Stephen F. Gleave

The moving party brought a motion for leave to appeal a prior costs decision.

The Divisional Court dismissed the motion for leave to appeal without costs.

The court found that King Ursa Inc. constructively dismissed Joanna S. McFarlane by demoting her and reducing her salary after her return from maternity leave.

The employer failed to prove that McFarlane did not mitigate her damages.

The court awarded her twelve months’ notice, calculated damages, and moral damages for the insensitive handling of her employment, but declined to find discrimination or award punitive damages.

This decision concerns a dispute between Sound Insurance Services Inc. and Chris Hossein, a former insurance producer, and his new employer, Greensides & Breen Insurance Brokers Limited.

The case addresses breach of contract, inducement of breach, breach of confidence, and civil conspiracy arising from the failed transfer of a book of business.

The court found Mr. Hossein liable for breach of contract and breach of confidence, and Greensides liable for inducing the breach.

Damages were assessed at $350,000, plus interest and costs.

The decision addresses a motion by Greensides & Breen Insurance Brokers Limited to compel Sound Insurance Services Inc. and Chris Hossein to answer certain refused questions and to provide further and better answers to undertakings arising from examinations for discovery.

The court found that Greensides did not require leave to bring the motion, refused to compel answers to the disputed questions, but ordered Sound to provide more detailed responses to five undertakings.

The court granted the defendants leave to amend their Amended Statement of Defence, finding that the proposed amendments—alleging an oral agreement regarding a book of business and constructive dismissal—would not cause non-compensable prejudice to the plaintiff.

The decision reviews the legal test for amendments under Rule 26.01 of the Rules of Civil Procedure, emphasizing that amendments should be allowed unless they cause injustice not compensable by costs or adjournment, are not tenable at law, or lack sufficient particulars.

The court found that the delay in seeking the amendments was explained and did not result in actual prejudice to the plaintiff, and that the amendments were based on facts already known to the parties.

The court dismissed Tar Heel Investments Inc.'s claims against H.L. Staebler Company Limited, Lisa Arseneau, and Debbie Sutton regarding the alleged wrongful sale and use of a transportation insurance book of business.

The court found that Arseneau was not merely an employee but entered into a quasi-partnership with PDI, retaining ownership of her book of business.

No binding agreement was reached regarding the TRIP book of business, and Arseneau was constructively dismissed when her employment terms were unilaterally changed.

The court held that neither fiduciary nor confidentiality duties survived the constructive dismissal, and there was no conversion, conspiracy, or breach of contract by the defendants.

The action was dismissed.

This appeal concerned the enforceability of a restrictive covenant in the context of a dentistry practice sale.

The appellants, Dr. Cooke, 6326471 Canada Inc., and Dr. B. Zaricniak Dentistry Professional Corporation, challenged a five-year, 15 km non-competition covenant after Dr. Cooke terminated his association and began working at a nearby practice.

They argued the trial judge erred in applying the burden of proof and in finding the covenant's duration and geographic scope reasonable.

The Court of Appeal dismissed the appeal, affirming that restrictive covenants in commercial contexts are presumed valid and attract less scrutiny than in employment, and upheld the trial judge's assessment of the covenant's reasonableness.

The appellant appealed a trial decision regarding the interpretation of a Share Purchase Agreement and the calculation of an earn-out provision (Target EBITDA).

The trial judge had found that the respondents constructively dismissed two key salespeople and engaged in oppressive conduct, reducing the Target EBITDA accordingly, but refused to further reduce it by a settlement amount the respondents received for a stolen book of business.

The trial judge also refused to adjust the Lower Threshold in the earn-out formula.

The Divisional Court dismissed the appeal, finding no error in the trial judge's contractual interpretation or his crafting of the oppression remedy, which properly validated the reasonable expectations of the parties as set out in the agreement.

A cross-appeal on costs was also dismissed.

On the first day of trial, the Plaintiff brought a motion seeking the production of redacted portions of an email and a non-disclosed attachment, which the Defendants claimed were protected by solicitor-client privilege.

The court found that the Defendants' use of boilerplate language for Schedule "B" in their affidavits of documents did not comply with Rule 30.03(2)(b) of the Rules of Civil Procedure, as it failed to provide sufficient information to challenge the privilege claim.

The court ordered the Defendants to immediately provide a detailed description of the documents, including their nature, sender, receiver, and the specific grounds for the claimed privilege, to enable the Plaintiff to properly assess and potentially challenge the privilege or argue implied waiver.

Following an injunction motion where the defendants were largely successful, the defendants sought elevated costs based on the plaintiffs' post-motion conduct.

The defendants alleged the plaintiffs sent misleading correspondence to clients and lawyers claiming they had won the injunction.

The court held that post-motion conduct outside the litigation process is not a valid basis for elevated costs under Rule 57.01.

The court awarded the defendants $25,700, representing one-half of their partial indemnity costs, reflecting their divided success and the late timing of their settlement offer.

The plaintiffs, who operate a specialized First Nations Specific Claims insurance business, brought a motion for an interlocutory and permanent injunction against former employees and independent contractors who started a competing brokerage.

The plaintiffs sought to prohibit the defendants from competing, soliciting clients, and using confidential information.

The court dismissed the motion, finding no non-competition or non-solicitation agreements existed, and the plaintiffs failed to establish a strong prima facie case that the defendants misused proprietary information.

The court ordered the defendants to return and delete any of the plaintiffs' confidential information in their possession, as proposed by the defendants.

The court rendered a costs endorsement following the decertification of a class action.

The defendants, who were entirely successful in the decertification motion, sought substantial indemnity costs.

The court found the plaintiff's and class counsel's pursuit of the decertification motion to be excessive and unnecessary, particularly given that almost all class members had opted out.

Despite the plaintiff's argument that high costs would chill future class actions and cause financial disaster, the court emphasized the duty of counsel to avoid unnecessary litigation and the expectation of an indemnity agreement for class counsel.

The court awarded the defendants $100,000 in costs, a reduction from their requested amount but still an elevated level, acknowledging the disparity in costs incurred by both parties.

The defendants brought a motion to decertify a class action, arguing that a mass opt-out of 66 out of 69 potential class members meant the action no longer met certification criteria, particularly the "preferable procedure" requirement.

The plaintiff opposed, seeking further production and challenging the class list.

The court found the plaintiff's objections to the class list meritless and an abuse of process, given the late timing.

It held that with only one or a few remaining class members, the class action no longer served the goals of access to justice, judicial economy, or behavioral modification, as individual claims were economically viable and the class action could potentially harm the interests of those who opted out.

The motion to decertify was granted.

This is an appeal from a trial judgment concerning a breach of an employment contract.

The appellants, Verge Insurance Brokers Ltd. and Mark Sherk, challenged the trial judge's findings on liability and damages.

The core dispute revolved around the interpretation of a contractual provision allowing the respondent, Ryan Lindsay, to purchase his book of business upon resignation.

The Court of Appeal upheld the trial judge's conclusion that Verge breached the contract by failing to provide accurate account information and sufficient time for Lindsay to close the transaction.

The court affirmed the trial judge's damages award, applying a standard of substantial deference to contractual interpretation and factual findings on loss of profits.

The Court of Appeal for Ontario heard an appeal and cross-appeal concerning damages for conversion of a "book of business" in the transportation insurance industry.

The trial judge had found conversion of one book (TRIP book) but not another (Kimberly book), and did not fully address other causes of action like breach of contract, breach of confidence, and fiduciary duty.

The Court of Appeal found that the trial judge's conversion analysis was flawed, particularly regarding the nature of intangible property and the sufficiency of findings.

It also held that the trial judge erred by not separately addressing the other pleaded causes of action.

Consequently, the Court allowed both the appeal and cross-appeal, set aside the trial decision, and ordered a new trial on all causes of action.

At a case conference in a certified class action, the parties discussed scheduling upcoming motions.

The plaintiff sought to amend the Statement of Claim to add unjust enrichment, which the defendants opposed as it could impact the certification analysis.

The defendants proposed a motion to decertify the action due to a low number of class members.

The court scheduled the decertification motion for April 2023 and directed the plaintiff to defer their motion to amend until after the decertification motion is decided.

In Phase III and IV of a trial concerning a Share Purchase Agreement, the court determined whether the 'Lower Threshold' used to calculate a deferred payment could be adjusted downwards due to the constructive dismissal of employees.

The court held that the plain wording of the agreement only permitted deductions from the Target EBITDA, not the Lower Threshold, and declined to imply a term.

On costs, the court ordered the plaintiff to repay $124,708.37 in fees advanced for a derivative action, awarded the defendants $10,000 for a production motion, and ordered the parties to bear their own costs for the main actions due to mixed success.

This case conference addressed three issues in a class action: the plaintiff's counsel's use of the defendants' corporate logo, the opt-out deadline for class members, and the defendants' communications with class members.

The court directed the plaintiff's counsel to cease using the logo to avoid confusion, set a revised opt-out deadline of April 3, 2022, and found no evidence of misconduct in the defendants' communications, noting that a high opt-out rate was foreseeable due to the nature of the claim.

The moving parties brought a motion for leave to appeal an earlier order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party in the agreed amount of $20,000.

The plaintiff withdrew its motion for an interlocutory injunction regarding the alleged misappropriation of confidential information by former employees.

The defendants sought costs of the abandoned motion on a substantial indemnity scale under Rule 37.09(3).

The court exercised its discretion to order costs in the cause, finding that the plaintiff acted reasonably in pursuing the injunction initially and that the work done on the motion would be useful at trial.