Kenneth A. Dekker

The appellant, an investment advisor, received a recruitment bonus structured as a loan to be forgiven annually if revenue targets were met.

After the employer failed to credit bonuses for two years, the parties signed an Amended Note extending the repayment period and acknowledging the unpaid bonuses.

Following his termination, the respondent sued to enforce the Amended Note.

The appellant argued the Amended Note lacked fresh consideration.

The Court of Appeal upheld the motion judge's finding that the Amended Note was supported by valid consideration, including clarification of the parties' relationship, tax deferral benefits, and an extended interest-free period.

The appeal was dismissed.

The applicant, Hugh Kuang, sought an order for $4,110,000.00 in interim legal costs and disbursements to fund an upcoming trial under the Ontario Business Corporations Act and the Family Law Rules.

The respondents resisted, arguing that a prior consent order providing $1,000,000.00 did not establish the applicant's ongoing entitlement to interim funding.

The court determined that the prior consent order resolved the issue of entitlement, leaving only the questions of compliance and quantum.

Finding the applicant's proposed budget excessive but recognizing the complexity of the litigation, the court granted the motion in part and ordered the corporate respondents to pay $2,725,000.00 in four staged payments.

This decision addresses the costs of a motion brought by the applicant to appoint an investigative receiver-monitor and for interim disbursements in a complex corporate/family dispute.

Although most issues were settled just before the scheduled hearing, the court found compelling reasons to award costs to the applicant due to the respondents' litigation conduct, including failure to provide proper financial disclosure and late capitulation on key issues.

The applicant was deemed the successful party, having secured the appointment of their proposed receiver and interim disbursements of $1 million.

The court awarded $125,000 in costs to the applicant, balancing the applicant's success against the proportionality of the fees incurred, and declined to order joint and several liability as requested, preserving the issue for trial.

The plaintiff, Brant Securities Limited, moved for summary judgment to enforce a promissory note against the defendant, Donald Goss.

Mr. Goss resisted enforcement and sought summary judgment on his counterclaim, which included claims for unpaid bonuses, losses from share sales, and wrongful dismissal damages.

The court found the original and amended promissory notes valid and enforceable, rejecting Mr. Goss's arguments regarding failure of consideration, authenticity of signature, and lack of consideration for the amended note.

The court dismissed Mr. Goss's claims for unpaid bonuses (due to resolution by amended note and limitation period) and share sale losses (due to lack of reliance, failure to exercise put right, and limitation period).

However, the court granted Mr. Goss's claim for $33,616.60 in unpaid Employment Standards Act benefits, setting off this amount against the sum owed on the promissory note.

The applicant sought costs of $302,215.33 following successful interim and final preservation motions in a complex family law dispute involving a multi-million-dollar real estate empire.

The court found the respondents' conduct, particularly their failure to comply with disclosure orders and late delivery of materials, to be unreasonable and warranting sanction.

The court rejected the respondents' arguments of divided success and their reliance on offers to settle.

The court declined to pierce the corporate veil to make the individual respondent personally liable for the corporate respondents' costs.

The applicant was awarded total costs of $200,000 on a substantial recovery basis.

The defendants moved to set aside an ex parte order that extended the deadline for service of the Statement of Claim, alleging the plaintiff failed to make full and fair disclosure of material facts and caused prejudice.

The plaintiff cross-moved to validate service.

The court found that the plaintiff's affidavit on the ex parte motion was inadequate, failing to disclose that defendants' counsel had offered to accept service and that the MFDA was also investigating the defendants for the same conduct.

The court determined that the defendants suffered prejudice because they entered into a settlement agreement with the MFDA, making admissions that would impair their defence in this action, under the belief that the litigation was not proceeding.

The defendants' motion was granted, and the ex parte order was set aside.

The plaintiff's cross-motion was dismissed.

This decision addresses the costs of a complex motion concerning the interpretation of an interim preservation order's "usual and ordinary course of business" term.

The applicant sought partial recovery costs of approximately $105,000, while the respondents proposed $25,000.

The court awarded the applicant $98,000, finding them overwhelmingly successful on the key issues.

The court emphasized proportionality, the complexity and high stakes of the litigation, and the respondents' conduct, including significant delays, late affidavit delivery, and a "scorched earth policy" which unnecessarily increased costs.

The applicant husband brought a motion for an interim preservation order under Rule 45.01 of the Rules of Civil Procedure and section 12 of the Family Law Act to preserve the assets of several respondent corporations pending trial.

The applicant claimed legal and beneficial ownership of the corporations, which held a substantial real estate portfolio and private mortgage fund, while the respondent wife claimed her mother owned them.

The court found the applicant established a strong prima facie case of ownership and that the balance of convenience favoured preserving the unique corporate assets.

The court granted the preservation order for the corporate assets but declined to order preservation for specific residential properties under the Family Law Act.

This motion concerned the interpretation of the term “usual and ordinary course of business” as it applied to corporate respondents in an interim preservation order.

The corporate respondents sought an expansive interpretation to allow significant financial transactions, including leveraging properties and transferring funds for a private mortgage lending business.

The applicant sought a narrow interpretation to preserve assets.

The court applied principles of judicial order interpretation, emphasizing context and purpose, and found the respondents' proposed interpretation would negate the preservation order's effect.

The court adopted a narrow definition, limiting “usual and ordinary course of business” to day-to-day operations and management, explicitly excluding large-scale asset encumbrance or intercorporate fund transfers for investment.

All other relief sought by the respondents was dismissed.

The Receiver brought a motion for court approval of multiple settlement agreements resolving litigation arising from the receivership of Distinct Infrastructure Group Inc., and for a sealing order over the confidential settlement terms.

The court approved the settlements, finding them to be a fair and reasonable commercial resolution.

The court also granted the sealing order, applying the Sherman Estate test and finding that the public interest in promoting settlements and preserving commercially sensitive information outweighed the negative effects on the open court principle.

Hong Lam, a former mutual fund representative, brought a motion to set aside a Mutual Fund Dealers Association of Canada (MFDA) Hearing Panel Order, which had been filed as a Superior Court Order under the amended s. 151 of the Securities Act.

Lam argued the amendment should not apply retrospectively to his pre-enactment conduct and that it impacted his substantive rights.

The MFDA argued it was an immediate application to an ongoing situation or, alternatively, a procedural change.

The MFDA also brought a cross-motion for contempt, alleging Lam concealed property during an examination in aid of execution.

The court dismissed Lam's motion, finding that s. 151 applied immediately to the filing of the Hearing Panel decision, which occurred after the amendment, and was procedural in nature.

The court also dismissed the MFDA's cross-motion for contempt, finding that the MFDA failed to prove concealment beyond a reasonable doubt.

This decision addresses a special case brought under Rule 22.01 of the Rules of Civil Procedure to clarify the scope of the plaintiff's claim and damages following a Court of Appeal decision.

The plaintiff argued for a broad interpretation of her claim, including losses of pension, salary, benefits, and investment opportunity from 2008.

The defendants contended that the Court of Appeal's reasons, which upheld a finding that the limitation period commenced in 2011 upon the CRA's deregistration of the Individual Pension Plan (IPP), narrowed the claim to only damages related to the tax consequences of the IPP's deregistration.

The court agreed with the defendants, holding that the plaintiff's prior positions taken to avoid summary judgment and succeed on appeal were binding, thereby limiting the claim to tax-related losses from 2011 onwards and excluding earlier alleged damages.

The defendants sought summary judgment based on a settlement agreement they claimed the plaintiff had accepted.

The plaintiff argued the agreement was not binding due to a minor typographical error in the release and the inclusion of non-disclosure and non-disparagement terms.

The court found that a binding settlement agreement was concluded on December 12, 2017, as the plaintiff had clearly and unconditionally accepted the offer, including the non-disclosure terms.

The minor typographical error and the plaintiff's subsequent attempts to renegotiate did not constitute repudiation by the defendants.

The court granted summary judgment to the defendants, dismissing the plaintiff's claim.

The appellants appealed an application judge's order granting an oppression remedy to the minority shareholder respondents.

The application judge found that the majority shareholder's exercise of a drag-along right to force the sale of the respondents' shares was oppressive because the sale price was below fair market value, and ordered a valuation.

The Divisional Court allowed the appeal in part, holding that while the application judge did not err in finding a reasonable expectation that the drag-along right required a sale at fair market value, he erred in concluding the sale was below fair market value without evidence.

The court varied the order to make the valuation an interim step before determining if oppression occurred.

The appellants appealed a motion judge's order dismissing their summary judgment motions seeking to bar the respondent's claim as statute-barred under the Limitations Act, 2002.

The motion judge found that the respondent did not discover her claim until September 28, 2011, when the Canada Revenue Agency confirmed that her Independent Pension Plan did not comply with the Income Tax Regulations.

The respondent had established the IPP on the appellants' advice and transferred her commuted pension value to it.

The appellants argued the claim was discoverable by August 2009 when financial advisors and accountants opined the IPP would likely be revoked.

The Court of Appeal upheld the motion judge's decision, finding that the respondent's claim was essentially a tax case hinged on the CRA's determination, and it was legally appropriate to wait for the CRA's confirmation before commencing proceedings.

Following a finding of oppression, the applicants sought costs of $46,000 for the oppression application and $3,900 for a related application.

The respondents argued that an award of costs was premature.

The court agreed with the respondents, finding that it was premature to order costs on the oppression application and the related application given outstanding issues.

No costs orders were made at this time.

The defendants brought a motion for summary judgment, arguing the plaintiff's claim for negligent financial advice and misrepresentation was statute-barred under the Limitations Act, 2002.

They contended the plaintiff discovered her claim by August 2009 when she had concerns about her Individual Pension Plan (IPP) and sought legal advice.

The plaintiff argued the limitation period did not begin until September 28, 2011, when the Canada Revenue Agency (CRA) officially deregistered her IPP, as she could not have known of her loss or that a legal proceeding was appropriate before this final determination, especially given the defendants' prior reassurances.

The court dismissed the defendants' motion, finding the claim was timely.

Two former employees of MD Physician Services Inc. and MD Management Limited appealed a trial judgment finding that they breached non-solicitation agreements with their former employer.

The employees left MD in 2013 to join RBC Dominion Securities Inc., a competitor, and immediately began contacting MD's clients from memory to solicit their business.

The appellants argued the non-solicitation clause was ambiguous and unenforceable.

The Court of Appeal upheld the trial judge's decision, finding the clause was clear and reasonable, and that the employees' conduct constituted a breach of the non-solicitation agreement.

The plaintiff appealed an order requiring her to produce a letter sent by an accountant to her lawyer, claiming it was protected by solicitor-client privilege.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's determination that the plaintiff had given a clear, unconditional undertaking during discovery to produce the letter.

Furthermore, the court agreed that the communication did not fall within the specific categories where solicitor-client privilege attaches to third-party communications.

This endorsement addresses the costs of an action brought by CIT Financial Ltd. against several defendants, which was dismissed on summary judgment as statute-barred.

The defendants sought costs on a partial indemnity scale, including legal and expert fees.

The court considered the complexity, importance, and reasonable expectations of the parties.

While the court found the defendants were diligent in bringing their summary judgment motion after discoveries, it significantly reduced the claimed expert fees for Zeifmans (to one-third) and Duff & Phelps (to 50%).

This reduction was due to the defendants' experts' unreasonable refusal to cooperate with the plaintiff's expert, leading to unnecessary duplication of work in calculations.

Ultimately, CIT Financial Ltd. was ordered to pay the defendants legal fees totaling $1,706,147.92 and reduced disbursements (including expert fees) totaling $550,182.34.