Shara N. Roy

The Investigative Receiver sought various forms of relief, including a sealing order over asset valuations and an order requiring the respondent and his wife to disclose the use of proceeds from a $2.4 million mortgage on their family home.

The court granted the sealing order, finding it met the requirements of Sherman Estate.

The court also ordered the disclosure of the mortgage proceeds, finding the respondent's claim of ignorance regarding the funds to be not credible and determining that the information fell within the Receiver's investigative mandate.

The plaintiffs brought motions to compel the examination of a defendant on behalf of a corporate defendant and for further and better affidavits of documents from several defendants.

The parties agreed to dismiss the examination motion and portions of the production motion without prejudice.

The court ordered one defendant to produce certain financial documents relevant to personal enrichment and an itemized Schedule B list, but dismissed the remaining requests for further documents and better email descriptors, finding insufficient evidence of missing documents and that the current descriptors were proportionate.

The defendant law firm in a certified class action brought a motion to compel the representative plaintiff to answer questions refused during his examination for discovery.

The plaintiff argued the questions related only to individual issues, not common issues.

The court granted the motion, holding that the representative plaintiff is subject to the same discovery obligations as any plaintiff in a normal proceeding and must answer questions relevant to his own individual issues, even if he can refuse questions relevant only to other class members' discrete individual issues.

In a professional negligence class action regarding tax opinions provided for a timeshare donation program, the plaintiff brought a refusals motion seeking production of internal law firm memoranda.

The defendant law firm claimed quality assurance privilege and solicitor-client privilege over communications with its Ethics and Standards Committee.

The court held that a law firm can assert quality assurance privilege on a case-by-case basis using the Wigmore criteria.

After inspecting the documents, the court found they were privileged but ultimately irrelevant, and dismissed the refusals motion.

This appeal concerns whether a court has jurisdiction to extinguish a third party's gross overriding royalty (GOR) interest in land through a vesting order in a receivership proceeding.

The Court of Appeal held that while the court has jurisdiction under section 243 of the Bankruptcy and Insolvency Act to grant vesting orders, the motion judge erred in exercising that jurisdiction to extinguish the appellant's GORs, which constituted interests in land akin to ownership interests rather than fixed monetary claims.

However, the appellant failed to appeal within the prescribed 10-day period under the BIA Rules, and the justice of the case did not warrant an extension of time.

The appeal was dismissed, though the appellant retained the $250,000 payment it had received.

The appellant, an investor, sought damages from specific-project corporations on the basis of knowing assistance in a breach of fiduciary duty arising from a complex multi-million dollar real estate fraud perpetrated by a married couple.

The couple convinced investors to invest in specific-project corporations to acquire and hold commercial real estate, but instead diverted the funds for personal use.

The application judge dismissed the knowing assistance claim, finding the fraudulent wife's knowledge could not be imputed to the specific-project corporations.

The majority of the Court of Appeal allowed the claim.

The Supreme Court of Canada allowed the appeal, agreeing with the dissenting judge below that the knowing assistance claim must fail.

The Court clarified that while Livent permits courts to decline to apply corporate attribution where the public interest so requires, the minimal criteria from Canadian Dredge must always first be satisfied.

The applicant sought production of documents relating to a corporate acquisition that occurred three and a half years after the valuation date of his shares, arguing it was relevant to the valuation.

The respondents moved to strike the application.

The court dismissed the applicant's motion for production, holding that the mutually appointed valuator had the exclusive authority under the settlement agreement to determine the relevance of the post-valuation transaction.

The court struck the application against the third-party purchasers, finding they were improperly joined solely for discovery purposes, but declined to strike the breach of contract claim against the former employer, adjourning it pending the valuator's determination.

Following a successful appeal of an arbitration award, the appellants sought costs for the appeal and two preliminary motions.

The respondents argued success was divided and disputed the scale and quantum.

The court found the appellants were entirely successful and entitled to costs for the appeal and the preliminary motions, which were necessitated by the respondents' ill-advised motion to quash.

The court declined to award substantial indemnity costs, finding no reprehensible conduct, and fixed costs on a partial indemnity scale at $54,284.74.

The Ontario Securities Commission (OSC) brought a motion to quash an appeal and an application for judicial review filed by the respondent regarding an interlocutory evidentiary ruling.

The respondent had sought to exclude evidence based on solicitor-client privilege, which the OSC hearing panel dismissed.

The Divisional Court granted the motion to quash, finding that section 9(1) of the Securities Act only permits appeals of final decisions.

The court also quashed the application for judicial review on the basis of prematurity, holding that the case did not present exceptional circumstances warranting interference in an ongoing administrative proceeding.

The appellants appealed an arbitration award under s. 45 of the Arbitration Act, 1991, arguing the arbitrator exceeded his jurisdiction by directing the boards of two corporate parties to determine the profits of a non-party US corporation.

The Superior Court of Justice agreed, finding that an arbitrator cannot bind or govern the affairs of a non-party.

The appeal was allowed in part, and the specific paragraph of the formal judgment affecting the non-party was set aside and remitted to the arbitrator with directions.

An insolvent mining company, Dianor Resources Inc., had mining claims subject to gross overriding royalties (GORs) in favour of 2350614 Ontario Inc. (235Co).

A receiver was appointed and approved a sale of the mining claims to Third Eye Capital Corporation.

The motion judge granted a vesting order that purported to extinguish the GORs, finding they did not constitute interests in land.

The Court of Appeal reversed this finding, holding that the GORs were interests in land under the test established in Bank of Montreal v. Dynex Petroleum Ltd. The court found the motion judge made three legal errors: failing to examine the parties' intentions holistically, requiring the royalty holder to have entry rights, and mischaracterizing the interest from which the royalty was carved.

The court did not finally determine whether the motion judge had jurisdiction to extinguish the GORs and required further submissions on this issue and on remedies.

This is a costs decision following a successful appeal by the appellants.

The appellants sought recovery of costs from the respondents, specifically requesting the same amounts that had been awarded to them at first instance ($51,885.55 from Christine DeJong Medicine Professional Corporation and $14,017.28 from Dennis and Peggy Condos).

The respondents sought no costs, arguing that all parties were victims of fraud and that the contest was between victims.

The court awarded costs to the appellants as requested, finding this to be a just and fair disposition given that the appellants were successful on all aspects of the appeal and that no costs of the appeal had been awarded to them despite their success.

This complex appeal arises from a multi-million dollar commercial real estate fraud perpetrated by Norma and Ronauld Walton over several years.

The appellants (DBDC Applicants) and respondents (Schedule C investors) were all victims of the fraud.

The central issue on appeal concerns the priority of claims against proceeds from the sale of properties acquired as part of the fraudulent scheme.

The appellants sought damages against the Listed Schedule C Companies on the basis of knowing assistance in breach of fiduciary duty, while the respondent DeJong sought constructive trusts over certain properties.

The majority allowed the appeal in part, finding the Listed Schedule C Companies jointly and severally liable for $22.6 million in damages for knowing assistance, but set aside the constructive trust awards to DeJong.

The dissent disagreed with the knowing assistance finding, arguing the net transfer analysis was insufficient to establish participation by the Listed Schedule C Companies in the breach of fiduciary duty owed to the appellants.

This endorsement corrects factual errors in a previous endorsement dated May 24, 2017, regarding specific dates of telephone calls and property management appointments.

It also grants the plaintiffs' request for an order dismissing the limitations defence of the Bernstein defendants, which was an oversight in the prior decision.

Dr. Stanley Bernstein and his companies moved for summary judgment to dismiss claims of fraud, conspiracy, and oppression brought by Trez Capital Limited Partnership and others, arguing the action was statute-barred under the Limitations Act, 2002.

The central issue was whether a telephone call on September 13, 2013, provided Trez with sufficient notice of a claim to start the limitation period.

The court conducted a mini-trial on the limitation issue, weighing conflicting evidence regarding the content of the call.

The court found that Trez was not put on sufficient notice and that, even if it had been, a proceeding would not have been an appropriate means to seek remedy until the extent of loss from property sales by a receiver was known.

The motion for summary judgment was dismissed.

Following a successful motion by the defendants to prevent the plaintiffs from using extra-jurisdictional procedures to acquire documents from non-parties, the defendants sought partial indemnity costs of $75,365.38.

The plaintiffs argued for reduced costs of $15,000, citing the novelty and public interest of the issue under section 31 of the Class Proceedings Act, 1992.

The court rejected the plaintiffs' argument, finding the issue was not legally novel in a way that justified denying costs and noting the plaintiffs' conduct was improper.

The court awarded the defendants their costs as claimed.

The applicants sought an order under the oppression remedy provisions of the OBCA to force the sale of the respondents' shares in a jointly owned corporation, alleging an irreconcilable relationship breakdown and corporate deadlock.

The applicants also sought a winding up of related corporations.

The court found that the applicant, who was the sole director and officer, continued to operate the business successfully and had manufactured the alleged deadlock to circumvent a contractual moratorium on a shotgun buy-sell provision.

The application was dismissed as the court found no oppressive conduct and no justification for a just and equitable winding up.

Following a finding of civil fraud against the respondents, the applicants sought costs on a substantial indemnity basis.

The court awarded the applicants $550,832.92 in substantial indemnity costs due to the respondents' frivolous counter-application, concealment of information, and failure to deliver financial information.

The court also resolved costs claims from other involved parties, awarding various amounts on partial and substantial indemnity scales based on their respective offers to settle and participation in the proceedings.

Following a successful motion by the receiver to approve the sale of the respondent's assets to the applicant, and the dismissal of a cross-motion by a third party claiming royalty rights, the court determined the costs payable by the third party.

The court rejected the applicant's request for substantial indemnity costs, awarding partial indemnity costs instead.

The court found the applicant's claimed fees reasonable given the importance and complexity of the issues, and ordered the third party to pay $29,705 to the applicant and $3,996.81 to the Monitor.

The Receiver moved for an order approving the sale of the debtor's mining assets to the applicant.

A third party opposed the sale, arguing its gross overriding royalty (GOR) rights constituted an interest in land that could not be extinguished by a vesting order.

The court applied the Dynex test and found the GORs were merely contractual rights to share in revenues, not an interest in land.

The court granted the vesting order, extinguishing the GORs upon payment of their fair appraised value.

The third party's cross-motion for a storage lien under the Repair and Storage Liens Act was dismissed.