Markus Koehnen

The applicant, a 20% shareholder and former director of the respondent corporation, sought production of financial statements and an order for a shareholders' meeting.

The matter was directed to a case conference under a new Toronto Civil List policy for short applications.

The respondents sought a last-minute adjournment citing a vague medical note, which the court denied due to a history of delay.

Applying the principle of proportionality and the need for a culture shift in civil justice, the court held it was appropriate to grant the substantive relief requested directly at the case conference rather than forcing the applicant to wait 14 months for a formal hearing.

The defendants brought a motion to compel the plaintiff estate to produce unredacted solicitor files of the deceased, William Waters, arguing that the "wills exception" to solicitor-client privilege should extend to determine the deceased's intent regarding inter vivos transfers.

The estate claimed the transfers were impressed with a resulting trust, while the defendants asserted they were gifts.

The court found that the previous order allowed for disputes over privilege and that applying res judicata to informal case management directions would inhibit the process.

The court extended the "wills exception" from Geffen v. Goodman Estate to this case, finding ambiguity in the deceased's will regarding the nature of the transfers.

It ordered the production of all information shedding light on whether the transfers were gifts, including information on the deceased's capacity and susceptibility to undue influence, subject to a protective order to prevent a fishing expedition for claims against the solicitor.

The applicant security company sought a declaration that it was an additional insured under a builder's risk insurance policy issued by the respondent to a construction company.

The applicant provided security services at a construction site that was vandalized and set on fire, leading to an underlying negligence action against the applicant.

The applicant argued it was a 'supplier' under the policy.

The court dismissed the application, finding that the plain and ordinary meaning of the policy clearly excluded suppliers who perform no construction work, thereby excluding the applicant.

The plaintiff, Infor Financial Inc., sought costs of $511,762.22 following a four-day trial where it obtained a judgment more favorable than its settlement offer.

The defendant, Centrilogic, Inc., argued the amount was excessive and disproportionate.

The court found the plaintiff was entitled to the full amount, applying partial indemnity costs up to the date of the settlement offer and substantial indemnity costs thereafter, in accordance with Rule 49.

The court rejected arguments of disproportionality and excessive time spent, noting the defendant's "hard-nosed approach" and intransigence throughout the litigation.

The defendants, Stantec Consulting Ltd., Gordon A. Johnston, and Paul J.D. Alpern, brought a motion for summary judgment to dismiss the plaintiff G Group's claim.

The motion sought dismissal on the grounds that the claim was barred by the Limitations Act and that no genuine issue existed against the individual defendants.

The court granted summary judgment in favour of the individual defendants, finding no viable claim against them.

However, the court dismissed the motion for summary judgment against Stantec Consulting Ltd., determining that the limitations issue was complex, involved conflicting evidence, and raised genuine issues requiring a trial to resolve, particularly regarding the nature of the agreement and the discoverability of the claim.

The applicant sought a declaration of entitlement to a deposit paid by the respondent under a contract to purchase a new build home, and a direction for a trial on further damages.

The respondent refused to close, alleging misrepresentations regarding square footage and finish quality.

The court found no valid misrepresentations, enforcing the entire agreement clause against the respondent despite claims of limited English and alleged verbal assurances.

The court declared the applicant entitled to retain the $502,500 deposit, finding a 15% deposit not unconscionable.

However, the court dismissed the applicant's request for a trial on further damages, noting it was not sought in the initial application and would lead to inefficient bifurcation of proceedings.

The plaintiff brought an action for oppression against the personal and corporate defendants, alleging unauthorized withdrawal of corporate funds.

The court found the personal defendant liable for oppression, determining that funds were improperly withdrawn and rejecting defences related to a lease and the limitations period.

Damages were awarded to the plaintiff and another shareholder to ensure proportionate return of capital, but punitive damages were denied.

This costs endorsement followed a four-week jury trial where the plaintiffs received a net award of $191,228.65.

The defendant's pre-trial offer of $250,000 to settle all claims was found to attract Rule 49.10 cost consequences, despite being a lump sum and inseverable offer to multiple plaintiffs, due to the application of s. 62(1) of the Family Law Act.

The court adjusted the defendant's claimed costs downward, particularly for internal counsel's estimated time, to ensure indemnity rather than a windfall.

The plaintiffs were awarded partial indemnity costs up to the offer date, and the defendant from that date forward.

A net payment of $21,923.17 in costs was ordered from the defendant to the plaintiffs.

Prejudgment interest on non-pecuniary damages was ordered to run until the end of the trial.

The appellant, MLD, appealed a community treatment order approved by the Consent and Capacity Board.

The appeal raised two main grounds: whether MLD received prompt rights advice as required by the Mental Health Act, and whether the Board erred in finding MLD unable to appreciate the foreseeable consequences of a lack of treatment.

The court dismissed the appeal, finding that the 15-day delay in rights advice was not unreasonable given diligent efforts by the rights advisor and lack of prejudice.

On the capacity issue, the court upheld the Board's majority finding that MLD lacked the ability to appreciate the foreseeable consequences of not adhering to treatment, emphasizing that the Board's weighing of conflicting evidence was not a palpable and overriding error.

The plaintiff mortgage brokerage brought a motion for summary judgment against the corporate defendant and its CEO for unpaid brokerage fees.

The CEO had fraudulently misrepresented to the plaintiff that the real estate agents on the sale of the property had agreed to reduce their commission by 50%, inducing the plaintiff to discharge its mortgage and defer its fees.

The court found the CEO personally liable for fraudulent misrepresentation and ordered both defendants to pay the full $350,000 fee plus substantial indemnity costs.

The applicant insurer sought a declaration that it had no duty to defend or indemnify the respondent insured in a class action arising from a cyber attack and data breach.

The insurer relied on a Data Exclusion Endorsement in the commercial liability policy.

The court found that while the endorsement excluded coverage for personal injury claims arising from the distribution of data, it did not exclude coverage for bodily injury claims.

Because the underlying class action included allegations of bodily injury resulting from the insured's negligence in safeguarding data, the insurer owed a duty to defend and indemnify.

The application was dismissed.

This application concerned a dispute between Live Nation and Aviva regarding which of two insurance policies (Aviva's or Live Nation's Starr policy) should primarily cover Live Nation's defence costs in a related claim.

Live Nation, as an additional insured under Aviva's policy (issued to its security contractor NWP), argued Aviva's policy was primary.

Aviva contended its policy was excess and sought equitable contribution from Live Nation's policy.

The court found Aviva's policy to be primary, rejecting the equitable contribution argument based on policy language and commercial intent, and ordered Aviva to pay 100% of defence costs, subject to a future re-apportionment application.

This was a summary judgment motion brought by Andrew Cole and Andrew Cole Corporation, defendants to a counterclaim, seeking to dismiss the counterclaim advanced by Demilec Inc. Demilec alleged that Mr. Cole, as Executive Director of the Canadian Urethane Foam Contractors Association Inc. (CUFCA), acted out of self-interest by developing a competitive product, improperly certifying a competitor's product, and sending misleading emails.

The court found that Demilec failed to provide sufficient evidence to establish a genuine issue requiring a trial.

The allegations against Mr. Cole involved conduct undertaken in his capacity as a CUFCA employee, and no personal liability was established.

The motion was granted, and the counterclaim against Andrew Cole and Andrew Cole Corporation was dismissed.

The Retirement Homes Regulatory Authority (RHRA) brought an application seeking an order for the respondents to cease illegally operating a retirement home and to wind up their business.

The core issue was whether the respondents' facility met the definition of a retirement home under the Retirement Homes Act, specifically concerning the "administration of a drug or other substance." The court found that the respondents did administer drugs based on the ordinary meaning of the term, their own definition, and a purposive interpretation of the Act, which aims to protect vulnerable individuals.

The court also found other care services were provided.

Given the respondents' history of non-compliance and deliberate attempts to avoid regulation, the court granted the RHRA's request to shut down the premises, ordering it to be vacated within six months, and awarded costs to the applicant.

The plaintiff, a generic drug manufacturer, brought an action for damages against the defendants under s. 8 of the Patented Medicines (Notice of Compliance) Regulations for delayed market entry of its generic drug.

The plaintiff argued it was entitled to damages because the defendants' prohibition proceeding was dismissed for mootness after the underlying patent was invalidated in a separate proceeding.

The court dismissed the claim, finding that the plaintiff's allegations in the prohibition proceeding had failed on the merits, and s. 8 does not provide redress where the innovator prevailed on the merits but the patent was later invalidated by a third party.

The court also found that, even if liability existed, the plaintiff would not have entered the market any sooner in the hypothetical world due to its risk-averse nature.

The plaintiffs brought a class action against mutual fund managers for allowing certain investors to engage in frequent short-term trading (market timing/time zone arbitrage), which allegedly diluted the returns of long-term unitholders.

The court found that the defendants owed a duty of care to the funds and breached the standard of care by failing to prevent, and actively facilitating, frequent short-term trading contrary to their prospectuses.

However, the court dismissed the claim for breach of fiduciary duty, finding no bad faith or dishonesty.

The matter was directed to proceed to a damages trial.

The defendants brought a motion to strike the plaintiffs' statement of claim for disclosing no cause of action, relying on absolute privilege for litigation conduct and the absence of a duty of care owed by opposing counsel.

The plaintiffs, self-represented, cross-moved to stay the defendants' motion and for default judgment, arguing the defendants were improperly noted in default.

The court dismissed the plaintiffs' cross-motion, finding that a motion to strike precedes the need for a statement of defence.

The court granted the defendants' motion, striking the statement of claim without leave to amend, as the claims against the lawyer and law firm were barred by absolute privilege, and the claim against the lawyer's spouse lacked any legal basis.

The court also ordered that the plaintiffs be precluded from bringing any further proceedings against the defendants without leave of the court, citing the abuse of process and the need to protect judicial resources.

The applicant sought a Norwich order against two lawyers to obtain transactional information regarding real estate purchases and transfers involving a judgment debtor, in order to enforce a $369,072.61 judgment.

The respondents opposed the motion, arguing the applicant did not meet the test for a Norwich order and that the information was protected by solicitor-client privilege.

The court granted the Norwich order, finding that the applicant met the test and that the requested transactional information, such as the source of funds and true ownership of the properties, was not presumptively protected by solicitor-client privilege.

The court ordered the respondents to produce the non-privileged information and established a process for reviewing any specific claims of privilege.

The moving defendants sought to dismiss or stay the action because the plaintiff failed to immediately disclose a settlement agreement reached with a co-defendant.

The court found that the settlement did not fundamentally change the litigation landscape, as it was a simple release without costs and did not involve the settling defendant switching sides or cooperating with the plaintiff.

Furthermore, the moving defendants had not asserted cross-claims against the settling defendant before the limitation period expired.

The motion was dismissed.

The plaintiff appealed an Associate Justice's order discharging two certificates of pending litigation due to material nondisclosure on an ex parte motion.

The court found no error in the Associate Justice's decision and dismissed the appeal.

However, the plaintiff also moved for a Mareva injunction over the proceeds of sale of a property owned by the defendant daughter, arguing she failed to transfer a condominium to him as required by a separation agreement.

The court granted the Mareva injunction, finding a strong prima facie case, risk of dissipation of assets, and irreparable harm, and relieved the plaintiff from providing an undertaking in damages due to his limited financial means.