Matthew Christopher MacKenzie Morden

The plaintiff brought a motion arising from refusals during examinations for discovery in a commercial dispute alleging that the defendants appropriated the plaintiff’s property and profits.

The court addressed several undertakings and refusals from the examinations of individual defendants and ordered that certain refused questions be answered.

It further ordered the corporate defendant to produce financial statements from 2010 onward, finding them relevant to the plaintiff’s disgorgement claim.

The defendants had agreed to answer most refusals but maintained opposition to the production request.

The court ordered production and awarded fixed costs for the refusal.

Dominant tenement holders sought removal of a wall constructed by the servient tenement holders that encroached into a 1916 right of way used as a laneway for ingress and egress.

The court found that although the wall was a permanent structure within the easement, it did not substantially interfere with the use of the right of way because the narrowest obstruction occurred on adjacent municipal property outside the easement.

Evidence showed ordinary vehicles could still pass and no dominant tenement holder had been impeded.

The court also rejected arguments that encroachment created a new easement through adverse possession or that the dominant owners had abandoned part of the easement.

The application was dismissed.

The plaintiff condominium corporation sought leave to discontinue its action against a former employee defendant without costs, or alternatively with modest costs, following settlement of related litigation arising from a large fraud scheme.

The responding defendant sought costs exceeding $50,000.

The court applied Rule 23.05 of the Rules of Civil Procedure and the 'justified action test' governing costs on discontinuance.

While the plaintiff had a bona fide basis to commence the action because the defendant’s name appeared on loan documents, the defendant incurred some legal expenses in defending the claim.

The court rejected the majority of the claimed costs due to questionable docketing practices and excessive billing, and awarded partial indemnity costs of $5,000 as a condition of discontinuance.

The appellants, Piro and Montaldi, appealed a summary judgment finding them liable for knowingly assisting an Enbridge employee, Marinaccio, in breaching his fiduciary duty through a fraudulent invoicing scheme.

Over six years, Enbridge paid over $6.5 million for fake invoices submitted by entities controlled by the appellants, who then shared the proceeds with Marinaccio.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that Marinaccio owed a fiduciary duty, the appellants knowingly assisted in his dishonest conduct, and they were liable for bribery and unjust enrichment.

The court also upheld the calculation of damages and the award of compound interest.

In a complex Commercial List case management proceeding involving multiple condominium corporations, lenders, and other parties arising from alleged fraud related to loans arranged for condominium corporations, the court addressed whether a previously scheduled separate hearing of a threshold issue should proceed.

The threshold issue concerned whether certain loans were enforceable against the condominium corporations.

Several parties withdrew their earlier consent to bifurcate the proceedings under Rule 6.1.01 of the Rules of Civil Procedure.

The court held that, absent unanimous consent, it lacked jurisdiction to compel a separate hearing of the threshold issue and therefore cancelled the proposed hearing.

The court instead directed that the actions proceed expeditiously to a consolidated trial with a structured discovery process and encouraged mediation.

Following competing applications under s. 134 of the Condominium Act, 1998 regarding the validity of a requisition seeking removal of condominium board members, the court had previously declared the requisition invalid, granted injunctive relief restraining meetings and dissemination of related allegations, and dismissed the owners’ application.

The condominium corporation sought substantial indemnity costs of $41,000.

The court held the applications were properly brought under s. 134 and that mandatory mediation and arbitration under s. 132 did not apply.

Although the owners had made false and misleading representations, the conduct was not sufficiently reprehensible to justify substantial indemnity costs.

Costs were awarded on a partial indemnity basis and fixed at $18,000 as a fair and reasonable amount.

The applicant sought enforcement of an alleged settlement agreement arising from a commercial dispute between advertising companies.

The respondent argued that no binding settlement existed because minutes of settlement were never executed and it had only agreed to certain terms of the proposal.

The court held that a binding settlement arises where parties agree on essential terms and demonstrate mutual intention to create legal relations, even if final documentation has not been signed.

The exchange of communications between counsel constituted a clear offer and acceptance of settlement terms.

The application was granted and the respondent was ordered to execute the agreed Minutes of Settlement and Release.

A condominium corporation sought declarations and injunctive relief after unit owners circulated a requisition calling for a special meeting to remove three board members.

The court found that the requisition and accompanying letter contained numerous false and misleading statements regarding financial matters, reserve fund expenditures, and the legality of security system upgrades.

Applying principles analogous to corporate shareholder meetings, the court held that a requisition must not mislead owners and must allow them to form a reasoned judgment about whether a meeting should occur.

Because the requisition was based on misleading information intended to induce signatures, it was declared invalid.

The court granted permanent and interim injunctions restraining further dissemination of the statements and temporarily prohibiting the owners from canvassing or soliciting regarding condominium elections or meetings.