Leon J. Melconian

In an oppression application under s. 248 of the Business Corporations Act, the applicant sought declarations of 50% ownership and broad accounting relief concerning multiple closely-held ventures.

The court found, on objective intention and course-of-conduct evidence, that the parties had agreed to equal ownership and profit-sharing in two ongoing ventures, and that non-disclosure and non-accounting conduct was oppressive and unfairly prejudicial.

Relief against one corporation tied to a restaurant sold in 2018 was statute-barred under the Limitations Act, 2002.

The court declared 50% share ownership in the remaining corporations, ordered issuance of shares, full financial disclosure and accounting, and payment over of any amounts found owing.

Costs of $30,000 were awarded to the applicant.

The plaintiff security company sued two former part-time supervisors and a related corporation for breach of fiduciary duty, misuse of confidential information, and wrongful competition after they were laid off during the COVID-19 pandemic.

The defendants counterclaimed for constructive dismissal and intentional interference with economic relations.

The court dismissed the plaintiff's claim, finding the defendants were not fiduciaries, did not possess confidential information, and were free to work for competitors.

The court also dismissed the counterclaim, finding the defendants failed to prove any damages for constructive dismissal and failed to establish an actionable wrong for the intentional interference claim.

The applicant, Unitop, sought a declaration and injunction against the respondent, Exclusive, alleging breach of a 2015 default judgment and trademark infringement/passing off.

Unitop claimed Exclusive's "ORIGINAL SESAME" product, with similar packaging and UPC codes, infringed on Unitop's "SESAME SNAPS" intellectual property.

The court found the 2015 default judgment ambiguous and not applicable to Unitop's new packaging design (adopted in 2020) or Exclusive's "ORIGINAL SESAME" product (introduced in 2021).

The court also determined that Unitop failed to prove valid and enforceable trademark or copyright rights in its new packaging design or establish the elements of passing off, particularly distinctiveness and confusion.

The application was dismissed.

This appeal concerned a pre-construction agreement of purchase and sale for a condominium unit.

The vendor purported to terminate the agreement, alleging the purchasers breached a clause prohibiting leasing without consent.

The application judge found the termination wrongful and granted specific performance.

On appeal, the Court of Appeal affirmed the lower court's decision, holding that the vendor lost its right to terminate by failing to act within a reasonable time after the alleged breach.

The Court further upheld the award of specific performance, finding that damages were an inadequate remedy given the advantageous terms of the original agreement, the rising real estate market, the purchasers' tied-up deposit, and the vendor's bad faith in attempting to re-sell the unit to related parties at an undervalue.

The issue regarding the subsequent lease to tenants became moot.

Following a judgment granting the applicants relief from forfeiture and specific performance for a condominium unit, the applicants sought full indemnity costs of $73,535.05 based on the respondents' alleged grave misconduct.

The respondents argued for partial indemnity costs in the range of $25,000 to $35,000.

The court found that while the respondents engaged in misconduct, it did not warrant an elevated costs award.

The court awarded the applicants partial indemnity costs fixed at $45,000 inclusive of disbursements and HST.

The plaintiff brought a motion to compel the law firm DJD to disburse $338,627.56 held in trust pursuant to prior court orders.

The funds were the proceeds of property sales related to a fraud and misrepresentation action.

Following a settlement where the defendants relinquished their claim to the funds, DJD refused to release the money, asserting priority for its own legal fees and subsequently issuing notices of garnishment on behalf of new clients (the garnishment creditors) against its former clients.

The court held that the funds were held in trust for the plaintiff pending the litigation's outcome and did not constitute a debt payable to the defendants.

The plaintiff was granted priority over the garnishment creditors, and DJD was ordered to release the funds.

Non-party moving parties sought to set aside or vary a default judgment injunction that prohibited marketing and distribution of a competing sesame candy product with allegedly infringing packaging.

The court held that the moving parties, former distributors and purchasers of the defendant’s assets, were fully aware of the underlying claim and failed to show that their evidence would have led to a different result under Rule 37.14.

Applying the Trade-marks Act confusion analysis, the court found the competing product and packaging were confusingly similar and were marketed to former customers in a manner constituting passing off.

The court also held that the respondent, a Polish corporation, had standing to enforce copyright in Canada because Poland is a treaty country under the Berne Convention, and that injunctive relief did not depend on proof of quantified damages.

The motion was dismissed and costs of $25,000 were awarded.

The appellants appealed an order striking out their Fresh as Amended Statement of Claim and imposing terms on a discontinuing plaintiff.

The appellants abandoned the pleading argument after delivering a revised claim.

The Court of Appeal found the motion judge erred by prematurely requiring the discontinuing plaintiff to deliver an affidavit of documents and submit to discovery before pleadings were closed, setting aside those terms.

The Court also found the motion judge's $45,000 costs award excessive and varied it to $10,000.

The plaintiff bank demanded payment of an outstanding loan and obtained an ex parte order under Rule 20.01(2) to serve a summary judgment motion with its statement of claim.

The defendants sought an adjournment, which the Master refused, granting summary judgment.

On appeal, the defendants argued that Rule 20.01(1) precludes hearing a summary judgment motion before a statement of defence is filed.

The Divisional Court dismissed the appeal, holding that Rule 20.01(2) allows for an accelerated return of the motion where special urgency is shown, requiring the defendant to expeditiously file a defence and respond.

The applicant sought leave to appeal a decision of Wilkins J., which had set aside a Master's order requiring production of communications between a creditor and the bankruptcy trustee.

Wilkins J. had found that while strict common interest privilege did not apply, the communications were privileged on public policy grounds because the parties had a common intent agreement and the trustee's solicitor was acting as the solicitor for the creditor.

MacFarland J. dismissed the application for leave to appeal, finding no good reason to doubt the correctness of Wilkins J.'s decision and noting that the issues did not transcend the interests of the parties.