Robert Brush

The appellants appealed a motion judge's order appointing an inspector to investigate the financial affairs of their jointly owned pharmacies and granting the respondents leave to bring derivative actions on behalf of the corporations.

The appellants argued the dispute should be stayed in favour of arbitration, that an inspector was unnecessary, and that the oppression remedy was an adequate alternative to a derivative action.

The Divisional Court dismissed the appeal, finding that the arbitration clauses did not apply to the corporations, the appellants had attorned to the court's jurisdiction, the inspector was necessary to uncover facts after the appellants failed to comply with production orders, and the derivative actions were in the best interests of the corporations to recover diverted funds.

The decision concerns an application by Sherif Gerges Pharmacy Professional Corporation and Sherif Gerges for the appointment of an inspector under the Ontario Business Corporations Act to investigate the business and financial affairs of Seva Drug Mart Inc. and Eglinton Drugs Inc., as well as for leave to bring derivative actions on behalf of those corporations and Woodbine Downs Healthcare Realty Inc. The court granted the appointment of an inspector and leave to bring the proposed actions, rejecting the respondents' arguments that arbitration provisions applied and that certain claims were statute-barred.

The court also addressed the allocation of costs for the investigation and the proposed actions.

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.

The appellant, Capital Sports Management Inc., appealed a motion judge's order requiring the production of certain solicitor-client documents to the respondent, Trinity Development Group Inc. The motion judge had found an implied joint retainer of the law firm Gowlings by both parties in relation to a joint venture, and ordered production of documents up to the commencement of the litigation.

On appeal, the Divisional Court held that the implied joint retainer terminated in May 2016 when the parties became materially adverse and threatened litigation against each other.

Furthermore, the respondent had acquiesced to Gowlings continuing to act solely for the appellant after that date.

The appeal was allowed, and the production order was narrowed to exclude documents created after May 2016.

The moving party sought leave to appeal an order regarding the production of documents.

The Divisional Court granted leave to appeal on a single issue: whether the motion judge erred in ordering the production of documents after May 2016, having found an implied joint retainer among the parties and their counsel.

Costs of the motion were reserved to the panel hearing the appeal.

The plaintiff requested clarification regarding the scope of an order compelling production of documents.

The court had previously found a joint retainer existed between the plaintiff and the defendant.

The court clarified that as between joint venture parties, communications with the jointly retained lawyer relating to the subject matter of the joint venture are not privileged, even if the communications involved matters where the parties' interests were adverse or concerned withdrawing from the joint venture.

The defendants (Trinity Development Group Inc., Trinity Albert LP, and John Ruddy) brought a motion to compel Capital Sports Management Inc. (CSMI) and Eugene Melnyk to produce documents related to the work of Gowling WLG LLP for RendezVous LeBreton Group (RLG) and the LeBreton Project.

Trinity argued that Gowlings was jointly retained by CSMI and Trinity in relation to the RLG joint venture, or that common interest privilege applied, or that CSMI had waived privilege.

CSMI contended that Gowlings acted solely for CSMI.

The court found that a joint retainer existed between Gowlings, CSMI, and Trinity for the RLG and LeBreton Project from July 23, 2015, to November 23, 2018, based on objective evidence including Gowlings' representation of RLG to third parties, shared instructions, and shared payment of fees.

The court also noted that CSMI's pleading of a fiduciary relationship with Trinity was inconsistent with its claim of privilege.

The motion to compel production was granted, requiring CSMI to produce the requested documents in unredacted form.

This endorsement arises from a case conference in a complex action involving TD Bank and numerous insurance underwriters.

The court addressed the management of three pending discovery motions (defendants' refusals, plaintiff's refusals, and defendants' motion for a second discovery representative) and trial management issues.

The court declined the plaintiff's request to expand their refusals motion, permitted the plaintiff to withdraw their existing refusals motion without prejudice, and vacated the scheduled trial date of September 13, 2021, as the action was not ready.

The court provided specific case management directions for completing discoveries, updating motion materials, and preparing for a future trial date.

The moving defendants brought a motion for security for costs against the corporate plaintiff in an action arising from a failed joint venture to develop LeBreton Flats.

The court found there was good reason to believe the plaintiff had insufficient assets to satisfy a costs award, as its liabilities exceeded its assets.

The plaintiff failed to demonstrate sufficient exigible assets, relying instead on future revenue streams which the court found inadequate.

The court concluded it was just to order security for costs, noting the moving defendants were minor players facing significant expenses and the plaintiff's controlling shareholder would otherwise be shielded from costs liability.

The plaintiff was ordered to post security in instalments.

The defendants brought motions for summary judgment to dismiss the plaintiff's negligent misrepresentation claim arising from a real estate appraisal.

The plaintiff had relied on the appraisal to advance a second mortgage, but later discovered the property was worth significantly less.

The court granted the summary judgment motions, finding that the plaintiff's claim was statute-barred under the Limitations Act, 2002, as he knew or ought to have known he had suffered a loss more than two years before commencing the action.

The plaintiff shareholder brought a motion to appoint an interim receiver-manager for the defendant corporation, alleging oppressive conduct by management and the board of directors.

The defendants brought a cross-motion for summary judgment to dismiss the oppression action.

The court dismissed the plaintiff's motion, finding he failed to establish a strong prima facie case of oppression, irreparable harm, or that the balance of convenience favoured the appointment.

The court also dismissed the defendants' cross-motion for summary judgment, concluding that the plaintiff raised serious issues requiring a trial and that the claims were not clearly statute-barred.

Following decisions striking the mortgagors' statement of claim, dismissing their motion to amend, and granting summary judgment against them on a mortgage, the successful mortgagees sought costs.

The mortgagors also sought costs, arguing they made a Rule 49 offer to settle.

The court found the offer did not meet Rule 49 criteria as the judgment exceeded the offer and the offer did not account for the mortgagors' separate action for damages.

Given the contractual agreement for costs of enforcement and the mortgagors' obstructive litigation tactics, the court awarded substantial indemnity costs of $65,000 to the New Haven parties and $7,000 to Community Trust Company.

The plaintiff appealed a Master's refusal ruling made during examinations for discovery in a wrongful dismissal action involving a senior trading employee.

The appeal challenged the Master's refusal to compel answers to certain discovery questions and requests for document production, including historical trading records, settlement negotiation materials, metadata, bonus pool information, and board approval materials for a deferred payment plan.

Applying the proportionality principles under the Rules of Civil Procedure, the court held that the requested production would be disproportionate or irrelevant and that the Master made no palpable or overriding error.

The court emphasized deference to Masters on discovery matters and reaffirmed that proportionality governs the scope of discovery.

The appeal was dismissed.

The respondent, a former registered representative of the Investment Dealers Association of Canada (IDA), resigned from the IDA.

Over a year later, the IDA instituted disciplinary proceedings against him.

The respondent challenged the IDA's jurisdiction over former members.

The Ontario Securities Commission (OSC) upheld the IDA's jurisdiction, finding that s. 21.1(3) of the Securities Act did not limit disciplinary jurisdiction to current members.

The Divisional Court overturned this decision, finding it unreasonable.

On appeal, the Court of Appeal held that the standard of review for the OSC's decision was reasonableness and that the OSC's interpretation of the Securities Act was reasonable.

The appeal was allowed, and the OSC's decision was restored.

The appellant, a former member of the Investment Dealers Association (IDA), challenged the IDA's jurisdiction to discipline him after he ceased to be a member.

The IDA's by-laws permitted discipline of former members for up to five years, and the Ontario Securities Commission upheld this jurisdiction.

On appeal, the Divisional Court applied a reasonableness standard of review and found that the Securities Act only authorizes the regulation of current members.

The court concluded that the IDA's by-law contravened the Act and that the IDA lacked jurisdiction to discipline former members.

The appeal was allowed.

The third parties, who were directors and officers of the plaintiff company, sought leave to appeal an interlocutory order refusing to strike out third party claims brought against them personally by the defendant auditors.

The defendants had been sued for negligence in performing audits and sought contribution and indemnity from the third parties for their alleged tortious personal conduct.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions and no good reason to doubt the correctness of the motions judge's decision, as the pleadings properly founded a reasonable cause of action against the third parties.