Mitchell Fournie

The defendants sought to remove Stikeman Elliott LLP as counsel for the plaintiffs and to require destruction of documents containing their solicitor-client privileged information, alleging improper handling of privileged communications.

The court found that the privilege in the relevant emails was jointly held by both the sellers and the companies in the Ellis Group, and that the amalgamated company (Ellis Packaging Limited) continued to hold the privilege after the share purchase.

The motion was dismissed.

The defendants, Dentons Canada LLP and Philip Rimer, brought a third-party claim against various individuals and entities, including other lawyers and advisors, seeking contribution and indemnity in a professional negligence action.

The third parties brought Rule 21 motions to strike the third-party claim, arguing that they acted as agents for the plaintiff and therefore any negligence on their part would be attributable to the plaintiff, precluding a third-party claim.

The court struck the claims against one director (Wang) and the escrow agent, finding them doomed to fail based on agency and contractual principles.

However, the court allowed the claims against the other third-party advisors and lawyers to proceed, finding that they fell into a category of non-agency advisory roles where the plaintiff might not be held contributorily responsible for their actions.

Leave to amend was granted to particularize the claims against certain third parties.

This is an appeal from a summary judgment motion that found the appellants liable for knowing assistance and knowing receipt in a fraudulent scheme.

The Court of Appeal found that the motion judge erred by drawing unwarranted inferences of liability based largely on the mere rejection of the appellants' evidence, rather than requiring positive proof.

The motion judge also made speculative and stereotypical findings regarding the appellants' credibility and financial arrangements.

The Court held that the rejection of a witness's evidence does not amount to positive proof of the opposite proposition.

The appeal was allowed, the summary judgment set aside, and the case remitted to the Superior Court for trial.

The Gilmans moved to dismiss a construction lien action and a civil counterclaim brought by 2675076 Ontario Inc. and Cesare Fazari, citing persistent non-compliance with court orders and undertakings regarding documentation of alleged outstanding construction costs.

The court found that 2675076 Ontario Inc. failed to diligently advance the construction lien action as required by the Construction Act.

Consequently, the construction lien was vacated, and the Construction Lien Action was dismissed.

While acknowledging the persistent non-compliance, the court, applying Rule 60.12, granted 2675076 Ontario Inc. and Mr. Fazari one final 30-day opportunity to fulfill outstanding undertakings for the Civil Counterclaim, failing which it would also be dismissed.

The plaintiffs, Quantum Dealer Financial Corporation and NextGear Capital Corporation, brought a motion for summary judgment against the Guillen Defendants (Claudia Guillen Aracely, Jasmin Ivonne Guillen, 2564523 Ontario Inc., and Garnette C. Williams) and sought default judgment against Toronto Fine Cars and Leasing Inc. and Diego Sebastian Diaz.

The plaintiffs alleged that Diego Diaz, controlling shareholder of Toronto Fine Cars, fraudulently dissipated assets from the dealership by selling financed vehicles and failing to remit proceeds.

They further alleged that the Guillen Defendants assisted in and knowingly received these fraudulently obtained funds, using a newspaper business (Compra Y Venta, operated by 256 Corp.) as a money laundering vehicle.

The court found the Guillen Defendants' explanations for financial transactions and marital breakdown narrative to be incredible and inconsistent, exhibiting "badges of fraud." The court granted default judgment against Diego Diaz and Toronto Fine Cars and summary judgment against the Guillen Defendants, finding them jointly and severally liable for the unremitted proceeds, NSF charges, contractual interest, and punitive damages, based on the doctrines of knowing assistance and knowing receipt.

The plaintiffs brought a motion for an interlocutory injunction to enforce non-competition and non-solicitation clauses against a former financial advisor who had sold his book of business to them seven years prior.

The court found the non-competition clause to be overbroad and unenforceable, but upheld the non-solicitation clause as reasonable and severable.

Finding a strong prima facie case of breach, irreparable harm, and a balance of convenience favouring the plaintiffs, the court granted a limited injunction prohibiting the defendant from soliciting his former clients and using the plaintiffs' business records.

The moving parties, Project Spokane, LLC and Sean Walsh, brought a motion for leave to appeal an October 8, 2020 order of Conway J. in a bankruptcy proceeding.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

The defendants unsuccessfully moved to set aside ex parte orders granting the plaintiffs leave to register certificates of pending litigation and appointing a monitor.

The plaintiffs sought costs of the motion payable forthwith, while the defendants argued costs should be in the cause due to unproven allegations of civil fraud.

The court ordered the defendants to pay $5,000 forthwith for the portion of the motion relating to the certificates of pending litigation.

However, the court held that the $35,000 in costs for the portion relating to the monitor should be payable to the plaintiffs only if they are ultimately successful in the litigation.

The applicants, former owners of CryptoGlobal, sought the appointment of an independent inspector to investigate HyperBlock Inc. following an amalgamation.

They alleged oppressive conduct, conflict of interest by HyperBlock's CEO (Sean Walsh) in the acquisition of Project Spokane assets, overvaluation, and a significant post-closing decline in HyperBlock's value not fully explained by market forces.

The court found a prima facie case of oppression and an "index of suspicion" warranting an investigation, citing issues like cash flow irregularities, resignations of financial officers, lack of transparency, and potential conflicts of interest among management and directors.

The court ordered the appointment of BDO Canada Limited as an inspector.