David E. Wires

The applicants sought to set aside or vary two interlocutory awards made by an arbitrator, arguing that the arbitrator made findings on unpleaded allegations, resulting in a 'trial by ambush.' The underlying arbitration involved a dispute over share ownership and unpaid dividends, where the arbitrator dismissed the applicants' summary judgment motion based on a limitation period defence.

The Superior Court dismissed the application, holding that the court should not interfere with interlocutory arbitral decisions to avoid piecemeal review.

Furthermore, the court found no procedural unfairness, as the issues had been properly pleaded and the applicants had the opportunity to call reply evidence but declined to do so.

The moving party, a director of the debtor companies, sought leave to appeal orders approving the sale of a lawsuit commenced by the debtors against their secured creditor.

The receiver had accepted a credit bid from the secured creditor to purchase the action.

The Court of Appeal dismissed the motion for leave to appeal, finding that the receiver's authority to sell the action was already determined in prior unappealed orders (res judicata) and that the proposed appeal lacked prima facie merit.

In a receivership proceeding, a corporate director sought leave to control litigation commenced by debtor companies against a secured creditor, arguing that the receiver faced a conflict in pursuing claims against the creditor that initiated the receivership.

The court held that the request constituted an impermissible collateral attack on a prior order directing the receiver to conduct a sales process for the litigation asset.

The court further determined that secured creditors may participate as bidders in a receiver’s sales process, including by way of credit bid, and that such participation is consistent with insolvency principles requiring maximization of value for stakeholders.

Applying analogous bankruptcy authorities, the court approved the receiver’s recommendation to sell the action to the secured creditor through a $1 million credit bid and rejected objections regarding valuation and fairness of the process.

In a Commercial List costs decision arising from competing receivership-related applications and motions, the applicant sought substantial indemnity costs based on contractual costs clauses in loan documentation.

The court held that, although contractual rights to solicitor-and-client-type costs are generally enforced, the unresolved allegation that the applicant breached a forbearance agreement constituted a special circumstance making an immediate substantial indemnity award inappropriate.

Applying the Rule 57.1 factors and rejecting reliance on outdated historical costs guidelines, the court fixed partial indemnity costs at $160,000 inclusive of fees and disbursement.

The request to require the respondent to pay the receiver's fees and disbursements was refused.

The applicant, a secured creditor, applied to appoint a receiver over the assets of the respondent guarantor following a default on commercial loans.

The respondent cross-applied to lift a stay of proceedings to continue a $100 million damages action against the applicant for alleged breach of a forbearance agreement, and sought to have the proceeds from the sale of the primary debtor's assets paid into court.

The court held that the receivership order did not stay the debtor's action, but refused to order the funds paid into court as the respondent had no proprietary claim to the funds that superseded the applicant's first-ranking security.

The court appointed a receiver over the respondent, finding it just and convenient given the unconditional nature of the guarantee.

A senior logistics executive sued for wrongful dismissal after being terminated without adequate notice less than three years after recruitment to serve as country manager of Canadian operations.

The court applied the Bardal factors, considering the employee’s age, senior management responsibilities over a large national operation, limited comparable employment opportunities, and evidence of inducement from secure prior employment.

The court also considered the requirement that the employee make a substantial investment in an affiliated company as creating an implied expectation of longer‑term employment.

Despite the short tenure, these factors justified a lengthy notice period.

Reasonable notice was fixed at 14 months and damages were awarded after deducting mitigation earnings and payments already received.

The appellants appealed an order dismissing their motion to challenge Ontario's jurisdiction and stay the action on the basis of forum non conveniens.

The respondent alleged the appellants conspired to defraud it of over $2,000,000.

The Court of Appeal upheld the motion judge's finding that a presumptive connecting factor existed (a tort committed in Ontario) and that the appellants failed to rebut the presumption of a real and substantial connection.

The Court also found no basis to interfere with the motion judge's conclusion that Ontario was the appropriate forum.

The appeal was dismissed with costs.

The defendant brought a motion to stay or dismiss an Ontario action for lack of jurisdiction.

The plaintiffs sought contribution and indemnity from the defendant in relation to a large American judgment arising from their lottery resale business.

Applying the real and substantial connection test clarified in Club Resorts Ltd. v. Van Breda, the court considered whether the defendant carried on business in Ontario.

The court found that the defendant’s indirect relationship with the plaintiffs through an authorized retailer in Prince Edward Island, a single audit visit, and termination of a retailer agreement did not establish that the defendant carried on business in Ontario.

The motion was granted and the action stayed for lack of jurisdiction.

Following dismissal of a motion by several defendants seeking leave to appeal an earlier order, the court addressed the issue of costs.

The successful party sought $6,358.23 inclusive of fees, disbursements, and HST, while the opposing parties argued that $2,800.00 was appropriate.

The court held that the opposing parties’ costs submissions were excessive and lacked a breakdown supporting their proposed amount.

Applying partial indemnity principles and reviewing counsel’s docketed time, the court found a fee of $4,500.00 to be reasonable and fixed total costs accordingly.

The defendants sought leave to appeal an interlocutory decision that dismissed their motion to stay the Ontario action in favour of proceedings in California.

The court found no good reason to doubt the correctness of the motion judge's finding that Ontario had a real and substantial connection to the claim and was the most appropriate forum.

The court also concluded that the proposed appeal did not involve matters of such importance to warrant granting leave.

The motion for leave to appeal was dismissed.

The appellants represented a class of individuals victimized by a gold delivery fraud, having deposited funds into a solicitor's trust account.

They alleged the Law Society of Upper Canada breached a duty of care by failing to properly investigate and monitor the solicitor's trust account after being notified of irregularities.

The Supreme Court of Canada applied the Anns/Kamloops test and held that the Law Society did not owe a prima facie duty of care to the appellants, who were not clients but participants in a third-party business promotion.

The Court further noted that even if a duty existed, it would be negated by residual policy considerations and the statutory immunity provided under the Law Society Act.

The Crown appealed an acquittal entered on appeal from a provincial offences conviction for practising as a public accountant without a licence.

The court held that a Certified General Accountant who prepared a stub financial statement for a share purchaser, and financial statements knowingly used by a bank, fell outside the management-accountant exemption in s. 34 because he had actual knowledge that third parties would use and rely on the statements.

The court further held that preparation of corporate income tax returns and attached financial statements did not constitute practising as a public accountant because the representations were those of the taxpayer, not the preparer.

A vagueness challenge to the statutory scheme under s. 7 of the Charter failed.

The acquittal was set aside and the conviction restored.

In an appeal arising from Rule 20 and 21 motions, the appellants challenged an order dismissing their action against the executors of a deceased solicitor's estate arising from losses in a gold delivery contract investment scheme.

The court held that claims fitting within ss. 43 and 44 of the Limitations Act, including pleaded fraud, fraudulent breach of trust, recovery of trust property, accounting, and tracing relief, were not barred by the two-year limitation in s. 38(3) of the Trustee Act.

The court further held that the doctrine of plene administravit could not be determined against the appellants at this stage because it was not plain and obvious that the estate had no assets beyond $7,138, given possible insurance coverage and tracing remedies.

The appeal was allowed on the main dismissal issue, but dismissed as to two related interlocutory orders striking parts of the reply and refusing to strike an affidavit.

In an intended class proceeding arising from investor losses in a fraudulent gold scheme using a lawyer's trust account, the appellants alleged the regulator negligently failed to properly investigate and intervene after receiving a complaint about the lawyer's conduct.

The Court of Appeal applied the Anns/Kamloops framework and held that, even assuming sufficient proximity, statutory and judicial immunity, together with compelling policy considerations, negated any private law duty of care in negligence in relation to the regulator's investigatory and disciplinary functions.

Those functions were characterized as inherently judicial or quasi-judicial, and absent pleaded bad faith or malice no negligence action could lie.

The Rule 21 order striking the claim was upheld, as were the costs orders.