Mark A. Ross

Six consolidated actions arising from a bitter, multi-year dispute between two competing 'cash for gold' businesses in Toronto.

The feud escalated into allegations of a 'murder for hire' plot, resulting in criminal charges against an employee that were later withdrawn.

The employee sued for malicious prosecution and abuse of process.

The court found the hitman liable for malicious prosecution and both the hitman and the competitor liable for abuse of process, awarding the employee $221,775 in damages.

In the corporate actions, the court found the opposing business owner liable for nuisance and intentional interference with economic relations for using 'sandwichboarders' to harass the competitor's business, awarding $200,000.

The competitor was awarded $50,000 for defamation regarding statements made to a newspaper.

The opposing business owner's claims for defamation and misappropriation of personality were dismissed.

The moving parties brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000.

Following a successful motion for a Mareva injunction and Norwich order, the plaintiffs sought costs of $47,495.53 jointly and severally against the defendants.

The defendant Rosanna Boccia argued that costs against her should be in the cause, as she did not engage in the obstructionist tactics employed by her co-defendant son.

The court agreed that Rosanna played by the rules but noted she still lost the motion.

The court awarded total costs of $47,000, holding Rosanna jointly and severally liable for half ($23,500), while the co-defendants were held liable for the full amount.

The plaintiffs and the defendant Robert Langlois entered into a joint venture to operate a powder-coating business, ACS.

Mr. Langlois licensed his powder-coating know-how and expertise to ACS.

Before ACS generated any revenue, Mr. Langlois secretly formed a competing business, PCS, with the defendants Jeffrey Sugar and Gary Sugar.

Mr. Langlois diverted corporate opportunities, including a lucrative powder-coating contract, to PCS and later to VML.

The plaintiffs sued for breach of contract, breach of fiduciary duty, and knowing assistance.

The court found that Mr. Langlois breached the Licence Agreement and his fiduciary duties by misappropriating corporate opportunities.

The court also found that Jeffrey Sugar and Gary Sugar knowingly assisted in these breaches.

The court ordered disgorgement of profits and repayment of loans and expenses, holding the defendants jointly and severally liable.

The applicant tenant sought an injunction to prevent the respondent landlord from terminating its commercial lease and evicting it.

The landlord issued a notice of default claiming unpaid rent and taxes, but the court found the alleged arrears were entirely due to the landlord's own billing and clerical errors.

The landlord alternatively argued it could terminate the lease without default by compensating the tenant in damages, relying on contract law principles.

The court rejected this argument, holding that a commercial lease grants a possessory property right that cannot be unilaterally expropriated by the landlord.

The notices of default and termination were declared null and void, and the landlord was enjoined from terminating the lease.

This application concerned an oppression remedy under the Ontario Business Corporations Act, brought by a daughter (applicant) against her mother (respondent) and related corporations in a closely held family business.

The applicant alleged oppressive conduct by the respondent, specifically a debt conversion and share issue that diverted corporate revenues to the respondent and terminated the applicant's long-standing income stream.

The court applied the two-step test for oppression, finding that the applicant had a reasonable expectation of continued financial support and participation in the residual value of the corporation.

The court determined that the respondent's actions breached these reasonable expectations and constituted oppressive conduct.

Consequently, the debt conversion and share issue were set aside.

The court declined to remove the respondent as director but directed the parties to negotiate a fair resolution for ongoing payments based on their respective needs and available resources, with the option to return to court if an agreement could not be reached.

Following an 11-day trial where the plaintiffs were successful, the court determined the quantum and scale of costs.

The plaintiffs had made multiple offers to settle that were more favourable than the trial judgment.

Applying Rule 49.10(1) and Rule 57.01(1), the court awarded the plaintiffs costs on a substantial indemnity basis fixed at $724,850.49, noting the defendants' unreasonable positions during the litigation.

This appeal concerned the appropriate measure of damages for a vendor's breach of an agreement of purchase and sale for real property.

The appellant purchaser sought to recover the significant capital appreciation realized by the breaching vendor two and a half years after the breach, when the vendor resold the properties for $56 million more than the original contract price.

The Court of Appeal upheld the motion judge's decision, affirming the general principle that damages for breach of a real estate contract are assessed at the date of breach, unless the innocent party can demonstrate a later date is fair due to an inability to re-enter the market and mitigate.

The court found the appellant, a long-term investor, was not a speculator and failed to prove its loss or justify a departure from the date of breach.

The appeal on damages and costs was dismissed, as was the cross-appeal on costs thrown away.

A case conference was held to manage multiple related actions.

The court noted that Commercial List matters were being traversed to the regular Civil list.

Directions were given for the filing of outstanding pleadings, setting aside defaults by consent, and establishing a mutually convenient discovery schedule with a target completion date of December 31, 2022.

The court also provided instructions for scheduling anticipated motions, including a potential Mareva injunction and a motion to join the trials.

A case conference was held regarding five related actions, three of which were on the Commercial List and two were regular civil matters.

Counsel agreed that the actions should be case managed together for efficiency.

The judge agreed to act as the case management judge for all five cases, which will require transferring the Commercial List actions to regular civil actions.

During an ongoing civil trial, the court held a voir dire to determine the admissibility of an affidavit sworn by a non-party in a separate, sealed family proceeding.

The affidavit had come into the possession of one of the defendants.

The objecting parties argued the affidavit was protected by solicitor-client privilege and was obtained unlawfully.

The court held that the sworn affidavit filed in court was not a privileged communication and that the sealing order did not reinstate privilege.

The court ruled the affidavit admissible for impeachment purposes as a prior inconsistent statement.

The appellants restructured family trusts, incorporating "Child Corporations" and subscribing for shares without actual payment, leading to a significant tax reassessment by the Canada Revenue Agency (CRA) for taxable benefits.

They sought a declaration from the Superior Court that the shares were invalidly issued under the Ontario Business Corporations Act (OBCA) and an order for rectification of share registers, aiming to negate the tax assessment.

The Superior Court declined jurisdiction, deferring to the Tax Court of Canada, and also indicated it would not have granted the requested relief.

The Court of Appeal upheld the Superior Court's discretionary decision to decline jurisdiction, finding no reviewable error.

The Court emphasized that the primary dispute was between the appellants and the CRA, falling within the Tax Court's specialized expertise, and that the corporate parties did not require a binding order from the Superior Court to resolve internal corporate issues.

The appellant, Forest Meadows Developments Inc., appealed an order dismissing its application for a declaration that the respondent, Narges Shahrasebi, breached an Agreement for Purchase and Sale (APS).

The core issue was whether the respondent had represented that she would not be able to close on the extended closing date of October 29, 2019, which the appellant argued constituted anticipatory breach.

The Court of Appeal upheld the application judge's finding of fact that no such representation was made, and therefore, there was no anticipatory breach or reasonable reliance by the appellant.

The appeal was dismissed.

The applicant pharmacy owner sought a declaration and injunction to enforce a non-competition clause against a former pharmacist employee who resigned and began working at a nearby pharmacy.

The court dismissed the application, finding that the non-competition clause was unenforceable because its description of prohibited activities was both ambiguous and overly broad, extending beyond what was reasonably necessary to protect the employer's proprietary interests.

The appellant appealed a trial judgment that rejected her claim of a partnership for a residential property and found her not credible.

The trial judge had also awarded punitive damages against the appellant in favour of one respondent.

The Court of Appeal dismissed the appeal regarding the partnership, upholding the trial judge's factual findings and credibility assessments, which were entitled to deference.

However, the Court of Appeal set aside the punitive damages award, reiterating that such damages require an independent actionable wrong, which was absent in this case.

The moving party brought a motion for leave to appeal the order of Kimmel J. dated March 20, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the fixed amount of $4,891.66.

This appeal addresses whether a trustee in bankruptcy can initiate an equalization claim under the Family Law Act (FLA).

The Court of Appeal held that while an unexercised equalization entitlement constitutes "property" under the Bankruptcy and Insolvency Act (BIA) and vests in the trustee, the "personal as between the spouses" provision in s. 7(2) of the FLA prevents anyone other than a spouse from initiating such a claim.

The court found no operational conflict between the FLA and BIA, thus dismissing the trustee's appeal to initiate the claim.

The plaintiff purchaser brought a motion for judgment against the defendant vendors for breach of an agreement of purchase and sale for seven apartment buildings.

The defendants failed to discharge mortgages on title prior to closing, breaching the agreement.

The plaintiff sought damages for sunk costs and over $56 million for lost capital appreciation, based on the defendants' subsequent sale of the properties 2.5 years later.

The court awarded the sunk costs but dismissed the claim for lost profits, holding that damages must be assessed at the closing date and that the plaintiff, an international real estate investor, had mitigated its losses by deploying its funds elsewhere.

The moving parties brought motions for leave to appeal the orders of the motion judge dated June 29, 2020, and August 17, 2020.

The Divisional Court dismissed the motions for leave to appeal.

Costs were awarded to the responding parties in the total amount of $10,000, payable jointly and severally by the moving parties.

The successful defendants sought their costs of the trial.

The court found that the plaintiff's conduct throughout the litigation was egregious and reprehensible, including forging a signature and improperly registering notices on title to delay the sale of a property.

As a result of this malicious and unreasonable conduct, the court awarded the defendants their costs on a substantial indemnity basis.