Lauren Tomasich

The appellants, founders of International Capital Management Inc., sold their client portfolio to Optimize Inc. in 2017 through referral and non-competition agreements.

The agreements provided that Optimize would pay fees to ICM, but could demand repayment if more than 15% of the transferred assets were subsequently moved to entities associated with the Sanchez brothers.

When the appellants' associated firm, T.I.P. Wealth Manager Inc., received over 15% of the transferred assets, Optimize terminated the agreements and demanded repayment of all fees paid.

The motion judge granted summary judgment in favor of Optimize, finding no genuine issue for trial regarding the 15% threshold and characterizing the fee repayment clause as an enforceable forfeiture clause rather than an unenforceable penalty.

The appellants appealed, challenging both the summary judgment finding and the characterization of the remedy clause.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's analysis.

This decision concerns the sanction for contempt and the allocation of costs following findings that the defendants failed to comply with a court order (the "Turnover Order") in a complex commercial dispute.

The court awards full indemnity costs to the plaintiffs for the contempt motion, reduced by 25% due to Charter breaches, and substantial indemnity costs to the defendants for a successful Charter-based stay motion.

The court also addresses the principles of set-off and mutuality of debt in the context of competing costs awards.

The court-appointed Receiver sought approval for the sale of a property owned by the Debtor, 253 Queen Street Inc., and an Administration Order.

The sale was supported by secured creditors Homedale-Eagle Corporation and Sky Mortgage Corporation but opposed by the Debtor and its equity holders.

The opposing parties argued the purchase price was too low, the environmental indemnity was not assumed by the purchaser, and their beneficial interest in the property was not recognized.

The court applied the Soundair principles for approving sales in receivership, finding the Receiver acted providently and fairly.

The court rejected the claims of beneficial ownership based on trust law and the Land Titles Act, affirming the priority of registered mortgages over unregistered beneficial interests.

The Receiver's motion for approval of the sale and the Administration Order was granted.

The appellants appealed a trial judgment that granted declaratory relief to the respondents and dismissed the appellants' counterclaim for fees.

The appeal focused on whether management agreements were unauthorized and if the respondents were estopped from arguing their invalidity.

The Court of Appeal found no palpable and overriding error in the trial judge's interpretation of the agreements or her finding on estoppel.

The appeal was dismissed, and leave to appeal the costs order was also dismissed.

This endorsement addresses a contempt motion brought by the plaintiffs against the defendants for non-compliance with a prior trial decision, and a cross-motion by the defendants to stay the contempt motion due to alleged Charter breaches by the plaintiffs.

The court found the defendants in contempt for several failures to comply with the original order, including withholding records and refusing to execute necessary assignments.

However, the court also found that the plaintiffs committed Charter breaches (failure of timely disclosure and case splitting) in their prosecution of the contempt motion, which curtailed the evidence that could be relied upon.

The stay motion was dismissed, but the scope of contempt findings was limited due to the excluded evidence.

The court ordered the defendants to comply with outstanding obligations within 30 days.

This endorsement addresses the costs of an eight-day trial where the plaintiffs were entirely successful in their claims and in dismissing the defendants' counterclaim.

The plaintiffs sought substantial indemnity costs, arguing the defendants' conduct, including unsubstantiated fraud allegations and disclosure failures, warranted an elevated scale.

The defendants opposed the quantum and scale, and the plaintiffs also sought costs against the defendants' principal, Mr. Tajbakhsh, and an unidentified third-party funder.

The court awarded the plaintiffs $1 million in substantial indemnity costs, finding the defendants' conduct, while not amounting to fraud on the court, justified the elevated scale.

However, the court declined to award costs against Mr. Tajbakhsh personally or the third-party funder, as the high threshold for non-party costs (abuse of process or fraud) was not met.

The court also explicitly prohibited the defendants from using Limited Partnership funds to satisfy the costs award.

The plaintiffs, limited partners in three real estate development limited partnerships, sought declarations validating their special resolutions to remove and replace the original general partners.

The dispute arose after the original general partners issued capital calls to pay management fees to an affiliated company, which the plaintiffs argued were unauthorized.

The court found the capital calls were invalid as the management agreements were not approved by special resolution and the general partners failed to seek external financing first.

The court upheld the plaintiffs' special resolutions removing the original general partners due to multiple unremedied defaults, including failure to provide access to financial records, co-mingling of funds, and unauthorized related-party transactions.

The defendants' counterclaims were dismissed.

The individual defendants, comprising management and major label directors of Re:Sound, brought motions under Rules 21.01(1)(b) and 25.11(c) of the Rules of Civil Procedure to strike oppression claims asserted against them personally by ACTRA Performers’ Rights Society (ACTRA PRS).

ACTRA PRS alleged that the individual defendants, through their actions and inactions, caused Re:Sound to unfairly compete with ACTRA PRS, fail to adopt proper fee policies, neglect technological enhancements for equitable royalty distribution, and inadequately enforce tariffs, all for personal gain or to benefit their nominating organizations.

The court dismissed the motions, finding that the oppression claims were sufficiently pleaded, not plain and obvious to fail, and did not constitute an abuse of process.

The court applied the two-prong test for personal liability in oppression claims, concluding that the defendants were sufficiently implicated in the alleged oppressive conduct and that personal liability could be a fit remedy.

This appeal addressed the standard of proof for establishing the existence of an arbitration agreement when seeking a stay of court proceedings under the International Commercial Arbitration Act, 2017.

The appellant argued for a balance of probabilities standard, while the motion judge applied an "arguable case" standard.

The Court of Appeal affirmed that, consistent with the Supreme Court of Canada's decision in Peace River Hydro Partners v. Petrowest Corp., the "arguable case" standard applies to the technical prerequisites for a mandatory stay, including the existence of an arbitration agreement.

The Court found no palpable and overriding error in the motion judge's conclusion that an arbitration agreement was arguably in existence based on the evidence.

The appeal was dismissed, and the stay of proceedings in favour of arbitration was upheld.

The plaintiffs' motion for interlocutory injunctive relief and a certificate of pending litigation was dismissed.

The defendants and non-party Project Companies sought costs.

The plaintiffs opposed an award of costs or argued for a reduced amount, but failed to provide their own costs outline.

The court rejected the plaintiffs' arguments to deny costs or defer them to the trial judge.

Applying the principle that an attack on costs without providing one's own dockets is an 'attack in the air,' the court found the claimed amounts reasonable and awarded partial indemnity costs of $65,000 to the defendants and $39,000 to the Project Companies.

The plaintiffs, limited partners and their newly appointed general partners, moved for an interlocutory injunction to restrain the former general partners and non-party project companies from dealing with real estate development properties pending a governance trial.

They also sought leave to issue a certificate of pending litigation and to amend their statement of claim.

The court dismissed the motion, finding that an interlocutory injunction could not be granted against the non-party project companies because the plaintiffs had not claimed a permanent injunction against them, nor had they provided an undertaking in damages.

The request for a certificate of pending litigation was also denied as the plaintiffs, being shareholders of the project companies, did not have a triable issue for a direct interest in the properties.

The court dismissed two motions seeking to consolidate other proceedings with a main action scheduled for trial.

The first motion, brought by the defendants, sought to consolidate the main action with a separate claim against former employees for breach of fiduciary duty (the "Brampton action").

The second motion, brought by 320 Bronte Road Inc., sought to consolidate its newly commenced action (alleging misconduct by the plaintiffs) and the Brampton action with the main proceeding.

The court found that the issues in the various proceedings were distinct, and consolidation would cause significant delays to the fixed trial date.

It concluded that any theoretical benefits of judicial economy or avoiding inconsistent findings were outweighed by the practical concerns of delay and managing unwieldy, disparate claims.

The court also criticized 320 Bronte Road Inc. for failing to follow proper Commercial List scheduling protocols.

JH Whittaker & Sons Limited (Whittaker's) brought a motion to stay an action commenced by Husky Food Importers & Distributors Ltd. (Husky) and to refer Husky's claims to arbitration in New Zealand.

The motion was brought pursuant to the International Commercial Arbitration Act, 2017 and the UNCITRAL Model Law.

Husky argued that no valid arbitration agreement existed or that it was inoperative due to an inconsistency with a non-exclusive jurisdiction clause.

Applying the Haas framework, the court found it arguable that an arbitration agreement existed and that the dispute fell within its scope.

The court determined that the alleged inconsistency was not apparent and that the interpretation of the contract required a thorough review of the factual matrix, which is best left to the arbitrator.

The court also rejected the argument that a multiplicity of proceedings (arbitration against Whittaker's and litigation against another defendant) was a reason to refuse the stay, as the Model Law's stay provision is mandatory.

The motion to stay the action and refer it to arbitration was granted.

The plaintiffs in a proposed class action regarding a data breach sought court approval to settle and discontinue their claims against the defendant GitHub.

GitHub, an American corporation, had challenged the court's jurisdiction.

After an initial adjournment to address jurisdictional concerns, the plaintiffs submitted revised materials.

The court approved the settlement, finding that discontinuing the action against GitHub was fair, reasonable, and in the best interests of the class given the litigation risks, costs, and the fact that the remaining defendants had sufficient financial strength to meet any damages.

The plaintiffs in a proposed class action regarding a data breach sought court approval of a settlement with the defendant GitHub.

The court declined to approve the settlement as proposed, noting that it could not make a binding ruling on its own jurisdiction based on the consent of the parties, and that the substantive merits of the settlement (essentially a discontinuance) did not support approval at this stage.

At the parties' request, the motion was adjourned sine die.

In a proposed class action regarding a data breach, the plaintiffs brought a motion for an injunction to enjoin or supervise communications from the defendants to putative class members.

The defendants intended to send a notice to 51,000 affected individuals offering free credit monitoring.

The court dismissed the motion, finding no reason to intervene as the proposed notice did not affect the integrity of the class proceedings or compromise the putative class members' rights.

The plaintiffs in a proposed class action regarding a data breach brought motions to compel answers to questions refused on cross-examinations of two affiants and an omnibus motion to strike out various affidavits, factum paragraphs, and a sealing motion.

The court dismissed the refusals motions, finding the questions asked were beyond the narrow scope of the underlying motions (an injunction motion and a sealing motion) and were properly refused.

The court also dismissed the omnibus motion, finding no reason to strike the evidence or alter the timetable for the upcoming jurisdiction and certification motions.

The appellants, general partners in three limited partnerships, appealed an application judge's order requiring them to produce information to the respondent limited partners and to include specific material in annual and semi-annual reports.

The appellants argued procedural unfairness and that the order exceeded the limited partnership agreements (LPA).

The Court of Appeal dismissed the appeal, finding no procedural unfairness as the appellants had ample notice, and that the order was consistent with the broad information rights of limited partners under section 10 of the Limited Partnerships Act, R.S.O. 1990, c.

L.16, and did not prejudice the appellants.

The defendants brought a motion seeking an order compelling the Commissioner of Competition to provide further particulars of alleged misleading representations pleaded under paragraph 74.01(1)(a) of the Competition Act concerning premium text messaging services.

The defendants argued that the statement of claim failed to identify the specific alleged misrepresentations and related details necessary to prepare their defences.

The court held that the pleading sufficiently described the alleged deceptive marketing practices and that the requested particulars largely sought evidentiary details, which are properly obtained through discovery rather than particulars.

Given that the alleged representations could number in the hundreds or more and concerned matters within the defendants’ knowledge, the court exercised its discretion to refuse the request for further particulars.

The motion was therefore dismissed.