Peter W. G. Carey

The court considered whether to dismiss the plaintiffs' action for delay under Rule 48.14 of the Rules of Civil Procedure.

The plaintiffs argued that the delay was due to their former counsel and the conduct of the defendants, and that they always intended to prosecute the action.

The court refrained from deciding the motion, directing that the former counsel be served with the motion materials and given an opportunity to respond, as the allegations against him could affect his interests and the fairness of the process.

This decision concerns two related lawsuits between siblings over the estate of their late mother, Carmen Debono.

The first action is for wrongful dismissal and oppression by David Debono and Elizabeth Muscat against the estate, its trustees, and two corporations.

The second is a claim by the estate, through its trustees, against David Debono, Elizabeth Muscat, and Jennifer Nesci for recovery of debts and alleged misappropriation of funds.

The court addresses interim motions for distributions and legal fees, as well as document production and the effect of an in terrorem clause in the will.

Both motions are dismissed, with the court emphasizing the need for transparency and full disclosure, and declining to enforce the in terrorem clause or grant interim relief at this stage.

The respondent, Framatome Canada, moved to quash the appellant's appeal of an associate judge's order regarding document production, arguing the order was interlocutory and brought in the wrong court.

The appellant cross-moved to transfer the appeal to the Superior Court of Justice.

The court agreed that the underlying order was interlocutory and that it lacked jurisdiction to hear the appeal.

However, rather than dismissing the appeal, the court granted the cross-motion to transfer the matter to the Superior Court of Justice.

Costs of both motions were reserved to the judge hearing the appeal.

The applicant, Framatome Canada, brought a motion seeking disclosure and production of company documents retained by the respondent, William Cooper, after his termination, along with a list of retained files, re-attendance for cross-examination, and leave to amend its notice of application.

Cooper opposed, arguing the motion was an abuse of process and that he had an agreement to retain the documents.

The court granted Framatome Canada's motion, finding the documents relevant for testing Cooper's assertions and that the motion was not an abuse of process.

The Court of Appeal for Ontario issued an endorsement on costs and minor revisions to its January 26, 2024 disposition of an appeal and cross-appeal.

The primary issue was whether Buduchnist Credit Union Limited (BCU) breached a Mareva Order and the consequences.

Trade Capital Finance Corp. (Trade Capital) was substantially successful on the breach and remedy issues, leading to BCU losing priority as a secured creditor and being unable to immediately enforce its judgment.

The court also addressed BCU's request for minor factual revisions to the previous reasons, adopting some and rejecting others.

This appeal concerned the breadth of the court's jurisdiction to address a breach of a Mareva order and abuse of process.

The appellant, Trade Capital Finance Corp., appealed a distribution order in favour of the respondent, Buduchnist Credit Union Limited (BCU).

BCU had made advances to clients in breach of a Mareva order and subsequently obtained consent judgments.

The motion judge found BCU breached the Mareva order, disallowed its secured claim for post-Mareva advances, but allowed it to enforce as an unsecured judgment creditor.

Trade Capital argued the enforcement should be delayed.

BCU cross-appealed its loss of priority.

The Court of Appeal found that the motion judge erred in limiting his discretion.

It held that the court has broad inherent jurisdiction to respond to a breach of its orders, including delaying enforcement of claims arising from such breaches.

The Court allowed Trade Capital's appeal, ordering that BCU's judgment enforcement for post-Mareva advances be delayed until Trade Capital's action is determined, with both parties collecting pari passu if Trade Capital succeeds.

The cross-appeal by BCU was dismissed.

The issue of specific Woodland Property advances was remitted for further adjudication.

The defendant brought a motion to strike portions of the plaintiff's amended statement of claim alleging defamation.

The defamation claim was based on statements communicated by the defendant to the Ontario Motor Vehicle Industry Council (OMVIC) regarding customer complaints and alleged ethical breaches by the plaintiff.

The defendant argued that these statements were protected by absolute privilege.

The court granted the motion, finding that confidential communications of complaints to a statutory body exercising disciplinary powers, as a step incidental to quasi-judicial proceedings, are protected by absolute privilege, thus disclosing no reasonable cause of action for defamation.

The appellant, Princes Gates GP Inc. (PG), appealed a trial judgment finding it liable for breach of contract and bad faith termination of agreements with the respondent tenant, 2505243 Ontario Limited (250), a food services provider.

The trial judge awarded 250 reliance damages and employee compensation damages.

PG argued errors in findings of improper termination, refusal to assist with the Canada Emergency Commercial Rent Assistance Program (CECRA), bad faith, and damages calculation.

The Court of Appeal dismissed PG's appeal, upholding the trial judge's findings that PG's actions contributed to 250's inability to pay rent, their refusal to assist with CECRA was unjustified, and their termination was in bad faith by misleading 250 while secretly negotiating with a new provider.

The court also affirmed the reliance damages award and the employee compensation damages.

The Court of Appeal for Ontario heard a motion by 94 former employees (proposed interveners) to intervene as an added party in an appeal between 2505243 Ontario Limited and Princes Gates GP Inc. The employees sought to protect a $2.063 million fund set aside for their potential termination claims by the trial judge.

The motion was opposed by Princes Gates GP Inc., while 2505243 Ontario Limited took no position.

The court dismissed the motion, finding that although the proposed interveners had a direct financial interest, their submissions would largely duplicate those of 2505243 Ontario Limited and risked introducing a new, unlitigated issue (common employer) from a separate class proceeding.

Trade Capital Finance Corp. (TC) and Buduchnist Credit Union Limited (BCU) filed opposing motions in an insolvency appeal.

TC sought an extension of time and leave to appeal a lower court's final disposition order concerning the distribution of receivership proceeds, arguing the order allowed BCU to enforce judgments arising from transactions in breach of a Mareva order.

BCU sought to lift the automatic stay of proceedings and security for costs.

The Court of Appeal granted TC's motions for extension of time and leave to appeal, finding the appeal prima facie meritorious and raising issues of general importance regarding Mareva orders and creditor enforcement in insolvency.

The court denied BCU's motions to lift the stay and for security for costs, concluding that the BIA governed the appeal and that lifting the stay would render TC's appeal moot, and that security for costs was not fitting given BCU was the applicant below and TC's insolvency stemmed from the alleged fraud.

The appellant union appealed an injunction granted during a labour dispute that had enjoined a blockade of the employer's premises.

The union had admitted the illegality of their actions and irreparable harm.

The appeal argued that the injunction's terms unnecessarily restrained lawful strike activity.

The Court of Appeal dismissed the appeal as moot because the underlying dispute had been settled.

The court declined to exercise its discretion to hear the moot appeal, finding the motion judge's decision was fact-specific and did not raise questions of public importance beyond the resolved dispute.

The Court of Appeal for Ontario heard an appeal concerning the testamentary capacity of a deceased who wrote a holograph will (suicide note) shortly before his death, while under the influence of alcohol and drugs.

The lower court had found a lack of testamentary capacity and issued a blended costs order.

The appellate court revisited the determination of testamentary capacity in suspicious circumstances and the principles governing costs in estate litigation.

The Court found that the application judge erred in principle by failing to apply the correct legal test for testamentary capacity and concluded that the deceased did possess testamentary capacity.

The Court also found that the costs order below was wrongly decided, as the public policy considerations in estate litigation dictated that costs should generally be paid from the estate when the litigation arises from the testator's conduct or suspicious circumstances surrounding the will.

The appeal was allowed, the suicide note was declared a valid will, and the costs order was set aside, with new costs orders made payable from the estate.

The plaintiff, Trade Capital Finance Corp., brought a motion to compel the defendant, Carlo De Maria, to make full disclosure and produce documents relating to the operation of The Cash House Inc. and related corporations.

The plaintiff alleged it was defrauded of millions of dollars and that the stolen funds were funneled through these corporations.

The court found that De Maria retained power and control over the documents despite a purported sale of the business.

The court ordered De Maria to serve a further and better affidavit of documents and produce the requested records, subject to specific rulings on individual categories of documents.

Following a previous decision, the parties reached an agreement on the costs of the motion.

The court ordered the plaintiffs to pay the defendant $10,000 inclusive of HST and disbursements, in accordance with the parties' agreement.

The plaintiff employers brought an urgent motion for an interim interlocutory injunction to restrain a former employee from disclosing confidential information, soliciting clients, and competing with their live events business.

The court applied the RJR-Macdonald test and found that while there was a serious issue to be tried, the plaintiffs failed to demonstrate irreparable harm, as any potential damages could be quantified and compensated financially.

The balance of convenience favoured the defendant, as an injunction would prevent him from earning a livelihood in his chosen field.

The motion was dismissed without prejudice to a full hearing on a complete record.

The plaintiff, a food and beverage operator, sued the defendant hotel for unlawful and bad faith termination of their commercial leases and service agreements.

The hotel terminated the agreements during the COVID-19 pandemic, alleging unpaid rent and other breaches, while secretly negotiating with a replacement operator.

The court found the termination was unlawful and in bad faith, as the hotel wrongfully withheld deposits, owed the plaintiff money, and unreasonably refused to assist with a government rent subsidy application.

The court awarded the plaintiff reliance damages for its capital investments and employee termination costs, less a set-off for the hotel's proven counterclaim.

The plaintiff franchisor requested the immediate scheduling of a motion for injunctive relief on the basis of urgency during the COVID-19 pandemic, which the defendant franchisees opposed.

The court found that the dispute, which centered on unpaid royalty fees and had been ongoing since September 2019, did not meet the criteria for urgent scheduling under the court's COVID-19 notices.

The request for immediate scheduling was denied, and a timetable was set for the motions to be heard at a later date.

This endorsement determines the quantum and payer of costs following a dismissed application by Sandra Krolewski and Edward Medeiros to set aside the 2015 Will of Eduardo Medeiros.

The respondent, Maria Natalia Moniz, was the successful party in the main application.

The court awarded Moniz partial indemnity costs of $46,349.74, reducing the amount sought due to proportionality and duplication of counsel.

The costs were ordered to be paid by the applicants, not the estate, as their will challenge based on lack of testamentary capacity and undue influence was found to be unjustified and not supported by their own expert's opinion.

The applicants challenged the validity of their late father's 2015 Will, alleging lack of testamentary capacity, suspicious circumstances, and undue influence by his common-law spouse, the respondent.

The testator executed the new Will shortly after a terminal cancer diagnosis, leaving his half-interest in the jointly owned home to the respondent, while his children still received his RRSPs and vehicle.

The court declined to convert the application to a trial, finding the documentary record sufficient.

The court held that the applicants failed to rebut the presumption of testamentary capacity, as the circumstances surrounding the Will's execution were not suspicious and there was no evidence of undue influence.

The application was dismissed and the 2015 Will was declared valid.

This endorsement addresses the issue of costs following a successful motion by the defendants.

The defendants sought $200,000 in costs, arguing it was a discount from their partial and substantial indemnity costs, citing extensive motion records, witness evidence, cross-examinations, and rejected settlement offers.

The plaintiff requested costs be reserved to the trial judge or argued the claimed costs were excessive, noting their own partial indemnity costs were significantly lower.

The court declined to reserve costs, affirming the defendants' entitlement as successful parties.

However, the court found the defendants' claimed costs excessive, noting they were double the plaintiff's costs, and fixed the costs at $150,000, all-inclusive, payable within 30 days, emphasizing the need for costs to be reasonable in the circumstances.