Marc Kestenberg

During a lengthy matrimonial trial, the applicant alleged that the respondent's former counsel, SimpsonWigle LLP, breached a Mareva injunction by receiving payments from frozen offshore companies.

The parties agreed to defer the contempt hearing against the law firm until after the trial judgment.

At the commencement of the contempt hearing, the law firm brought a motion to dismiss, arguing the court lacked jurisdiction because the Mareva order was no longer live and operative.

The court dismissed the motion, finding no requirement in law that an order must be live and operative when a contempt motion is brought or a finding is made, particularly where the purpose is to address a deliberate breach rather than to coerce compliance.

In the context of a family law dispute, the applicant brought a contempt motion against the respondent's former lawyers for allegedly receiving funds in breach of a Mareva injunction.

Both the applicant and the alleged contemnors brought motions for documentary production.

The court held that because contempt is a quasi-criminal proceeding, the alleged contemnors are not subject to the automatic disclosure obligations of the Rules of Civil Procedure and have a right against self-incrimination.

The court dismissed the applicant's request for an affidavit of documents but granted a preservation order against the lawyers.

The court also ordered the applicant to produce relevant communications to the alleged contemnors to allow them to make full answer and defence.

The defendant appealed a master's order dismissing its motion to amend its statement of defence and counterclaim to add the plaintiff's sole director and his other corporations as parties.

The master had dismissed the motion due to a lack of evidence supporting the amendments and a finding that the pleadings did not disclose a tenable cause of action.

The Divisional Court allowed the appeal, holding that evidence is not required on a motion to add a party absent prejudice or abuse of process.

Furthermore, the proposed pleadings, which alleged the director used his corporations interchangeably to shield himself from liability, disclosed a tenable claim for alter ego liability.

The defendant brought a motion for an order requiring the corporate plaintiff to post security for costs.

The corporate plaintiff resisted, claiming impecuniosity and that its claim was not devoid of merit.

The court found that the corporate plaintiff failed to meet the high evidentiary burden to establish impecuniosity, as it did not provide complete financial disclosure.

Furthermore, the court determined that the corporate plaintiff did not have a good chance of success on the merits of its claims regarding uncompetitive pricing and alleged threats by the defendant.

The motion was granted, and the corporate plaintiff was ordered to post $40,000 in security for costs.

The applicant corporation sought court approval of a plan of arrangement under s. 182 of the Ontario Business Corporations Act involving the acquisition of its shares by another corporation.

Applying the framework in BCE Inc. v. 1976 Debentureholders, the court considered whether statutory procedures were followed, whether the application was brought in good faith, and whether the arrangement was fair and reasonable.

The court concluded that the arrangement had a valid business purpose, had been approved overwhelmingly by shareholders, and provided a significant premium to shareholders.

The court declined to rely on a fairness opinion contained in the management proxy circular because it constituted opinion evidence that failed to meet the admissibility requirements under the Rules of Civil Procedure, as it did not disclose the analytical basis for the opinion.

The arrangement was nevertheless approved on the basis of other admissible evidence.

Following dismissal of a discovery motion seeking answers to refused questions on examinations related to a motion for particulars, the court addressed the issue of costs.

The successful defendants sought partial indemnity costs exceeding $13,000, while the plaintiff argued for a significantly reduced amount.

Applying the discretionary framework under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality and fairness.

Considering the extensive materials, length of the hearing, and the importance of the issues, the court found the defendants largely entitled to their claimed costs but applied a modest reduction for unspecified time responding to undertakings.

Costs were fixed at $12,000 inclusive of HST and disbursements.

The defendants brought motions for summary judgment seeking dismissal of an investment loss claim on the basis that it was commenced outside the two‑year limitation period under the Limitations Act, 2002.

The remaining plaintiffs alleged losses arising from an offshore hedge fund investment and argued that the limitation period should begin only after they received legal advice.

The court held that the plaintiffs had actual knowledge of the material facts required under s. 5(1)(a) when they learned their investment was lost and expressed their intention to sue.

The court rejected the argument that a plaintiff’s lack of financial sophistication delays discoverability until legal advice is obtained.

The claim was discovered no later than July 31, 2007 and the September 2009 statement of claim was therefore statute‑barred.

The applicant requested the re-activation of a human rights application that had been deferred on consent due to a concurrent civil action.

The applicant argued the civil action was taking too long and had become protracted by a third-party action.

The Tribunal denied the request, finding that the civil action was ongoing, there was substantial overlap in the claims, and the circumstances did not warrant re-activating an application that would require adjudicating the exact issues currently before the court.

The plaintiff brought a refusals motion seeking answers to numerous questions refused on examinations conducted in connection with a pending motion for particulars in a professional negligence and breach of contract action against former lawyers.

The plaintiff argued that the defendants’ affidavit asserting lack of knowledge regarding certain particulars waived solicitor-client privilege over the defendants’ files and related information.

The court held that any waiver of privilege was limited to the knowledge addressed in the affidavit at the time it was sworn and did not extend to the entirety of counsel’s files.

The requested questions and document production exceeded the scope of the limited waiver and intruded upon solicitor-client privilege.

The court dismissed the refusals motion and confirmed the propriety of the defendants’ redactions and document production.

The defendants, a law firm and one of its lawyers, brought a motion for summary judgment to dismiss the plaintiffs' action for intentional infliction of mental suffering, negligence, and breach of contract.

The action arose from the defendants' prior representation of the plaintiffs in two litigation matters.

The court granted the motion and dismissed the action, finding that although there were genuine issues of material fact regarding negligence and breach of contract, the plaintiffs failed to produce any evidence of damages.

Without evidence of damages, the claim had no chance of success, making a trial unnecessary.

The plaintiff by counterclaim brought a motion to amend pleadings to add an investment subsidiary as a defendant to the counterclaim after the limitation period had allegedly expired.

The court considered s. 21 of the Limitations Act, 2002 and the doctrine of misnomer.

It found that the counterclaimant had always intended to pursue claims against both the banking and investment arms of the financial institution and that the proposed defendant knew it was the intended defendant.

The amendment therefore constituted a correctable misnomer rather than the addition of a new party after the limitation period.

The motion to add the party was granted, subject to further particulars being provided for certain defamation allegations.

The appellant appealed the dismissal of his claim, which was found to be commenced outside the two-year limitation period under the Limitations Act, 2002.

He argued the motions judge erred by not finding the limitation period was tolled due to fraudulent concealment by the respondents.

The Court of Appeal dismissed the appeal, agreeing with the motions judge that there was no basis in the evidence for the fraudulent concealment claim, as the lack of disclosure was immaterial and the appellant was a party to the telephone call he alleged was concealed.

The respondents brought a motion to stay an oppression application commenced by a significant noteholder under a corporate debt indenture.

They argued that a “no action” clause in the indenture barred the proceeding unless procedural preconditions were satisfied, including notice to the trustee and trustee enforcement.

The court held that although no‑action clauses are often interpreted broadly, their scope depends on the wording of the indenture and the trustee’s contractual powers.

Because the trustee’s enforcement authority under the indenture was limited to pursuing payment defaults, it did not extend to bringing oppression proceedings.

The applicant’s oppression claim was therefore not captured by the clause and the motion to stay was dismissed.

Appeal from a Master’s order dismissing a motion to consolidate or have five related estate, trust, negligence, and third-party proceedings heard together under Rule 6.01 of the Rules of Civil Procedure.

The appellants argued the Master misapplied Rule 6, lacked jurisdiction findings, and failed to grant ancillary relief including lifting a stay.

The court held the Master properly exercised her discretion, correctly considered the balance of convenience, and reasonably concluded that consolidating the proceedings would unfairly burden non-family parties with minimal benefit.

The court further held the Master correctly determined that certain requested relief, including effectively converting an application to an action and transferring estate matters, fell outside her jurisdiction.

The appeal was dismissed with costs.

Following a prior decision granting summary judgment and dismissing the plaintiff’s action as statute‑barred under the Limitations Act, the court determined the appropriate costs award.

The successful defendants sought approximately $75,000 on a substantial indemnity basis, while the plaintiff argued that $30,000 on a partial indemnity basis was reasonable.

The court held that substantial indemnity was not justified because the plaintiff had not engaged in improper, vexatious, or unnecessary conduct and the procedural steps taken were pursuant to court orders.

Applying the principles in Boucher v. Public Accountants Council of Ontario and the factors under Rule 57.01(1), the court fixed costs at $35,000 on a partial indemnity basis.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action for a trading loss caused by a botched share transfer, arguing it was statute-barred.

The plaintiff argued the claim was not discovered until 2010 when new information was disclosed.

The court found the plaintiff knew enough material facts by April 2007 to commence a legal proceeding.

Even accounting for a nine-month tolling period during an Ombudsman investigation, the action commenced in November 2011 was well beyond the two-year limitation period.

The motion for summary judgment was granted and the action dismissed.

Following a motion concerning whether a statement of claim should be amended to replace John Doe defendants with identified individuals, the court addressed the issue of costs.

The moving party sought partial indemnity costs of over $64,000 after achieving partial success in adding several individuals as defendants.

The responding parties argued that costs should be reduced because success was divided and because significant work occurred before the individuals formally opposed the motion.

The court rejected arguments that costs should be apportioned based on the number of individuals added and accepted that earlier work was intertwined with the amendment issue.

However, the court reduced the requested amount to account for delay and awarded partial indemnity costs.

The appellant appealed from a summary judgment dismissing his action based on a finding that an oral settlement had been reached prior to the commencement of the action.

The appellant argued that because the parties had not agreed on the form of release, no binding settlement was reached.

The Court of Appeal dismissed the appeal, holding that absent a contractual stipulation to the contrary, a settlement agreement implies a promise to furnish a release.

The plaintiff brought a motion to amend its Statement of Claim to substitute five named individuals for 'John Doe' defendants.

The action involved allegations that the defendants improperly accessed and used the plaintiff's confidential bond trading information.

The court applied the two-part test for misnomer, focusing on whether the 'litigating finger' pointed at the proposed defendants such that they would have known they were the intended parties.

The court granted the motion for four of the individuals, finding they would have recognized they were implicated by the allegations of accessing or destroying information, but denied it for one individual whose role was not clearly implicated by the pleadings.

Following a successful summary judgment motion dismissing the plaintiff’s claim, the defendants sought substantial indemnity costs exceeding $58,000.

The plaintiff argued the defendants achieved only mixed success because one of their legal arguments failed and sought costs on that issue.

The court held that the defendants achieved complete success because the action was dismissed in its entirety and that unsuccessful arguments do not constitute divided success where they were reasonably advanced.

While the court declined to award substantial indemnity costs, it granted the defendants their full partial indemnity costs for the motion.

Costs of $39,910.36 were ordered payable within 30 days.