Chris Trivisonno

This is a costs decision following the court's grant of leave to commence a derivative action under s. 246 of the Ontario Business Corporations Act.

The applicant sought to bring proceedings on behalf of two corporations against their directors for breach of fiduciary duties and duties of care relating to excessive compensation.

The applicant sought costs against the respondent directors on a partial indemnity basis.

The respondents argued for no costs or significantly reduced costs, citing divided success and adverse findings regarding the applicant's own conduct.

The court reserved costs to the trial judge, finding that the trial judge would be best positioned to assess costs of the entirety of the proceedings and the parties' conduct.

The applicant sought leave to commence a derivative action on behalf of two closely held companies (Cen-Ta Real Estate Ltd. and Plum Financial Group Inc.) against the companies' directors for breach of fiduciary duties and duties of care.

The applicant alleged that the directors awarded themselves and their personal companies unreasonable and unfair compensation despite the companies' declining revenues and financial losses.

The respondent directors opposed the application, arguing the applicant failed to satisfy the mandatory statutory preconditions under the Ontario Business Corporations Act, specifically that the applicant was not acting in good faith and the proposed action was not in the interests of the corporations.

The court granted leave for the derivative action, finding that the applicant satisfied all requirements under the Act, was acting in good faith, and the action was in the interests of the corporations.

The court ordered that the applicant and corporations share legal costs equally.

The applicant, Jennifer Carr, President of the Professional Institute of the Public Service of Canada (PIPSC), brought an oppression application under the Canada Not-for-profit Corporations Act against the directors (respondents) for placing her on "administrative leave" with pay.

Carr argued this was an effective suspension, contrary to PIPSC's By-laws, Policies, and the CNFPCA, and that she was denied procedural fairness.

The respondents argued it was a non-disciplinary administrative leave to protect investigations into Carr's conduct and that their actions were justified by the business judgment rule.

The court found that the administrative leave was functionally equivalent to a disciplinary suspension, breached Carr's reasonable expectations, and constituted oppressive and unfairly prejudicial conduct.

The court quashed the motion for administrative leave and reinstated Carr to her position.

This appeal concerned the interpretation of two easements: a 15-foot wide right-of-way for ingress and egress, and a right-of-access to a well.

The appellants (servient tenement owners) sought declarations that the right-of-way did not include vehicular turnaround activity and that the well access was null and void.

The respondents (dominant tenement owners) sought declarations affirming their rights, an injunction against obstructions, and damages.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that the right-of-way included the turnaround area based on latent ambiguity and ancillary rights, and that the right-of-access to the well had not been extinguished.

The plaintiff, Joann Bell, sought a Certificate of Pending Litigation (CPL) against a residential property previously owned by the defendant, Carolyn Gerbac, and subsequently transferred in part to the other defendants.

Bell had a judgment for professional negligence against Gerbac and alleged the property transfer was fraudulent, aimed at hindering her as a creditor.

The court found several "badges of fraud" in the conveyance, establishing a triable issue regarding its fraudulent nature.

Weighing the equities, the court determined that granting the CPL was appropriate, as the property appeared to be the only asset for judgment recovery and the CPL would not unduly prejudice the defendants.

The motion for a CPL was granted, and the defendants were ordered to pay fixed costs to the plaintiff due to the unreasonable conduct of not consenting to the CPL.

The plaintiff estate sought leave to amend its statement of claim mid-trial in a long-running family business dispute involving an oppression remedy claim.

The court granted leave for some amendments, finding they merely provided further particulars of the originally pleaded misappropriation of funds (e.g., the Stapledon loan allegations and the Stoke Lacey sale).

However, the court refused leave for other amendments (e.g., failure to pay property taxes and failure to complete audited financial statements), finding they constituted new, statute-barred causes of action that would cause actual and presumed non-compensable prejudice to the incapacitated defendant due to inordinate delay.

The court also refused amendments that amounted to a collateral attack on findings made in the first part of the bifurcated trial.

The appellant, Salvatore Falsetto (father), appealed a trial decision that found substantial transfers of money and properties to his son, Salvatore Fillipo Falsetto (Sam), were gifts, not held in trust.

The trial judge also found no breach of fiduciary duty, undue influence, or unjust enrichment by the son.

The Court of Appeal dismissed the appeal, upholding the trial judge's factual findings that the transfers were gifts.

While the Court of Appeal found that the son was indeed a fiduciary, it concluded that he did not breach his fiduciary obligations because the transfers were made with the father's full knowledge and consent, and at his instruction.

The applicants sought to set aside three arbitral awards under s. 46 of the Arbitration Act, 1991, alleging procedural unfairness regarding damages quantification and witness exclusion.

The respondents sought to enforce the awards.

The court dismissed the applicants' motion, affirming the narrow scope of judicial review for arbitral awards under s. 46, which focuses on procedural fairness rather than substantive errors.

The court found the arbitrator's reasons adequate and that the applicants were treated fairly, despite their disagreement with the arbitrator's evidentiary and damages assessment decisions.

This was a costs decision following a six-week civil trial in which the plaintiff's claims for damages, resulting trust, constructive trust, breach of trust, and breach of fiduciary duty were dismissed.

The court held that the plaintiff had advanced serious, fraud-like allegations of theft, conspiracy, elder abuse, and dishonesty without proving them, warranting costs on a substantial indemnity basis.

The court also relied on the defendants' unaccepted Rule 49 offer of $1.5 million, which the plaintiff failed to beat after recovering nothing at trial.

Although impecuniosity was argued, the court found no exceptional sympathetic circumstances justifying a major reduction and ordered costs of $750,000 plus HST and disbursements of $43,959.26 inclusive of HST.

The plaintiff father sued his defendant son and several of the son's companies, seeking the return of over $12 million in funds and properties transferred to the son between 2010 and 2015.

The father alleged that the properties were to be held in trust for him and his other children, and claimed breach of fiduciary duty, undue influence, and unjust enrichment.

The court dismissed the action, finding that the son successfully rebutted the presumption of resulting trust.

The court accepted the son's evidence, corroborated by independent witnesses and bank personnel, that the father had a clear donative intent and gifted the funds and properties to the son.

The plaintiff brought a motion for leave to amend his statement of claim in an action alleging his son misappropriated funds using a power of attorney.

The defendants consented to some amendments, including removing a bank as a defendant, but opposed adding numerous new particulars of properties and transactions.

The court granted the unopposed amendments but denied the opposed ones, finding that adding unproven transactions to the pleading before entitlement to a tracing remedy was established would unnecessarily complicate and delay the trial, constituting an abuse of process.

The plaintiff and defendants brought cross-motions to compel answers refused on discovery and to challenge claims of privilege in an action alleging misappropriation of funds by a son acting under a power of attorney.

The court held that financial records for tracing purposes need not be produced before liability is established, but ordered production of records showing how the transferred funds were characterized.

The court upheld the defendants' claim of litigation privilege over communications with their bookkeeper and refused to order disclosure of e-discovery search terms.

The court also ordered the plaintiff to produce his 2018 will and his social worker's file, subject to valid privilege claims, as they were relevant to the defendants' theory that the plaintiff's daughter was controlling the litigation.

The plaintiff, a shareholder of the corporate defendant, sought leave to commence a secondary market misrepresentation claim under the Securities Act following the collapse of a tailings storage facility at the defendant's mine.

The plaintiff alleged that the defendant knew or ought to have known of the facility's compromised structural stability and failed to disclose it.

The court dismissed the motion for leave, finding that the plaintiff failed to establish a public correction of the alleged misrepresentation.

The press release issued by the defendant merely stated that the facility had breached and the cause was unknown, which did not indicate that any previous disclosure was untrue or misleading.

In an ongoing estate dispute between a widow and her children, the applicant widow brought a motion to add two corporate parties, admit a late affidavit regarding her health, substitute written interrogatories for oral cross-examination, and determine the scope of cross-examination.

The court added the corporate parties, finding one to be a necessary party.

The court admitted the late affidavit but excluded the attached medical reports as inadmissible hearsay.

The court declined to dispense with oral cross-examination, finding insufficient evidence of serious harm, but ordered specific accommodations for the 93-year-old applicant.

Finally, the court limited the scope of cross-examination to the three issues previously deemed urgent to conserve judicial resources.

The applicant sought entitlement to stock options, arguing constructive dismissal from employment after one year when their role transitioned to a consulting position.

The respondent contended that the transition to a consulting role and subsequent departure were by mutual agreement, thus precluding option entitlement.

The court found no constructive dismissal, determining that the change in role was mutually agreed upon and contemplated by the original employment contract.

The applicant's subsequent departure after the consulting term was also deemed voluntary.

Consequently, the application for stock options was dismissed.

The plaintiffs and defendants brought competing motions regarding the approval of discovery plans in a civil action initiated five years prior.

The plaintiffs proposed a broad plan seeking extensive documentation from 2008 to the present, including personal financial and travel records.

The defendants opposed this, proposing a more limited plan tailored to the relevant period of the relationships (2010-2015).

Applying principles of common sense and proportionality, the court found the plaintiffs' proposed plan to be excessively broad and not aligned with the "needs not wants" approach to discovery, as articulated in *Drywall Acoustic Lathing and Insulation* and *Hryniak v. Mauldin*.

The defendants' more proportional and relevant discovery plan was approved, and the parties were ordered to adhere to a consent timetable.

The applicant sought production of documents relating to a corporate acquisition that occurred three and a half years after the valuation date of his shares, arguing it was relevant to the valuation.

The respondents moved to strike the application.

The court dismissed the applicant's motion for production, holding that the mutually appointed valuator had the exclusive authority under the settlement agreement to determine the relevance of the post-valuation transaction.

The court struck the application against the third-party purchasers, finding they were improperly joined solely for discovery purposes, but declined to strike the breach of contract claim against the former employer, adjourning it pending the valuator's determination.

The applicant, as estate trustee, brought an oppression application alleging breach of fiduciary duties and corporate opportunity appropriation by the individual respondents concerning the "Greystar" transaction and mismanagement of Di Battista Gambin Developments Limited (DBG).

The court found that the individual respondents breached their fiduciary duties and statutory obligations under the OBCA by appropriating a corporate opportunity (Markham property) for Greystar's benefit and engaging in self-dealing through a $3 million mortgage from DBG to Greystar without proper disclosure or shareholder approval.

The directors also abdicated their responsibilities, leading to an unjustified accumulation of cash.

The court concluded that the conduct was oppressive and unfairly prejudicial, warranting a remedy of either winding-up DBG and Whitwood or a buy-out of the applicant's interests by the DiBattista respondents at fair market value, along with an accounting of benefits from the Greystar transaction.