Marc A. Munro

This decision resolves a dispute over the distribution of net proceeds from the sale of the Boundary Lake Property, an asset of Maple Pond Farm Limited.

The plaintiff, Gordon Vellenga, sought equal division of the proceeds between himself and Peter Boersma, the two shareholders.

The defendants, including Weijs Investment Corp., sought priority reimbursement for various claims before any distribution.

The court found most of the defendants’ claims barred by res judicata, issue estoppel, or limitations, except for property taxes paid on the property.

The court ordered equal division of the proceeds, with a credit to Weijs Investment for property taxes paid.

This costs decision follows a lengthy guardianship and estate litigation between Edi Ferritto and her brother, Alfredo Ferritto, regarding their mother Lucia Ferritto.

The court reviews the procedural history, the parties' conduct, and the applicable legal principles for awarding costs.

Edi Ferritto, as the successful party, is awarded substantial indemnity costs for the trial and partial indemnity costs for the applications and motions, with certain reductions.

The decision details the calculation of fees and disbursements, and the rationale for the scale of costs awarded.

This is an appeal by the defendants from an Associate Justice's order that dismissed their request to strike certain paragraphs from the Statement of Claim.

The impugned paragraphs alleged bad faith contractual performance by the defendants, specifically referencing an alleged campaign to damage the plaintiff, including encouraging a false accusation of sexual assault, following the plaintiff's departure from their accounting firm.

The defendants also sought to strike paragraphs related to "departure negotiations" on the basis of settlement privilege.

The court dismissed the appeal, affirming that the allegations of bad faith contractual performance were viable under Bhasin v. Hrynew and that the correspondence regarding departure negotiations was not presumptively privileged without evidence of intent to settle.

This case involves competing applications concerning the estate of Ignazia Rizzo, where her three children were named as co-executors and beneficiaries.

The primary dispute arose from the will's provision for Salvatore Rizzo to purchase the family home at fair market value, leading to a deadlock over the sale price and the allocation of estate taxes and expenses.

Angela Farruggia, one of the siblings, insisted on receiving her share net of taxes, contrary to the will and a prior agreement, and linked her renunciation as trustee to this demand.

Angela brought an application seeking the sale of the house and occupation rent from Salvatore, while Salvatore and Eduardo Rizzo applied for Angela's removal as estate trustee.

The court dismissed Angela's application, finding she lacked standing as a beneficiary to compel sale or claim occupation rent, as her interest was in the residue, not a direct property interest.

The court granted Salvatore and Eduardo's application, removing Angela as estate trustee due to her unreasonable conduct, changing positions, and conflict of interest in leveraging her trustee position for a greater share of the estate.

Salvatore and Eduardo were authorized to administer the estate in accordance with the will.

The plaintiff, Angelo Ricci, sought leave to amend his statement of claim to reduce damages from $500,000 to $200,000 to proceed under Simplified Procedure, citing financial inability to afford a long trial.

The defendant, Credential Securities Inc., opposed, arguing lack of changed circumstances and prejudice to its defence.

The court granted leave, holding that an amendment reducing damages to the Simplified Procedure threshold mandates transfer to that procedure, and that the defendant failed to prove non-compensable prejudice.

The court awarded specific costs related to discovery time to the defendant, and costs of the motion to the plaintiff.

The appellants sought to appeal the dismissal of their motion to stay the action and, for one appellant, the trial judgment finding conspiracy, joint and several liability, disgorgement of profits, and punitive damages.

The trial judge had found that a former supervisory employee breached his fiduciary duty by securing construction work for his own companies, accruing over $10 million in profits, and that his common-law wife was deeply involved.

The Court of Appeal dismissed the appeals, finding no basis for appellate intervention.

The court held that the appeal of the stay motion dismissal was not properly before it due to a failure to appeal the original order within the prescribed deadline.

The court also found no error in the trial judge's factual findings regarding the conspiracy and disgorgement.

The respondent moved to convert an application into an action, arguing material facts were in dispute regarding a trust agreement for a property.

The applicant opposed, asserting no material facts were in dispute concerning the trust's existence and seeking its enforcement.

The court dismissed the motion to convert, finding sufficient clarity on the trust issue from the record.

The court declared the trust agreement valid and enforceable, ordering 70% of the net proceeds from the property sale to be released to the applicant.

A trial of an issue was ordered to determine any reimbursements owed to the respondent for property expenses incurred from purchase to sale, pursuant to the trust agreement.

The plaintiffs, purchasers of a dental clinic, sought an interlocutory injunction to enforce non-competition and non-licensing obligations against the defendants, the former clinic owner and his corporations.

The plaintiffs alleged breaches of a 15-kilometre non-competition clause and a five-year restriction on using the "Smile Stylist" brand name within the Greater Toronto Area (GTA), stemming from the defendants opening a new clinic within the restricted zone and misusing the former clinic's website for marketing.

The court applied the RJR-MacDonald test, finding a strong prima facie case for breach of the non-competition and branding covenants, irreparable harm to the plaintiffs, and that the balance of convenience favored granting these injunctions.

However, the court denied the request for control over the "thesmilestylist.ca" domain and related accounts, as the licensing term had expired and the plaintiffs had rebranded, negating irreparable harm for that specific relief.

The defendants brought a motion to strike various paragraphs from the plaintiff's statement of claim, alleging they were prejudicial, scandalous, frivolous, vexatious, or an abuse of process.

The plaintiff's action arose from his acrimonious departure from an accounting partnership, seeking an accounting, declarations of bad faith and oppressive conduct, and damages.

The motion sought to strike paragraphs related to a request for trial together with a civil assault action, allegations of reprisal and false sexual assault claims, a complaint filed with CPA Ontario, and the nature of departure negotiations.

The court dismissed the motion to strike paragraphs concerning the request for trial together and the reprisal/assault allegations, finding they could support a claim for breach of the duty of good faith.

However, the court granted the motion in part regarding the CPA Ontario complaint, striking those references due to inadmissibility under the CPA Ontario Act and public policy protecting regulatory complaints.

The motion to strike paragraphs on departure negotiations was also dismissed, as the defendants failed to prove settlement privilege and the allegations could support a breach of contract claim.

Due to mixed success, each party was ordered to bear their own costs.

The plaintiff sought repayment of approximately $300,000 in alleged loans from the defendant.

The defendant moved for summary judgment, arguing the claim was statute-barred by the Limitations Act, 2002, and alternatively sought leave to amend his statement of defence to withdraw certain admissions.

The court found that significant factual disputes, including the nature of communications between the parties (complicated by the plaintiff's deafness and English comprehension), created a genuine issue requiring a trial regarding when the claim was discovered and if a clear and unequivocal demand for repayment was made.

Consequently, the motion for summary judgment was dismissed.

The motion for leave to amend the statement of defence was granted, as no non-compensable prejudice would result.

This appeal concerned the correct approach to defamation and civil conspiracy pleadings in the context of a motion to strike.

The Divisional Court had struck out the defendant's counterclaim, finding it lacked particularity.

The Court of Appeal allowed the appeal, holding that the Divisional Court misapplied the modern, flexible approach to pleadings and failed to read the pleadings generously.

The Court of Appeal reinstated the motion judge's decision, which had dismissed the motion to strike, emphasizing the high bar for striking pleadings and the deference owed to motion judges.

The defendants brought a motion seeking joinder of three separate actions initiated by the plaintiff, 2209509 Ontario Inc. operating as Norfolk Fairway Estates, concerning claims for "extras" on new home constructions.

They also sought an order for security for costs.

The plaintiff opposed both requests.

The court granted the joinder, finding common questions of law and fact across the actions and that joinder would promote the convenient administration of justice.

The court also granted the order for security for costs, determining that the plaintiff, an amalgamated corporation, had not sufficiently demonstrated it possessed exigible assets in Ontario to cover potential costs.

An employer sued a former supervisory employee, his spouse, and related corporations and trusts arising from a long-running undisclosed self-dealing scheme in which the employee caused the employer to retain companies he beneficially owned.

The court found the employee owed fiduciary duties because he had unilateral authority to hire contractors and approve invoices, and held he breached fiduciary duty, breach of contract, breach of confidence, and deceit by using confidential bid and budget information to direct work to his own entities without disclosure or consent.

The spouse was found liable in unlawful means conspiracy through deceitful conduct and by acting as a sham officer and director using a different name to conceal involvement.

Claims for phantom billing and conversion were dismissed for inadequate pleading and disclosure despite the court's view that the evidentiary record would otherwise have supported them.

The court ordered disgorgement of $10,264,237, punitive damages of $1,000,000, and granted accounting, tracing, and constructive trust relief.

This appeal concerned a dispute between cousins over their aunt's will, specifically regarding the Testatrix's testamentary capacity when she executed a 2007 will.

The appellant argued the application judge erred in finding capacity without sufficient evidence and challenged the costs award.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding error in the assessment of evidence regarding testamentary capacity.

The court affirmed the application judge's discretion to discount expert evidence based on a biased factual summary and found ample evidence to support the Testatrix's capacity.

The appeal on costs was also dismissed, as the appellant failed to demonstrate an error in principle or that the award was plainly wrong, noting that the absence of dockets is not an automatic bar to cost recovery.

The moving parties sought leave to appeal from an unreported order of Koehnen J. dated March 6, 2021.

The Divisional Court dismissed the motion for leave to appeal in writing, awarding costs of $2,500 to the responding parties.

The appellants appealed an interlocutory order dismissing their motion to strike the respondent's counterclaim for defamation and civil conspiracy.

The respondent, a former condominium board member, alleged he was the victim of a smear campaign orchestrated by the appellants that led to his removal from the board.

The Divisional Court allowed the appeal and struck the counterclaim without leave to amend.

The Court held that the respondent failed to plead a prima facie case of defamation against any specific individual, which is a prerequisite to relying on the modern, relaxed approach to defamation pleadings.

The civil conspiracy claim was also struck as it was entirely duplicative of the defective defamation claim.

The appellant appealed a judgment dismissing his anti-SLAPP motion and granting summary judgment of $50,000 in favour of the respondent physician for defamation.

The appellant had posted derogatory comments about the respondent on a doctor rating website after the respondent testified as an expert in a medical malpractice trial involving the death of the appellant's brother.

The Court of Appeal upheld the motions judge's findings that the anti-SLAPP motion failed and that the respondent had proven publication, authorship, and malice for the defamation claim.

The appeal was dismissed with costs.

The moving parties brought a motion for leave to appeal an order dated July 14, 2020.

The Divisional Court granted leave to appeal and fixed the costs of the leave motion at $3,500, with entitlement to those costs reserved to the panel hearing the appeal.

The respondent and the appellant were equal shareholders and directors of a corporation that operated a dairy farm.

The corporation sold its milk quota, and the appellant director used the net proceeds to purchase a property registered in the name of a company owned by his wife, characterizing the transaction as a loan.

The respondent sought an oppression remedy, and the trial judge declared the property was held in constructive trust for the corporation due to the appellant's breach of fiduciary duty.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the unauthorized transfer of corporate funds constituted oppressive conduct and that a constructive trust was the appropriate remedy.

The appellant sold his company to the respondents and entered into an employment agreement.

After the company was assigned into bankruptcy, the appellant sued for breach of contract, oppression, and wrongful dismissal.

The trial judge awarded damages for oppression but dismissed the claims for the share purchase price, wrongful dismissal, and punitive damages.

On appeal, the Court of Appeal found the trial judge erred in interpreting the share purchase agreement, holding that the plain wording required a minimum payment of $750,000 for the shares after five years regardless of profitability.

The appeal was allowed in part to award the $750,000, but dismissed regarding wrongful dismissal and punitive damages.