Jason Michael Berall

A vacant land condominium corporation sought damages and disgorgement of profits against its former directors and various defendants, alleging breach of fiduciary duty in connection with the release of easements burdening adjacent land.

The plaintiff claimed the directors received secret benefits in exchange for facilitating the release of easements valued at approximately $31.5 million.

The court found that the corporation was contractually obligated to release the easements pursuant to easement release provisions in registered agreements, and that the plaintiff failed to prove the directors received secret benefits or breached their fiduciary duties.

The court dismissed the plaintiff's claim and the counterclaim.

The court considered whether a dispute over the calculation of an earn-out under a Purchase and Sale Agreement (PSA) should be referred to an independent accountant, as provided in the PSA, or determined by the court.

The applicants argued that the dispute, which concerned whether certain partnership units received by the respondents should be included in the earn-out calculation, fell within the accountant’s jurisdiction.

The respondents argued the issue was a legal one for the court.

The court held that the PSA’s language and commercial context indicated the parties intended all unresolved disputed items regarding the earn-out to be determined by an independent accountant, not just calculation disputes.

The court directed the parties to submit their dispute to an independent chartered accountant in accordance with the PSA.

The plaintiffs sought an interlocutory injunction against the defendants for passing off their sports hydration products (Cwench) as the plaintiffs' (BioSteel).

The plaintiffs alleged that Cwench's products, flavors, and packaging ("get-ups") were confusingly similar to BioSteel's.

The court dismissed the injunction request, finding that the plaintiffs failed to establish a strong prima facie case or a serious issue to be tried regarding goodwill in their product's get-ups, misrepresentation causing confusion, or actual/potential damages.

The court determined the injunction was mandatory, requiring a higher "strong prima facie case" standard, and found that similarities were common industry features or functional choices, and evidence of consumer confusion was insufficient.

The Monitor of BioSteel Sports Nutrition Inc. (under CCAA protection) sought an order declaring ColdHaus Direct Inc. liable for $3.97 million and directing payment, along with an extension of the stay of proceedings and approval of fees.

ColdHaus brought a cross-motion to lift the stay to allow set-off of post-filing obligations against pre-filing amounts, specifically a $1.05 million buy-back claim.

The court allowed the Monitor's payment motion in part, permitting ColdHaus to set off pre-filing billbacks for warehousing ($89,273.14) and distribution rebates ($74,546.05).

However, the court dismissed ColdHaus's motion to set off the buy-back amount, finding the obligation did not arise pre-filing and that ColdHaus had artificially created indebtedness by failing to pay invoices.

The Monitor's request for a stay extension and fee approval was granted.

The plaintiff, Suntower Developments Limited, brought a motion for a certificate of pending litigation (CPL) over property owned by the defendants, Studios of America Corporation and Studios of America Limited Partnership.

Suntower claimed a constructive trust based on unjust enrichment and alleged wrongful conduct, stemming from an agreement where Suntower was to receive a share of cash flow for its development work, not a proprietary interest.

The defendants opposed, arguing the contract was a juristic reason precluding unjust enrichment and that monetary damages were an adequate remedy.

The court dismissed the motion, finding no triable issue for a constructive trust claim, as the contract was a juristic reason for any enrichment, and the plaintiff had no reasonable expectation of a proprietary interest.

The court also found no triable issue for a constructive trust based on wrongful conduct, as the defendants' ownership of the property did not result from any breach of obligation.

The equities also favored dismissing the CPL.

The defendants brought a motion to strike portions of the plaintiff's fresh as amended claim, specifically allegations against individual board members, for inducing breach of contract, unjust enrichment, breach of trust, knowing receipt of trust funds, and knowing assistance of breach of trust.

The court found no discernible conduct by the directors separate from their corporate roles to ground personal liability.

The allegations lacked sufficient particulars and offended the indirect benefit prohibition for unjust enrichment.

The court granted the motion, striking all claims against the individual directors without leave to amend, citing the lack of a tenable cause of action and public policy considerations against litigation by intimidation.

The Proposal Trustee sought directions from the court regarding the procedure for determining a complex proof of claim filed by Maria Athanasoulis, comprising a wrongful dismissal claim and a significant profit share claim, within the context of a court-approved proposal under the Bankruptcy and Insolvency Act.

The motion addressed disagreements among stakeholders (Athanasoulis, Sponsor, and Limited Partners) on how to proceed with the claim's determination and subsequent appeal, particularly concerning the scope of evidence, the nature of the appeal (true appeal vs. de novo), and the standing of the Limited Partners.

The court provided detailed directions to ensure procedural fairness and efficiency, deferring the valuation of future-oriented damages until after the provability of the profit share claim is determined on appeal, and limiting the Limited Partners' standing to specific issues.

Following a summary judgment, the court determined the post-judgment interest rate and confirmed an agreed-upon costs award.

The plaintiff sought the contractual rate of 6% per annum on outstanding principal and unpaid interest.

The court ruled that the contractual rate of 6% applies to the outstanding principal, citing the Courts of Justice Act and Supreme Court precedent.

However, for unpaid interest, the court applied the lower CJA rate, as the promissory notes did not provide for compound interest.

Costs were settled by agreement at $60,000.00.

The plaintiff, York Region Vacant Land Condominium Corporation No. 1010, brought a motion for leave to file a Fresh as Amended Statement of Claim, including the addition of a new defendant, Patrick Greco.

The defendants opposed certain proposed amendments, arguing they were scandalous, irrelevant, or pleaded evidence.

The Master granted leave to amend the statement of claim and add the new defendant, but struck paragraphs 8, 95, and 102-105 from the proposed pleading, finding them to be scandalous references, irrelevant, or improper pleadings of evidence.

The appellant, former CEO and chairman of Sino-Forest Corporation (SFC), appealed a trial judgment awarding damages of $2.627 billion plus $5 million in punitive damages for fraud and breach of fiduciary duty.

The appellant argued that the litigation trust lacked standing to pursue claims that overlapped with class actions, that the damages award created double recovery risks, and that the transfer of assets constituted an election barring the claim.

The Court of Appeal upheld the trial judgment, finding that the litigation trust held separate and distinct corporate causes of action from those of individual shareholders and noteholders in the class actions, that the damages award was properly calculated based on SFC's losses, and that no election doctrine applied.

The defendants Pöyry brought a motion seeking orders to prohibit "Releasors" from assisting the Litigation Trustee in a Singapore action and declaring that the Litigation Trustee breached a court-approved settlement agreement by pursuing claims against Pöyry in Singapore.

Pöyry argued that the Litigation Trust's claims were covered by release and bar order provisions of a prior settlement agreement in the class action.

The Litigation Trust opposed, arguing the motion breached a Standstill Agreement, was barred by res judicata, and that the Ontario court should defer to the Singapore courts on grounds of comity and forum non conveniens.

The court dismissed Pöyry's motion, accepting the forum non conveniens arguments.

It declined to provide an opinion or interpret its own settlement orders for the Singapore court, emphasizing that the Singapore court was the appropriate forum to determine the effect of the Pöyry Settlement Agreement and the Ontario court's orders on the Singapore action.

The appellant appealed a motion judge's decision to stay an Ontario action on the basis of forum non conveniens.

The action concerned a dispute over payment obligations under a Term Sheet governing an upstream oil and gas rights transaction in Iran.

The Term Sheet contained a clause providing that it would be governed by English law and that the parties agreed to attorn to the courts of England.

The motion judge had applied the strong cause test and stayed the action in favour of England.

The Court of Appeal found that the forum selection clause was not an exclusive jurisdiction clause and therefore the strong cause test did not apply.

Conducting a fresh forum non conveniens analysis, the court found that the respondents had not demonstrated that England was clearly the more appropriate forum.

The appeal was allowed and the stay was set aside.

Following the dismissal of the defendants' motion for summary judgment, the plaintiff sought substantial indemnity costs under Rule 20.06 or, alternatively, partial indemnity costs.

The court found that the defendants' conduct in bringing the summary judgment motion, though unsuccessful, did not meet the threshold of "unreasonable" or "bad faith" required for substantial indemnity costs under Rule 20.06.

The court emphasized that Rule 20.06 applies in "exceptional circumstances" involving improper conduct, not merely an arguable but unsuccessful motion.

Consequently, substantial indemnity costs were denied.

The plaintiff was awarded partial indemnity costs, fixed at $85,000, inclusive of fees, disbursements, and HST, after considering the complexity and importance of the motion, and the limited benefit of the work product for the remainder of the action.

The court determined the costs award following the dismissal of a securities class action against the defendant on jurisdiction and forum non conveniens grounds.

The successful defendant sought $696,393 in partial indemnity costs for both the jurisdiction and certification motions, while the plaintiff proposed $75,000 at most.

The court adjusted the defendant's request, particularly by removing expert fees for "efficient market" analysis deemed unnecessary.

Considering the timing of the jurisdiction motion and the impact of a prior analogous decision (Yip v HSBC Holdings) which simplified the legal analysis, the court fixed costs at $260,000, payable by the plaintiff to the defendant, emphasizing fairness and reasonableness to the losing party under Rule 57.01(1).

The plaintiff, George Leon, brought a proposed class action in Ontario against Volkswagen AG for fraudulent misrepresentation related to the purchase of VWAG American Depositary Receipts (ADRs) and common shares on foreign exchanges.

Volkswagen AG moved to dismiss the action for lack of jurisdiction or, alternatively, to stay it on the grounds of forum non conveniens.

The court dismissed the action, finding no real and substantial connection to Ontario, as VWAG did not carry on business in Ontario and the tort of fraudulent misrepresentation was not committed there.

The court also found that the U.S. (for ADRs) and Germany (for common shares) were clearly more appropriate forums, emphasizing the principle of international comity in cross-border securities litigation and giving little weight to the plaintiff's asserted juridical advantages in Ontario.

The defendant brought a motion for a commission to take evidence in Hong Kong for himself and five non-party witnesses.

The plaintiff opposed on grounds of jurisdiction, the test under Rule 36, and the open court principle.

The court granted the motion for the non-party witnesses, with the trial judge acting as commissioner, finding it necessary for a fair trial as these witnesses were not compellable in Ontario.

However, the motion for the defendant's own evidence to be taken on commission was dismissed, as he failed to demonstrate a sufficient reason for not attending in Toronto, given his status as a party who had attorned to the court's jurisdiction and the significant costs involved.

The court also found that the commission evidence process, with the trial judge acting as commissioner, did not offend the open court principle or jurisdictional boundaries.