Matthew John Diskin

The plaintiffs, creators of the cult film 'The Room', sued the defendants for copyright infringement, breach of moral rights, misappropriation of personality, passing off, and intrusion upon seclusion over the defendants' unauthorized documentary 'Room Full of Spoons'.

The defendants counterclaimed for damages resulting from an ex parte injunction previously obtained by the plaintiffs that delayed the documentary's release.

The court dismissed all of the plaintiffs' claims, finding that the documentary's use of clips from 'The Room' constituted fair dealing for the purposes of criticism, review, and news reporting.

The court granted the defendants' counterclaim, awarding US$550,000 in compensatory damages for lost revenue due to the injunction, and CAD$200,000 in punitive damages for the plaintiffs' oppressive and bad faith litigation conduct.

The plaintiffs brought a motion under Rule 36 to cross-examine the 89-year-old president of the defendant companies out-of-court before trial, citing his progressive memory decline.

The defendants opposed, arguing the court lacked jurisdiction under Rule 36.01(2) because the plaintiffs were not the party introducing the witness's evidence.

The court granted the motion, finding that the witness's evidence in chief had already been captured by affidavit, and securing his cross-examination before trial was necessary to preserve his evidence and ensure fairness.

The defendants brought a motion for leave to amend their statement of defence and counterclaim shortly before the scheduled trial.

The plaintiffs opposed the motion, arguing that the lengthy delay created a presumption of prejudice that could not be compensated by costs or an adjournment.

The court agreed, finding that the defendants failed to provide an adequate explanation for the delay and failed to rebut the presumption of prejudice.

The court also noted that actual prejudice would result, given the need for further discoveries and the declining memory of the defendants' key witness.

The motion was dismissed, save for an undisputed amendment to reduce the damages claim.

The appellant foreign corporations appealed a Master's order dismissing their motion to stay or dismiss the action for lack of territorial jurisdiction.

The Master found a real and substantial connection to Ontario based on a good arguable case that an oral contract for a 5% ownership interest was made and breached in Ontario.

The Divisional Court found no palpable and overriding error in the Master's characterization of the dispute or her conclusion, and dismissed the appeal.

The defendants, two American corporations, brought a motion under Rule 21.01(3)(a) to dismiss an oppression claim for lack of subject matter jurisdiction, arguing they were not governed by the Ontario Business Corporations Act (OBCA).

The plaintiffs alleged an oral agreement for a 5% ownership interest in the defendant companies, asserting they were beneficial owners and the defendants were affiliates of Ontario corporations controlled from Ontario.

The court found that the OBCA's definition of "affiliate" could include foreign corporations controlled by the same person as an Ontario corporation, and that the Ontario Superior Court had jurisdiction over the oppression claim, as well as other claims for breach of contract and tracing.

The motion to dismiss was denied.

The defendant brought a motion for an order requiring the plaintiff, a corporation, to post security for costs pursuant to Rule 56.01(1)(d) of the Rules of Civil Procedure, alleging insufficient assets in Ontario to cover potential costs.

The court reviewed the two-part test for security for costs, which places the initial onus on the defendant to demonstrate a good reason to believe the plaintiff has insufficient assets.

The court found that the defendant failed to meet this initial onus, as their evidence was based on speculation rather than concrete indicia of financial difficulty.

The plaintiff, an operating business with ongoing investments and a subordinated major liability, provided sufficient evidence of its financial stability and ability to meet a costs order.

The motion was dismissed.

The defendants, Medi-Promotions Inc. and PrintPad (2009) Inc., moved to stay the action for want of territorial and subject-matter jurisdiction and to strike the claim as an abuse of process.

Defendant Marktech Services Inc. also moved to strike portions of the Statement of Claim.

The court dismissed the motions to stay and to strike for abuse of process, finding a real and substantial connection to Ontario and that Ontario was the convenient forum.

However, the court granted the motion to strike specific portions of the Statement of Claim, including the tracing claim against Marktech and the fraudulent activities and bad faith allegations against all moving defendants, due to insufficient material facts and lack of specificity, but granted the plaintiffs leave to amend.

The plaintiff, Henry Lotin, brought two defamation actions against his brother-in-law Tomas Gregor and sister-in-law Andrea Gregor, seeking summary judgment, non-compensatory general damages, and an injunction.

The defendants also sought summary judgment.

The court dismissed the action against Tomas Gregor, finding that the alleged defamatory statements were not proven.

However, the court granted summary judgment in favour of Lotin against Andrea Gregor for two defamatory statements: one accusing Lotin of stealing from Agnes in a telephone conversation with Gabor, and another in a text message to Peter stating Lotin "ransacked" Agnes' condominium and "took things." Lotin was awarded $2,000 in general damages against Andrea Gregor.

The request for a permanent injunction was denied, as the court was not satisfied there was a likelihood of continued defamation.

Following the dismissal of the plaintiff's summary judgment motion, the successful defendant sought partial indemnity costs of approximately $255,000.

The plaintiff argued the costs should be reserved to the trial judge as the motion's efforts would reduce trial preparation.

The court rejected reserving all costs, noting the motion should not have been brought, but recognized that some work would be useful for trial.

The court issued a hybrid costs order: $100,000 payable forthwith, $77,500 payable in any event of the cause, and $77,500 payable in the cause.

The appellants appealed a decision granting an oppression application and ordering the production of financial documents to the minority shareholder.

The application judge found that the majority shareholder's refusal to provide financial disclosure and call a shareholders meeting constituted oppressive conduct.

The Divisional Court dismissed the appeal, finding no procedural unfairness in the application judge's interchangeable reference to the minority shareholder company and its principal.

The Court upheld the finding that the minority shareholder had a reasonable expectation of ongoing access to financial disclosure, which was violated by the appellants' conduct.

Leave to appeal the costs order was also denied.

The plaintiff brought a motion for summary judgment against the defendant for over $25 million USD in a complex action involving allegations of breach of contract and conspiracy.

The court dismissed the motion, finding a surfeit of genuine issues requiring a trial, including highly contested facts regarding pre-contract representations, alleged collusion, and the interpretation of multiple contracts created in a convoluted factual nexus.

The court concluded it would not be in the interests of justice to decide the action summarily.

The defendants brought a motion under Rule 21.01(1) to strike portions of the plaintiff's statement of claim, specifically targeting claims against defendant Tyulenyev, the claim for passing off, and the claim for unlawful interference with economic relations.

The court applied the "plain and obvious" test, finding that sufficient material facts were pleaded to support the claims against Tyulenyev, including personal liability for copyright infringement despite not being a directing mind of the corporation.

Regarding the passing off claim, the court acknowledged its novelty in recognizing the "style and content" of reports as a "get-up" but held that novelty alone is not a basis to strike a claim if material facts are pleaded and there is a reasonable prospect of success.

For the unlawful interference claim, the court found that an intention to injure could be inferred from the pleaded facts and that the "public" relying on the plaintiff's reports was sufficiently identified as a third party.

Consequently, the motion to strike was dismissed in its entirety.

The plaintiff brought a motion for a further and better affidavit of documents, specifically seeking unredacted copies of the corporate defendant's 2015 and 2016 financial statements.

The defendants claimed the redacted portions were protected by litigation privilege and common interest privilege, arguing they were notes to shareholders describing the ongoing litigation.

The Master reviewed the documents under Rule 30.06(d) and found the defendants failed to establish the evidentiary foundation that the redacted portions were created for the dominant purpose of litigation.

The defendants were ordered to produce the unredacted financial statements and pay costs of $3,000.

The plaintiff employer brought a motion for partial summary judgment seeking to enforce a non-competition clause against a former software developer who resigned to work for a competitor.

The defendants brought cross-motions seeking a declaration that the clause was void.

The court found the matter appropriate for partial summary judgment.

The court held that the non-competition clause was overly broad in its scope of prohibited activities, geographic scope, and temporal scope, and was ambiguous.

The clause was declared unreasonable, unenforceable, and void ab initio.

The plaintiffs, creators of the cult film 'The Room', sought to extend an interlocutory injunction restraining the release of the defendants' documentary 'Room Full of Spoons'.

The defendants moved to dissolve the injunction, arguing material non-disclosure on the initial ex parte motion and failure to meet the test for an injunction.

The court dissolved the injunction, finding the plaintiffs failed to disclose material facts, including that the documentary's use of film excerpts likely constituted fair dealing.

The court also held that the plaintiffs failed to establish irreparable harm and that the balance of convenience strongly favoured the defendants' right to freedom of expression.

The appellant law firm appealed the dismissal of its application under s. 23 of the Solicitors Act to enforce written retainer agreements for unpaid legal fees.

The application judge had ruled that the firm could only enforce its retainer via an assessment.

The Divisional Court dismissed the appeal but clarified the law, holding that simple or usual written fee agreements do not fall within the scope of s. 16(1) of the Act.

Consequently, they are not subject to the requirement for assessment under s. 17 or the prohibition against commencing an action under s. 23.

Lawyers may commence an action to recover fees under such agreements, though clients retain the right to request an assessment.

The plaintiff brought a summary judgment motion to recover alleged debt from the defendants based on a debt settlement agreement.

The defendants denied the contract or alleged breach by the plaintiff for failing to leave the ESL industry, and sought to amend their counterclaim to include this breach.

The court granted the defendants' motion to amend their counterclaim, finding it was not prejudicial and disclosed a reasonable cause of action.

The plaintiff's summary judgment motion was dismissed, as the issues in the main action and the amended counterclaim were inextricably intertwined, creating a genuine issue requiring a trial and raising the risk of inconsistent findings and inefficient use of judicial resources if heard separately.

The appellants appealed an order dismissing their action as an abuse of process.

The motion judge found that the appellants could have raised their allegation of being specifically targeted in prior judicial review proceedings regarding the FIT program.

The Court of Appeal upheld the decision, confirming that the abuse of process doctrine applies to issues that could have been determined in earlier administrative processes, and found no error in the motion judge's refusal to exercise her discretion to allow the action to proceed.

The plaintiffs, comprising 118 limited partnerships, brought an action against the Ontario Power Authority and Ontario for misfeasance in public office and unjust enrichment, seeking $450 million in damages related to changes in the Feed-In Tariff (FIT) program.

The defendants moved to strike the claim.

The Superior Court of Justice granted the motion, finding the action was an abuse of process because it attempted to relitigate the lawfulness of the FIT program changes, which had already been upheld by the Divisional Court in a prior judicial review application.

The court also held that the statement of claim failed to disclose a reasonable cause of action for either misfeasance in public office or unjust enrichment.

The plaintiffs appealed an order of a Master dismissing their action for delay at a status hearing.

The plaintiffs argued the Master failed to apply the correct test and failed to undertake a contextual assessment of the delay, which they attributed to corporate bankruptcies, the death of a plaintiff, and a threatened motion for security for costs.

The Divisional Court dismissed the appeal, finding the Master correctly applied the conjunctive test from Faris v. Eftimovski and made no palpable and overriding errors in concluding the plaintiffs failed to provide an acceptable explanation for the delay.