Lincoln Caylor

The court granted Jason Allison's motion for production of financial documents from CMC Consumer Credit Limited, CMC Capital Inc., and Michael Smith.

Allison was found entitled to the documents as a shareholder under a Shareholders’ Agreement, as a trust beneficiary, or as an intended director.

The court rejected the defendants’ arguments regarding clean hands, limitation periods, and the status of Allison as a defaulting or beneficial shareholder.

The court also fixed costs in Allison’s favour.

The defendants, Michael Slattery and Skylark Holdings Ltd., brought a motion for summary judgment to dismiss the action against them.

They argued that the plaintiffs had not sustained any damages and had breached the immediate disclosure rule by failing to disclose a partial settlement agreement.

The court dismissed the motion, finding a genuine issue for trial regarding damages due to conflicting evidence on reliance, and determining that the partial settlement did not significantly alter the litigation dynamics to constitute a breach of the immediate disclosure rule.

This endorsement concerns two motions for court approval of settlements and a trust variation under Rule 7.08 of the Rules of Civil Procedure and Section 1(1) of the Variation of Trusts Act.

The primary applicant, an elderly individual under disability, sought approval of two settlements: one with his former executive assistant, Jenny Bassett, and another with his nephew, Sotheby Ketchen.

These settlements aimed to resolve disputes regarding the validity of trust amendments, the appointment of trustees, and the individual's capacity.

The court also addressed the nunc pro tunc appointment of a litigation guardian for the individual, including the issue of an out-of-province litigation guardian.

The court approved both settlements and the proposed variation of the trust, finding them to be in the best interests of the party under disability and consistent with the settlor's original intentions.

Antibe Therapeutics Inc. (Antibe) commenced CCAA proceedings seeking a stay extension, while Nuance Pharma Ltd. (Nuance), Antibe's largest creditor, sought termination of the CCAA and appointment of a receiver, along with a declaration of constructive trust over funds.

The court found Antibe's CCAA application to be a defensive tactic with no realistic restructuring plan.

Given the unique circumstances, including Antibe's core business (a drug) being far from commercialization and the arbitral finding of Antibe's deliberate misrepresentation, the court terminated the CCAA proceeding and appointed a receiver over Antibe's property.

The court declined to rule on Nuance's trust claim at this stage.

The moving party sought leave to appeal an order of Justice Barbara Conway dated September 16, 2023.

The Divisional Court dismissed the motion for leave to appeal.

Costs were fixed at $4,500 payable by the moving party to the respondent.

This appeal concerns the admissibility of fresh evidence in an application to set aside an arbitral tribunal's jurisdictional decision under the UNCITRAL Model Law.

The Court of Appeal for Ontario affirmed the Divisional Court's ruling that such applications are hearings de novo, allowing parties to introduce evidence not previously before the arbitral tribunal, and that the "competence-competence" principle does not limit the court's fact-finding ability in this context.

The Court dismissed the appeal, upholding the Divisional Court's decision to admit the fresh evidence.

The Court of Appeal for Ontario heard a motion to quash an appeal.

The underlying order, which was the subject of the appeal, concerned the validity of service on the appellant.

The Court determined that orders relating to the validity of service are interlocutory, and therefore, the Court of Appeal lacked jurisdiction to hear the appeal.

The motion to quash was allowed, and the appeal was quashed.

The Court noted that the appellant should not be prejudiced by the delay in bringing the matter before the Divisional Court, and counsel for the respondent agreed not to object to a timely extension of time for a motion for leave to appeal in the Divisional Court.

The plaintiff, Shanghai Lianyin Investment Co., Ltd. (SLIC), brought a motion for an interim preservation order under Rule 45.01(1) of the Rules of Civil Procedure concerning two Ontario properties registered in the name of the defendant Lichun Guo, alleging they were held in resulting trust for her husband, Charles Lu, against whom SLIC held a CAD$233 million arbitral award.

Concurrently, Ms. Guo brought a cross-motion for security for costs.

The court dismissed SLIC's preservation order motion, ruling that Rule 45.01 is not the appropriate mechanism for preventing asset dissipation before judgment where the plaintiff does not assert a legal right to the specific assets, but rather seeks to satisfy a general monetary judgment.

Such relief requires meeting the stricter test for a Mareva injunction or a certificate of pending litigation.

The court granted Ms. Guo's motion for security for costs, finding that SLIC, as an out-of-province corporation with insufficient Ontario assets, did not demonstrate a "good chance of success" on the merits of its complex resulting trust claim, particularly given the unsettled legal question in Ontario regarding a creditor's ability to enforce a judgment against property held by a spouse in resulting trust without an allegation of fraudulent conveyance.

The plaintiffs brought a motion to compel the production of financial records relating to mortgages held by the defendants in trust for the plaintiffs, alleging a fraudulent scheme to misappropriate funds.

The defendants argued that the documents should be produced in the ordinary course of litigation.

The court held that beneficiaries of a trust have a proprietary right to records relevant to an accounting for the trust property, separate from the ordinary rules of discovery, and ordered the defendants to produce the requested documents or confirm their non-existence.

The Joint Liquidators of Stanford International Bank Limited (SIB) appealed the dismissal of their negligence claim against The Toronto-Dominion Bank (TD Bank).

SIB was a vehicle for a massive Ponzi scheme.

The Liquidators claimed TD Bank was negligent in providing correspondent banking services by failing to detect and protect SIB from insider abuse.

The Court of Appeal upheld the trial judge's finding that TD Bank did not owe a novel duty of care to monitor SIB for internal fraud, as this fell outside the scope of TD Bank's undertaking as a correspondent bank.

The court also affirmed the trial judge's alternative finding that even if a duty existed, there was no breach of the standard of care, and that the trial judge's procedural rulings regarding witness recall were fair.

The appeal was dismissed.

This appeal addresses whether an Ontario court should recognize and enforce a "ricochet judgment" – a British Columbia judgment that itself recognized and enforced a foreign judgment from the Judicial Committee of the Privy Council.

The appellant, H.M.B. Holdings Limited, sought to enforce a Privy Council judgment (compensation for expropriated property in Antigua and Barbuda) in British Columbia, obtaining a default judgment.

After an unsuccessful attempt to register this BC judgment in Ontario under the Reciprocal Enforcement of Judgments Act, H.M.B. commenced a common law action in Ontario to recognize and enforce the BC judgment.

The motion judge dismissed the action, finding no real and substantial connection between British Columbia and the underlying Antiguan dispute.

The Court of Appeal upheld the dismissal, but on the principled basis that the common-law test for recognition and enforcement of foreign judgments does not extend to ricochet judgments, as such judgments are local in scope and enforcing them in another jurisdiction would improperly circumvent local laws, such as limitation periods.

The appellant sought to register in Ontario a default judgment obtained in British Columbia to enforce a Privy Council judgment awarding compensation for expropriation of its property by the respondent.

The application judge and majority of the Court of Appeal dismissed the application on the basis that the respondent was not carrying on business in British Columbia under s. 3(b) of Ontario's Reciprocal Enforcement of Judgments Act.

The Supreme Court unanimously dismissed the appeal, finding no error of law in the interpretation of "carrying on business" and no palpable and overriding error in the factual conclusion that the respondent lacked any actual presence in British Columbia.

Côté J. concurred but wrote separately to address the open question of whether recognition (derivative) judgments fall within the REJA's definition of "judgment", concluding that they do.

The Russian Federation appealed an interlocutory decision that denied its request to adduce fresh evidence on an application to set aside an arbitral tribunal's interim award on jurisdiction.

The Divisional Court allowed the appeal, holding that an application to challenge a tribunal's jurisdiction under Article 16 of the UNCITRAL Model Law is a hearing de novo, not a deferential review.

Consequently, the parties are entitled as of right to adduce evidence that was not before the arbitral tribunal.

The joint liquidators of Stanford International Bank (SIB) and a group of investors brought actions against TD Bank, SIB's primary U.S. dollar correspondent bank, for knowing assistance in breach of fiduciary duty and negligence.

The plaintiffs alleged that TD Bank should have detected and prevented the massive Ponzi scheme orchestrated by SIB's owner, Allen Stanford.

The Superior Court of Justice dismissed the actions, finding that TD Bank had no actual knowledge of the fraud and was not reckless or wilfully blind.

The court also held that TD Bank did not owe a novel duty of care to protect its customer from insider abuse, and even if it did, it met the standard of care of a reasonable banker during the relevant period.

The plaintiff sought summary judgment to recognize and enforce a British Columbia default judgment in Ontario.

The B.C. judgment had recognized a Privy Council judgment against the defendant.

The defendant argued that the B.C. judgment was a 'ricochet judgment' and that B.C. lacked a real and substantial connection for the purposes of extra-provincial enforcement.

The court agreed, finding that while B.C. legislation provided a presumption of jurisdiction for local enforcement, it did not satisfy the common law real and substantial connection test required for enforcement outside of B.C. The action was dismissed.

The moving party, The Russian Federation, brought a motion for leave to appeal the decision of Penny J. The Divisional Court granted the motion for leave to appeal, with costs fixed at $7,500 payable in the discretion of the panel deciding the appeal.

The parties were directed to schedule the delivery of appeal materials and a case management teleconference.

The applicant sought to set aside an arbitral tribunal's interim award on jurisdiction under Articles 16 and 34 of the UNCITRAL Model Law.

In support of its application, the applicant filed new expert evidence that was not before the arbitral tribunal.

A previous judge had ruled that the new evidence was admissible as of right.

The hearing judge reconsidered this interlocutory ruling and held that he had the authority to do so.

The court concluded that fresh evidence in an application to set aside an arbitral tribunal's award on jurisdiction under the Model Law may not be introduced as of right.

Instead, a party must obtain leave by satisfying the test for fresh evidence established in R. v. Palmer.

The applicant, The Russia Federation, brought a motion to disqualify the respondent's expert witness on Russian law, arguing bias and lack of qualifications.

The expert had previously provided evidence for related entities in similar claims against the applicant.

The court applied the White Burgess framework and found that the expert's history did not demonstrate a lack of independence, nor did his lack of Russian legal credentials or fluency in Russian negate his demonstrated expertise.

The motion to strike the expert's evidence was dismissed, and the respondent's cross-motion to admit the reports was allowed.

The applicants, engaged in combating government corruption in Malaysia, sought a Norwich Pharmacal order to compel financial institutions to produce confidential information about a Canadian real estate group.

The applicants suspected the group was funded by proceeds of foreign corruption and contemplated a private criminal prosecution for money laundering and receipt of proceeds of crime.

The court dismissed the application, holding that the applicants lacked reasonable grounds to believe an indictable offence had been committed, and that it would be inappropriate to use the court's inherent civil jurisdiction to bypass the careful balance struck by Parliament in the Criminal Code for criminal investigations and private prosecutions.

The plaintiffs brought a motion without notice for a Norwich Pharmacal order against several financial institutions and an accounting firm.

They sought financial information regarding a foreign official and related entities to determine whether to commence private criminal prosecutions for alleged money laundering.

The court adjourned the motion, holding that the targets of the investigation had a privacy interest in the records and must be given notice under the Rules of Civil Procedure, as there was no risk of evidence destruction that would justify proceeding without notice.