James Plotkin

The Court of Appeal for Ontario allowed the appeal in part, finding that the trial judge erred in failing to address the appellants’ limitations defence to the “TCS Opportunities” claim.

The appellate court held that the TCS Opportunities claim was a new cause of action, added outside the limitation period, and was therefore statute-barred.

The damages award was reduced accordingly.

The court rejected the appellants’ other ground of appeal regarding the drawing of an adverse inference about source code production, finding no error in the trial judge’s approach.

This decision concerns an appeal under section 88.33(9) of the Municipal Elections Act, 1996, regarding the City of Ottawa Elections Compliance Audit Committee's refusal to order a compliance audit of a candidate's financial statement.

The court found that even a minor but substantive error in a candidate's Form 4 financial statement is sufficient to require an audit, and that the Committee erred in not ordering one.

The court ordered the Committee to appoint an auditor and clarified that the threshold for ordering an audit is low, focusing on transparency and accurate reporting rather than the magnitude of the error.

This appeal concerned a dispute over indemnification and escrow provisions in an asset purchase agreement, specifically whether an amendment to a Notice of Application was statute-barred.

The Court of Appeal dismissed the appeal, affirming the application judge's decision that the amendment was not statute-barred, despite an error in the application of s. 16(1)(a) of the Limitations Act, as it did not introduce a new cause of action or remedy.

The court also upheld the interpretation of the Escrow Agreement regarding notice delivery, finding that registered mail was not a valid method of delivery.

This case concerns an appeal from an arbitration award.

The applicants appealed an arbitrator's decision that found the respondent was entitled to 50% of corporate shares based on proprietary estoppel.

The court granted leave to appeal and set aside the arbitrator's award.

The court held that proprietary estoppel in Ontario is currently limited to interests in land and cannot be extended to other forms of property, such as shares, by an arbitrator.

Furthermore, the court found that the email on which the proprietary estoppel claim was based was internally inconsistent, ambiguous, and conditional, thus failing to meet the requirement for a clear and unequivocal promise.

The respondent's claim was dismissed.

The Court of Appeal dismissed an appeal by Unit Precast (Breslau) Ltd. and a cross-appeal by Click+Clean GmbH.

Unit Precast appealed the striking out of its claims for conspiracy and intentional interference with contractual relations, and claims asserted personally against Lars Bergmann, arguing the motion judge erred in failing to recognize its business as part of RH20 North America Inc.'s.

Click+Clean GmbH cross-appealed the dismissal of its motion to stay the action in favour of arbitration, contending the motion judge erred in finding the arbitration agreement inoperative.

The Court of Appeal upheld the motion judge's decision, finding Unit Precast's claims were not adequately pleaded and that Click+Clean GmbH waived its right to arbitrate by seeking substantive relief (motion to strike) from the court.

The applicant sought to set aside an arbitration award, arguing that the arbitrator breached procedural fairness by applying the doctrine of res judicata to prevent a limitation defence against a particularized counterclaim for negligence and breach of fiduciary duty.

The court found that the arbitrator's decision was a substantive legal one, not a procedural unfairness, and that the arbitration agreement precluded appeals on questions of law.

The application to set aside the award was dismissed.

The appellants and respondents own subdivided properties near Lake Ontario.

The appellants own a strip of land subject to an easement granting the respondents pedestrian access to use and enjoy the shores of Lake Ontario.

The appellants sought a declaration that the easement restricted the respondents to ingress and egress, and that 'shores' meant the area between the high and low water marks.

The application judge dismissed the application, finding the respondents could use the grassy area of the strip for recreational activities.

The Court of Appeal allowed the appeal, holding that the application judge erred by relying on inadmissible subjective intent evidence.

The Court declared the easement restricts the respondents to pedestrian access for ingress and egress to the shores, defined as the land between the high and low water marks.

The applicants, SpaceBridge, sought declarations that an indemnity claim made by the respondents, Baylin, under an asset purchase agreement (APA) and related escrow agreement was invalidly delivered, and for the return of $1,826,512 paid out of an escrow fund.

The core dispute revolved around the interpretation of contractual notice provisions, specifically whether delivery by registered mail was a permitted method under the Escrow Agreement, which had different notice modalities than the APA.

The court found that registered mail was not a valid mode of delivery under the Escrow Agreement, meaning Baylin's claim certificate was not properly delivered, and thus SpaceBridge's 30-day objection period never commenced.

Consequently, the payment from the escrow fund was improper, and Baylin was ordered to return the funds.

The court also dismissed Baylin's arguments regarding limitation periods and estoppel, but clarified that the ruling did not invalidate Baylin's underlying indemnity claim under the APA, which could still be pursued through litigation.

The moving defendants brought a motion under Rule 21 to strike various claims in the statement of claim, including all claims by Unit Precast, the conspiracy claim against all moving defendants, and all claims against Lars Bergmann.

Additionally, Click + Clean sought to stay the action against it based on an arbitration clause.

The court struck all claims by Unit Precast without leave to amend, and struck RH20's conspiracy claim and claims against Lars Bergmann with leave to amend.

The motion to stay the action against Click + Clean was dismissed, as conflicting forum selection clauses rendered the arbitration agreement inoperative, and the defendants' act of bringing a motion to strike constituted attornment to the court's jurisdiction.

This is an appeal of an arbitration award concerning the beneficial ownership of shares in a company.

The arbitrator had found that an email created an express trust, granting the respondent 50% of the applicant's personal shares.

The court granted leave to appeal, finding that the arbitrator erred in law by allowing the email to overwhelm the terms of a formal trust agreement.

The court varied the arbitrator's decision, ruling that only the formal Burwell Family Trust existed and the email did not create a separate express trust for the personal shares.

The court upheld the arbitrator's jurisdiction regarding the scope of the arbitration and his decision on the Limitations Act.

The issue of proprietary estoppel was remitted back to the arbitrator for determination and final disposition.

The City of Brockville appealed an application judge's order that set aside three arbitral awards and appointed a new arbitrator.

The Court of Appeal found that the application judge erred by characterizing questions of mixed fact and law as extricable questions of law and by misapplying procedural fairness principles under the Arbitration Act, 1991.

The Court emphasized the narrow basis for setting aside arbitral awards and the caution required in extricating questions of law from contractual interpretation.

The appeal was allowed, reinstating the arbitrator's original awards.

The parties settled a shareholder dispute, agreeing that the defendant would purchase the plaintiff's shares and pay 'costs as agreed or assessed'.

They could not agree on the scale or quantum of costs.

The defendant argued the costs should be assessed by an assessment officer pursuant to Rule 57.04.

The plaintiff argued the court should determine the costs as part of enforcing the settlement.

The court held that because determining the appropriate scale of costs required interpreting the settlement agreement, a judge should make the necessary factual and legal determinations rather than delegating to an assessment officer.

The plaintiff was directed to bring a motion to enforce the settlement.

This is an appeal concerning a dispute over access to a landlocked property ("the triangle property").

The appellants claimed a right to use a private road ("the red track") across the respondents' property based on two grounds: a prescriptive easement acquired by lost modern grant before 1999, or as an access road under the Road Access Act.

The Court of Appeal upheld the trial judge's decision, dismissing both claims.

The court found no prescriptive easement was established due to insufficient continuous use and lack of agency, and that the red track was not a contemporary "access road" under the Act due to disuse and overgrowth.

The McKillips, successful defendants in a motion to strike, sought substantial indemnity costs against the plaintiff Trustee in Bankruptcy.

The court awarded costs on a substantial indemnity basis for the period when fraud allegations were pleaded and partial indemnity thereafter, totaling $42,836.

The court found the fraud allegations, even if later clarified, warranted enhanced costs due to their serious nature and the Trustee's recklessness in pleading them without sufficient particulars.

The court also ruled that the costs should be paid by the Estate, or personally by the Trustee if the Estate lacked funds, rejecting the Trustee's argument for set-off against amounts owed by Susan McKillip in a separate unjust enrichment action.

The defendants brought a second motion to strike the plaintiff's re-amended statement of claim in an action arising from a Ponzi scheme.

The court found that the plaintiff had addressed the deficiencies identified in a previous decision regarding the damages claimed against most defendants.

However, the court struck the claim against two defendants (the McKillips) without leave to amend, finding no material facts were pleaded to establish a duty of care.

The court also held that the defendants were precluded from raising new arguments about the duty of care that they could have raised on their first motion to strike, as serial attacks on a pleading constitute an abuse of process.

The defendants sought over $300,000 in substantial indemnity costs following partial success on a motion to strike the plaintiff's pleadings.

The plaintiff, acting as trustee in bankruptcy for a company involved in a Ponzi scheme, opposed the costs request and argued that costs should be reserved.

The court declined to fix costs immediately, finding it more just to reserve the costs of the initial motions pending the outcome of further motions to strike the reamended statement of claim.

The applicant sought to set aside several arbitral awards made against him in favour of the respondent companies, arguing jurisdictional errors and procedural unfairness under s. 46(1) of the Arbitration Act.

The arbitrator had dismissed the applicant's claims for wrongful dismissal and ordered him to repay misappropriated corporate funds, applying the doctrine of laches to defeat his limitation period defence.

The Superior Court applied the reasonableness standard of review from Vavilov, finding that the arbitrator acted within his jurisdiction and afforded procedural fairness.

The application to set aside the awards was dismissed, and the cross-application to enforce the awards was granted.

The Republic of Korea (South Korea) moved to dismiss Best Theratronics Ltd.'s breach of contract action and set aside an injunction preventing The ICICI Bank of Canada from disbursing funds under a Standby Letter of Credit (SBLC).

Best Theratronics Ltd. cross-moved to extend the injunction.

The court found that a forum selection clause in the contract granted exclusive jurisdiction to South Korean courts for the main action between Best and South Korea, leading to a stay of those proceedings in Ontario.

However, the court extended the temporary injunction against The ICICI Bank of Canada, noting that the SBLC was governed by Ontario law and the Bank was not bound by the forum selection clause.

The injunction was continued on terms to allow Best to pursue remedies in South Korea, with provisions for its eventual termination.

The plaintiff, Richcraft Homes Ltd., initiated an action against several defendants, including Urbandale Corporation, Urbandale Construction Limited, and Lawrence Weinstein, seeking declaratory relief for oppressive conduct, breach of contract, and punitive damages related to land development projects.

The defendants brought motions under Rule 21 to strike Richcraft's claims, arguing they failed to plead material facts supporting a reasonable prospect of success.

The court granted the motions, finding that Richcraft did not demonstrate compensable injury or a likelihood of threatened oppressive conduct, nor an independent actionable wrong for punitive damages.

Leave to amend was denied due to the absence of proposed amendments or supporting evidence.

The defendants brought motions to strike the plaintiff's statement of claim, which sought contribution and indemnity, damages, and disgorgement arising from the defendants' alleged involvement in a Ponzi scheme operated by Golden Oaks.

The court struck the claims for contribution and indemnity without leave to amend, finding no common liability to third parties and no viable duty of care owed to the unsecured creditors.

The claims for damages were struck with leave to amend to properly plead the losses suffered by the company.

The claims for disgorgement and accounting were permitted to proceed.