largely derived from wiretaps and surveillance, established that the accused was a leader of a street gang involved in organized drug trafficking and firearms activity across multiple jurisdictions.

The court considered aggravating factors including the scale of the trafficking enterprise, leadership role within the organization, and involvement of firearms, as well as mitigating factors including youth, lack of prior record, and expressions of remorse.

Applying principles of denunciation, deterrence, and rehabilitation, and considering the totality principle, the court imposed a global penitentiary sentence.

Motions were brought to quash summonses issued by a litigant seeking to compel opposing counsel and a proposed estate trustee during litigation to testify in support of a motion alleging judicial duress in prior settlement proceedings.

The court considered the stringent requirements for summoning opposing counsel as witnesses, emphasizing that such a step requires a high degree of materiality and necessity and should be avoided unless demanded by the administration of justice.

The court found the evidence sought was neither material nor necessary, noting that the moving party had already filed affidavits, transcripts, and audio recordings addressing the relevant events.

The proposed examinations were characterized as a fishing expedition and potentially tactical, as they would force opposing counsel to withdraw and cause delay and expense.

The summonses were quashed and substantial indemnity costs were awarded.

The applicant, charged with firearms offences, brought a Charter application challenging the search of his residence, the seizure of his cell phone, and the search of text messages on a co-accused's phone.

The court found the search warrant for the residence was overly broad and lacked reasonable grounds, violating s. 8.

The seizure of the applicant's phone was also unauthorized.

Evidence from the residence and the applicant's phone was excluded under s. 24(2).

However, the court held the applicant had no reasonable expectation of privacy in text messages sent to the co-accused's phone, dismissing that part of the application for lack of standing.

Following a criminal trial in which the accused was convicted of one count of money laundering and acquitted of other fraud-related charges, the accused brought a motion prior to sentencing seeking to reopen the defence case and introduce additional medical evidence.

The proposed evidence concerned alleged cognitive effects of the medication Tramacet in combination with an ADHD diagnosis, which the accused argued may have affected his judgment at the time of the offences.

Applying the test for reopening a case after adjudication from Kowall and subsequent appellate authorities, the court held that the evidence could have been adduced at trial with reasonable diligence and that the accused’s assertions about medication side effects lacked credibility in light of contemporaneous medical records.

The court also found the application was effectively an attempt to reverse a tactical defence decision made at trial.

The motion to reopen the trial and admit fresh evidence was dismissed.

The accused brought an application in the nature of certiorari seeking to quash a preliminary inquiry committal for trial on charges of trafficking in cocaine and possession of proceeds of crime.

The accused argued the preliminary inquiry judge exceeded jurisdiction because the only identification evidence consisted of in‑dock identification by police witnesses.

The court held that while in‑dock identification evidence is inherently dangerous, it is not presumptively inadmissible and may constitute direct evidence for the purposes of the committal test.

Applying the test from United States of America v. Sheppard and R. v. Arcuri, the court found there was some evidence upon which a properly instructed jury, acting reasonably, could convict.

The preliminary inquiry judge therefore acted within jurisdiction in committing the accused for trial.

The applicant sought mandamus compelling issuance of criminal process after a justice of the peace refused to issue process under s. 507(1) of the Criminal Code for proposed charges of theft over $5,000, fraud over $5,000, and forgery against a third party.

The court reviewed whether the justice of the peace committed jurisdictional error or failed to exercise discretion judicially in concluding that no prima facie case existed.

The evidence consisted largely of the applicant’s testimony concerning a company cheque and invoices allegedly connected to fraudulent conduct.

The court held the record contained no evidence establishing essential elements of the alleged offences, including personal receipt of funds, fraudulent deprivation, or creation of false documents by the proposed accused.

The justice of the peace properly exercised the gatekeeping function under s. 507(1), and mandamus was not available.

The Crown applied to have the offender designated a dangerous offender following his conviction for assault causing bodily harm and breaches of a recognizance.

The offender had a lengthy criminal record involving violence and sexual assault, and suffered from schizophrenia and antisocial personality disorder.

Three expert witnesses agreed the offender was a high risk to reoffend violently and sexually, but disagreed on whether his risk could be managed in the community.

The court found that the offender met the criteria for a dangerous offender and that his risk could not be adequately controlled in the community under a long term supervision order due to his history of non-compliance with medication and court orders.

The offender was designated a dangerous offender and sentenced to an indeterminate period of detention in a penitentiary.

The applicants sought a declaration that they validly exercised a shotgun buy/sell provision in a shareholders agreement, requiring the respondents to transfer their shares in the corporation.

The respondents argued the shotgun notice was invalid because it was issued jointly by two shareholders, and alternatively, that the applicants repudiated the agreement by demanding a release not required by the contract.

The court held that the shotgun provision, interpreted in its factual matrix, allowed for joint exercise by the applicants as a single shareholder group.

The court further found that the applicants did not repudiate the agreement, as they were ready and willing to close without the disputed release, whereas the respondents refused to close.

The application was granted, and the respondents were ordered to transfer their shares.

The applicants sought a determination of the shareholders of 7538715 Canada Ltd. and whether the respondent Mohammad Petgar was an authorized director.

The applicants claimed they owned 100% of the shares and provided all the investment money.

The respondent claimed he and his estranged wife, the primary applicant, each owned 50% of the shares.

The court reviewed documentary evidence, including a shareholders agreement and bank guarantees, and found that the respondent and his estranged wife were each 50% shareholders.

The court also found that the respondent was an authorized director of the company.

Former directors, officers, and consultants of Look Communications Inc. sought interim advancement of their legal fees to defend against an action brought by Look alleging breach of fiduciary duty regarding bonus and equity cancellation payments.

The court held that s. 124(4) of the CBCA applies to actions brought directly by the corporation, requiring court approval for advancement.

The court found Look established a strong prima facie case of mala fides against the directors and officers, rebutting the presumption of good faith.

Advancement was denied for all applicants except one employee, Dolgonos, whose entitlement arose under an indemnity agreement not subject to s. 124(4).