Marc A. Munro

The appellants, minority shareholders in a family holding company controlled by their father, appealed a decision dismissing their claim for breach of fiduciary duty and ordering them to sell their shares as a remedy for oppression.

The Divisional Court allowed the appeal, finding the application judge erred in fact and law by failing to recognize the father's self-dealing and breach of fiduciary duty when he purchased shares through his own company and later sold them to the family holding company for a substantial profit.

The court also found the forced sale of the appellants' shares was manifestly unjust and failed to consider their reasonable expectations.

The court ordered the father and his company to disgorge the profits to the holding company, removed the father as a director of the appellants' holding company, and awarded costs to the appellants.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding that the individual applicant sexually harassed the respondent by exposing himself to her on two occasions.

The Divisional Court dismissed the application, finding that the Tribunal's factual findings were rational and grounded in evidence, its consideration of male/female power dynamics was appropriate, its conclusion that the respondent was an employee was consistent with jurisprudence, and its damages award was reasonable and entitled to deference.

The appellant municipality appealed the dismissal of charges against the respondents for unlawfully operating a public storage facility on four properties zoned Highway Commercial C3.

The trial justice found the by-law unclear regarding public storage and dismissed the charges.

On appeal, the court held that the by-law contained an overall prohibition on land uses not specifically permitted, and public storage was not enumerated as a permitted use in the C3 zone.

The court found the use was unlawful both at the time of purchase in 1988 and at present, therefore the defence of legal non-conforming use failed.

The appeal was allowed and convictions were registered.

The appellant appealed the dismissal of her wrongful dismissal and human rights claims following her failure to return to work after maternity leave.

She argued the trial judge erred in finding that an 8:30 a.m. start time was a fundamental term of her employment contract, and that the employer's insistence on this time constituted constructive dismissal and family status discrimination.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the start time was an existing contractual term and that the appellant failed to establish a prima facie case of discrimination regarding her child care needs.

Following a successful summary judgment motion for defamation and the dismissal of the defendant's anti-SLAPP motion, the plaintiff sought costs.

The plaintiff had made multiple offers to settle for significantly less than the $50,000 damages awarded at trial.

The court considered the offers to settle, the principles of proportionality, and the statutory provisions regarding costs for anti-SLAPP motions.

The court fixed costs payable by the defendant to the plaintiff at $50,000 all-inclusive.

The appellants appealed the motion judge's order striking their statement of claim and amended statement of claim against the Law Society of Upper Canada as disclosing no reasonable cause of action.

The appellants alleged that the Law Society's practice of requiring lawyers facing negligence claims to provide client files to the professional indemnity insurer violated confidentiality, privacy, and solicitor-client privilege.

The motion judge struck the pleadings without leave to amend, finding that section 9 of the Law Society Act provides statutory immunity for actions taken in good faith in the performance of statutory duties.

The appellants did not plead bad faith, which is necessary to overcome the statutory immunity.

The appeal was dismissed.

The plaintiff, Dr. Dick Eric Zoutman, brought a motion for summary judgment in a defamation action against James Graham, who had posted defamatory comments about Dr. Zoutman on online physician rating websites.

Graham brought a cross-motion for anti-SLAPP relief.

The court dismissed Graham's anti-SLAPP motion, finding it was brought too late and that Graham failed to acknowledge authorship of most impugned statements.

The court granted summary judgment to Dr. Zoutman, finding the postings defamatory, published, and made with malice.

Graham's defence of fair comment failed due to false factual premises and malice.

Dr. Zoutman was awarded $25,000 in general damages and $25,000 in aggravated damages, totaling $50,000, and a permanent injunction against Graham.

This endorsement addresses the costs arising from a prior judgment (2019 ONSC 19) where the plaintiff, Harry Pohl, was successful.

The court awarded costs on a partial indemnity basis, considering the complexity of the eleven-day trial, the proportionality of the award to the judgment amount of $225,297.20 (plus interest), and the conduct of the parties.

Specific deductions were made for costs related to a dismissed party (Karen Palisca) and certain disbursements, including excessive witness fees and litigation software deemed office overhead.

Disbursements for IT services to recover company data were allowed as necessary for the proceeding.

The appellant obtained a default judgment in South Carolina in August 2014 against the respondent, a resident of Ontario.

The appellant commenced an enforcement action in Ontario in December 2017, more than three years later, claiming it did not know the respondent had assets in Ontario until October 2017.

The motion judge set aside the Mareva injunction granted ex parte, finding the enforcement action was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld this decision, holding that the two-year limitation period began to run 30 days after the foreign judgment was entered, when the time to appeal expired.

The court rejected arguments that appeals by co-defendants postponed the limitation period and that the appellant lacked knowledge of the respondent's Ontario assets.

The plaintiff, Harry Pohl, sued the defendants for breach of contract, wrongful dismissal, and oppression under the OBCA, following the sale of his company, Die-Metric Tool Inc. (DMT), to corporations controlled by Walter Palisca.

The defendants counterclaimed for breach of contract.

The court dismissed Pohl's claims for breach of contract (regarding the $1.5M sale price) and wrongful dismissal, and also dismissed the defendants' counterclaim.

However, the court found that Walter Palisca, as director and controlling mind, breached his statutory duty to DMT and the common law duty of honest performance by improperly diverting $225,297.20 of DMT's funds (from a bankruptcy settlement) to affiliated companies (PTL and PS) and for personal legal fees, to the detriment of DMT and Pohl as a personal guarantor.

The court also found oppression under s. 248(2) of the OBCA.

Judgment was awarded to Pohl against Walter Palisca, Palcam Technologies Ltd., and Palcam Solutions Inc. (and/or 1401763 Ontario Inc.) jointly and severally for $225,297.20.

The case involved two consolidated applications concerning a shared sewer pipe between two adjacent properties, 52 James Street (owned by Margot J. Olivieri) and 54 James Street (owned by the Estate of Julie Valvasori, represented by Joan Henry).

Olivieri sought a declaration of a permanent prescriptive easement for the sewer line running from 52 James through 54 James to the city sewer, and damages for the Estate's interference with it.

The Estate sought a declaration that the pipe was trespassing and an order for its removal, requiring 52 James to establish its own sewer connection.

The court found that a prescriptive easement existed in favour of 52 James.

However, it limited the ancillary rights associated with the easement, denying Olivieri broad rights to alter the pipe or unrestricted entry.

The court awarded Olivieri $3,467.92 in damages for the Estate's unlawful capping of the pipe, offset by $480.09 owed by Olivieri for shared sewer maintenance.

The Estate's application to remove the pipe was dismissed.

Following the dismissal of the plaintiff's action after an eight-day trial, the court considered written costs submissions.

The defendant sought enhanced costs due to the plaintiff's conduct, including reducing her claim at trial, frustrating document preparation, failing to respond to undertakings, and rejecting settlement offers.

The court fixed costs on a partial indemnity basis, awarding the defendant $54,108.36, inclusive of legal fees, disbursements, and HST.

The court declined to award enhanced costs, finding the plaintiff's conduct, while impacting costs, did not meet the "reprehensible" threshold required for such an award, as established in *Davies v. Clarington (Municipality)*.

The court emphasized the principle of reasonableness in fixing costs, as per *Boucher v. Public Accountants Council (Ontario)*, and considered the complexity of the legal issues involved.

The plaintiff sued her former employer for constructive dismissal and human rights violations after returning from maternity leave.

The employer required her to start work at 8:30 a.m., whereas she previously had flexibility to arrive later due to childcare.

The court found that the employer had not changed the essential terms of her employment, as she was always expected to be available in the early mornings when required.

The court also dismissed the human rights claim, finding the plaintiff failed to establish family status discrimination and failed to cooperate in the accommodation process by withholding information about her childcare situation.

The defendant, an executive of the Canadian Nuclear Safety Commission, brought a motion for partial summary judgment to dismiss a defamation action against him personally.

He argued he was protected by statutory immunity under s. 18(1) of the Nuclear Safety and Control Act and that he acted as an employee without personal liability.

The court dismissed the motion, finding that the issue of whether the defendant acted in good faith or with malice could not be determined on a summary judgment motion and required a full trial.

The respondent stored food processing equipment owned by the appellant and claimed a storage lien under the Repair and Storage Liens Act.

The respondent retained the equipment in breach of his obligation to sell it after receiving a letter from the appellant dated May 30, 2012.

The trial judge ordered the respondent to pay damages of $129,500 USD but reduced this by crediting $27,900 for storage fees at $900 per month for 31 months.

On appeal, the appellant challenged whether credit should have been given and the amount thereof.

The Court of Appeal dismissed the appeal, upholding the trial judge's decision to grant the credit and the calculation of the storage fees.

This costs endorsement followed a successful motion by the plaintiffs against the GCMC Defendants to establish a discovery plan.

The plaintiffs sought partial indemnity costs, while the GCMC Defendants argued for no costs due to alleged non-compliance with a previous court order.

The court found the plaintiffs acted reasonably and were largely successful in their motion, noting the GCMC Defendants had used the discovery plan issue as a tactic to seek dismissal of the action, contrary to the purpose of Rule 29.1.

Applying general costs principles, the court awarded the plaintiffs fixed costs.

The plaintiffs brought a motion to establish a discovery plan after the parties failed to agree on one.

The court noted the lack of meaningful communication between counsel and emphasized that discovery planning should be a collaborative, not adversarial, process.

The court adopted the plaintiffs' draft discovery plan with some amendments, finding it adequately addressed the requirements of Rule 29.1.03(3).

The appellants, whose assets were managed by a court-appointed receiver, were reassessed by the CRA for unpaid taxes arising from shareholder loans.

They sought to sue the receiver for gross negligence in failing to engage in tax planning.

The accounting firm also sought leave to crossclaim against the receiver.

The Court of Appeal upheld the motions judge's decision dismissing the actions, finding that leave was required to sue the receiver and that the appellants failed to establish a prima facie case of gross negligence or wilful misconduct.

The appellant appealed a trial judgment dismissing his claim that he was hired by the respondent municipality for a fixed three-year term as CAO.

The Court of Appeal upheld the trial judge's finding that the appellant was hired only as an 'Acting CAO/Clerk' on a temporary basis, noting that the documentary evidence, the municipality's past practice, and the appellant's own inconsistent positions supported this conclusion.

The appeal was dismissed with costs awarded to the respondent municipality.

Schonfeld Inc., acting as a court-appointed Monitor and Receiver, sought to dismiss an action commenced against it by the monitored parties for alleged failure to engage in tax planning.

The monitored parties commenced the action without obtaining leave of the court and subsequently brought a motion for leave nunc pro tunc.

The court held that leave was required under the terms of the Monitor and Receiver Orders.

The court refused to grant leave nunc pro tunc, finding that the proposed claim lacked foundation because the Receiver's mandate did not include tax planning, and the pleadings failed to establish gross negligence or wilful misconduct as required to overcome the Receiver's discharge and release.

The action and a related crossclaim were dismissed.