Benoit M. Duchesne

The moving party defendants brought a motion for an order requiring the plaintiff to provide particulars of its allegations of misrepresentation and intent, and to produce documents for inspection.

The plaintiff opposed, arguing the defendants already had the information and documents.

The court granted the motion in part, finding that the statement of claim did not satisfy the elevated level of particularity required under Rule 25.06(8) for pleadings of misrepresentation.

The court ordered the plaintiff to provide certain particulars and to produce the referenced documents for inspection.

The court dismissed the defendants' request to set a timetable for a potential motion to remove their counsel, finding it premature.

The court also granted the plaintiff's motion to validate service on one of the defendants.

In a civil action concerning easements and rights of way over farm properties, the moving party (defendants) brought a motion seeking to prohibit the plaintiff from tendering updated real estate appraisal evidence, to strike a paragraph of an affidavit as hearsay, and to compel the production of accounting records.

The case management judge declined to prohibit the appraisal evidence as the plaintiff confirmed no further report would be delivered, and extended the deadline for responding evidence.

The judge also found it premature to strike the affidavit paragraph, leaving the hearsay issue for trial.

Finally, the judge ordered the plaintiff to produce its balance sheets for 2015-2020, deferring any further production requests.

The applicant estate trustee sought costs following a successful application to pass her accounts.

The respondent beneficiaries had raised over 300 objections, abandoning most at the hearing, and maintained unfounded allegations of theft and fraud against the trustee.

The court found the respondents' conduct reprehensible and ordered them to personally pay the trustee's costs on a substantial indemnity basis, fixed at $325,000.

On a contested passing of accounts arising from a complex cross-border intestacy involving real property, artworks, and personal property located in Mexico, the court held that an estate trustee is not required to produce a written receipt for every expense if accurate accounts, sworn explanations, and corroborating records establish that the disbursements were reasonably incurred for the estate’s benefit.

Applying the ordinary prudence and diligence standard from trustee accounting jurisprudence, the court rejected extensive objections alleging mismanagement, misappropriation, and failure to follow the wishes of the majority beneficiaries.

Most challenged expenses, including memorial costs, travel, staffing, legal fees, and marketing assistance, were approved, subject to limited disallowances and correction of a $50,000 accounting error.

Trustee compensation was fixed at $200,000 exclusive of HST using the tariff cross-checked against the five established compensation factors.

Gowling WLG (Canada) LLP ("Gowlings") brought a motion for a charging order on settlement funds recovered by their former client, Michael Dervin, in his personal injury action.

Dervin had terminated Gowlings' retainer and subsequently settled the action directly with the defendants for $1 million.

The court dismissed Gowlings' motion, finding that their efforts were not "substantial and integral" enough to be considered instrumental in the recovery of the funds, especially considering the extensive prior work by Dervin's previous counsel and the proximity of the final settlement to an earlier offer made before Gowlings' involvement.

The court also dismissed Dervin's request for costs as a self-represented litigant, as he failed to demonstrate any foregone remunerative activity.

This case conference order addresses procedural and factual disputes in an ongoing insolvency proceeding involving Eureka 93 Inc. and three related companies under the BIA.

The noteholders (Dominion Capital LLC) had postponed creditor votes on proposals, seeking further investigations and information regarding asset valuations and the validity of their claims.

The debtors challenged the noteholders' status as creditors for one proposal.

The court provided directions to resolve the gridlock, ordering the Proposal Trustee to assess and value the noteholders' proofs of claim, setting deadlines for examinations of witnesses, and mandating the completion of votes on the proposals.

The court emphasized the Trustee's role in validating claims and cautioned against allowing peripheral issues to unduly complicate the summary insolvency process.

The applicant debtors brought an unopposed motion to extend the time for making a proposal under the Bankruptcy and Insolvency Act.

The court granted the extension to June 12, 2020, finding that the criteria of good faith, diligence, lack of prejudice, and potential viability were met, with an improved outlook despite COVID-19 closures.

The decision also included observations on the conduct of virtual hearings during the COVID-19 emergency, emphasizing the importance of notice to all parties and upholding the open court principle, even when public interest is low or a sealing order is in place.

The court flagged the need for more robust solutions for public access to virtual hearings in the future.

The appellant, acting as tutor to an absentee and liquidator of his succession, sought to retain pension payments received on behalf of the absentee during the period he was presumed alive under art. 85 of the Civil Code of Québec.

The absentee's remains were discovered nearly six years after his disappearance, and his true date of death was established as the day after he disappeared.

The majority held that the rebuttal of the presumption of life operates retroactively, extinguishing the absentee's entitlement to pension payments from his true date of death, and that the respondent's claim for receipt of a payment not due under art. 1491 C.C.Q. succeeded when assessed retrospectively.

The dissent would have allowed the appeal, finding that the rebuttal of the presumption of life operates only prospectively and that the traditional requirements of art. 1491 C.C.Q. were not satisfied.

The appellants appealed a trial judgment finding them liable for a fuel oil spill at the respondents' home.

The trial judge found that the appellants negligently failed to identify that the respondents' fuel oil tank, which was labelled for indoor use, was installed outdoors, and failed to tag it as non-compliant.

The appellants argued the trial judge erred by applying the 'material contribution' test for causation instead of the 'but for' test.

The Court of Appeal dismissed the appeal, holding that while the trial judge articulated the wrong test, she effectively applied the 'but for' test by finding the spill would not have occurred if the appellants had fulfilled their regulatory obligations.

The Court also upheld the trial judge's apportionment of liability, finding of contributory negligence, and damages assessment.

Following a 3-day hearing to determine the valuation of the plaintiff's 50% shareholding interest in a group of companies, the court awarded costs to the defendants.

The court found the hearing was unnecessary as the plaintiff had unsuccessfully challenged a court-appointed business valuator's report and the defendants had made a reasonable buyout offer prior to the hearing.

Costs were awarded to the defendants on a substantial indemnity scale in the amount of $89,039.24, plus $25,000 for a portion of the valuator's fees.

The court was tasked with determining the fair market value of Thomas Scullion's 50% shareholding in the Munro & Scullion group of companies as a remedy for corporate deadlock and oppression.

The parties had agreed that Paul Munro would purchase Scullion's interest at fair market value, which was to be established by the court.

While the parties generally agreed with a court-appointed valuator's mid-range valuation of $4,348,800, Scullion sought to increase this based on three specific issues: bonding, catch basin revenues, and property valuations.

The court rejected Scullion's arguments, finding his claims speculative or based on flawed appraisal methodologies, and ultimately accepted the original valuation.

The applicants, representing taxi drivers and plate holders, sought to quash the City of Ottawa's 2016 Vehicle-for-Hire By-law, which created a separate regulatory regime for Private Transportation Companies (PTCs) like Uber.

The applicants argued the by-law was enacted in bad faith, granted an illegal bonus to PTCs, and was ultra vires.

The court dismissed the majority of the application, finding the City conducted extensive consultation, acted within its broad regulatory powers, and did not grant an undue advantage.

However, the court severed and quashed two specific provisions that were added to the by-law without notice to the stakeholders.

The plaintiffs, former employers of the defendant, brought a motion for summary judgment to set aside a conveyance of RRSPs made by the defendant.

The defendant, who had embezzled over $688,000 from the plaintiffs, transferred approximately $206,000 into a creditor-proof segregated mutual fund prior to the discovery of the fraud, her conviction, and subsequent bankruptcy.

The court applied the Fraudulent Conveyances Act, finding that the defendant's transfer of stolen money into a creditor-proof fund, followed by bankruptcy, constituted a fraudulent conveyance.

The court inferred intent to defraud from the circumstances, despite no direct evidence of the defendant's awareness that the fraud was about to be discovered at the time of transfer.

The motion was granted, ordering the RRSPs to be transferred back to a general fund for execution by the plaintiffs.

The University of Guelph moved to compel affiants of the University of Guelph Central Student Association (CSA), Canadian Federation of Students (CFS), and Canadian Federation of Students-Ontario (CFS-O) to re-attend cross-examination, answer objected questions, and produce documents.

The motion addressed seven outstanding refusals concerning the personal beliefs of a former executive, recommendations from a law firm (solicitor-client privilege), redactions to a memorandum and reports (solicitor-client and common-interest privilege), a tolling agreement (relevance), and redactions to settlement emails (common-interest privilege).

The court dismissed requests regarding personal beliefs and legal advice, upheld most redactions based on privilege, but ordered disclosure of the final executed tolling agreement and removal of certain redactions from settlement emails related to timing.

The moving party sought an order under Rule 48.14(16) of the Rules of Civil Procedure setting aside a registrar’s order dismissing his action for delay.

The underlying action between brothers sought recovery of more than $400,000 allegedly arising from loans dating back to the 1990s.

The court reviewed the contextual factors governing motions to set aside dismissal for delay, including explanation for delay, inadvertence, promptness in bringing the motion, and prejudice to the responding party.

The court found lengthy unexplained inactivity, insufficient evidence of inadvertence, lack of prompt action after learning of the dismissal, and a failure to rebut presumed prejudice arising from limitation issues and evidentiary concerns.

In the circumstances, it was not just to permit the action to proceed.

The moving parties sought summary judgment dismissing a counterclaim alleging misrepresentation, breach of contract, and intentional interference with economic relations on the basis that it was barred by the two‑year limitation period under the Limitations Act, 2002.

The counterclaim asserted claims virtually identical to those raised by the respondent in an earlier action that had been dismissed for lack of jurisdiction following enforcement of a forum selection clause by the Supreme Court of Canada.

The court held that the Limitations Act, 2002 is exhaustive and does not permit courts to decline to apply statutory limitation periods based on special circumstances.

As the claims were discovered years earlier and no statutory exception applied, the counterclaim was statute‑barred.

The court granted summary judgment striking the counterclaim and ordered the respondent to pay funds into court pending resolution of an indemnity claim, failing which judgment would issue.

The defendant brought a motion seeking a declaration that the plaintiff had waived solicitor-client privilege with his former lawyers after filing affidavit evidence blaming them for delay in prosecuting the action.

The affidavit asserted reliance on legal advice, instructions to counsel to advance the action, and lack of knowledge of a court-ordered timetable requiring the matter to be set down for trial.

The court held that by raising communications with counsel and his state of mind to explain delay in a motion to set aside a dismissal under Rule 48.14, the plaintiff placed those communications directly in issue.

Applying principles of fairness and implied waiver, the court concluded that privilege had been waived in relation to specified communications and instructions concerning advancement of the action.

The former solicitors were ordered to re-attend for examination under Rule 39.03 to answer questions relating to those issues.

The moving party brought a motion seeking disclosure and examination of the responding party’s former lawyers on the basis that the responding party had waived solicitor-client privilege through statements contained in an affidavit.

The court held that the affidavit placed the legal advice and conduct of former counsel in issue, thereby constituting a waiver of solicitor-client privilege and professional secrecy concerning communications and instructions relating to the progress of the action.

The court ordered that the former lawyers attend for further examination under Rule 39.03 to answer questions within the scope of the waiver.

The motion was granted and directions were provided regarding the scope of permissible questioning.

Two equal shareholder brothers in a family construction group became deadlocked after one withdrew from active management due to illness and sought to realize the value of his shares.

The court found a fundamental and irreparable deadlock in the management of the corporations under the oppression and winding‑up provisions of corporate statutes.

Competing valuation reports were rejected in part, with the court determining fair value by adjusting one report and rejecting assumptions that the operating company lacked viability.

The court ordered a forced buy‑out requiring the remaining shareholder to purchase the other’s shares at a court‑determined fair value.

Payment terms were structured to balance the retiring shareholder’s need for compensation with the company’s operational viability.

The defendants moved for a temporary stay of an Ontario action on the basis that identical proceedings were underway in New Brunswick.

The action concerned allegations that a former employee embezzled funds and used them to purchase and improve real property, including property later acquired in another province.

The court considered the test for temporary stays where parallel proceedings exist in different jurisdictions, including whether a stay would prevent duplication of resources and whether it would cause injustice to the resisting party.

The court held that the defendants had not demonstrated that a stay would avoid unnecessary duplication, particularly where the plaintiffs did not intend to pursue the foreign action beyond preserving a certificate of pending litigation.

Granting the stay would effectively render the Ontario proceeding moot and deprive the plaintiffs of their choice of forum.

The motion was dismissed and the defendants were granted time to file a defence.