Matthew Joseph Latella

A state-owned corporation moved to set aside or vary a Mareva injunction freezing shares and dividends of a Canadian mining company in aid of enforcing a foreign arbitral award against a sovereign state.

The moving party argued the injunction should be set aside for lack of full and frank disclosure and because subsequent appellate decisions undermined the factual basis relied upon to establish that the state beneficially owned the frozen shares.

The court held the applicant had exercised reasonable diligence and did not breach the duty of full and frank disclosure.

However, later appellate decisions overturning related rulings significantly weakened the evidentiary basis supporting the injunction.

The court ordered the Mareva injunction set aside at a future date, varied it immediately to reduce the amount of frozen assets, and permitted the award creditor time to bring a new motion on notice.

The appellant appealed an order extending a Mareva injunction that froze its shares in a Toronto-based company.

The injunction was originally granted ex parte to secure an international arbitration award against the Kyrgyz Republic.

On appeal, fresh evidence was admitted showing the underlying arbitral award had been set aside by a Russian court.

The Divisional Court allowed the appeal and set aside the injunction on the basis of the fresh evidence.

The Court also found that the respondent had breached its duty of full and frank disclosure on the original ex parte motion by failing to disclose material facts regarding a foreign court's ruling on the arbitral tribunal's lack of jurisdiction.

The defendants moved to dismiss a multi-plaintiff action brought by Saab dealers in five provinces, arguing Ontario lacked jurisdiction or was not the convenient forum.

The court held that the Canadian distributor carried on business in Ontario and throughout the provinces where it established dealers, and that the claims arose from the same series of transactions and common issues concerning the failure of a national dealer network.

Applying the Van Breda connecting factors, the court found jurisdiction simpliciter in Ontario for all claims, upheld joinder of all plaintiffs and defendants, and concluded Ontario was the most convenient Canadian forum.

The motion was dismissed and the plaintiffs were awarded substantial indemnity costs because the motion was found patently meritless and pursued in an abusive, wasteful manner.

The respondent, Kyrgyzaltyn JSC, sought leave to appeal an order continuing an ex parte Mareva injunction obtained by Stans Energy Corp. The moving party argued that Stans Energy Corp. failed to disclose material information, specifically an English translation of a foreign court decision questioning the jurisdiction of the arbitration tribunal that issued the underlying award.

The Divisional Court granted leave to appeal the continuation of the injunction, finding conflicting decisions on the test for materiality of non-disclosure on ex parte motions and determining that the issue was of sufficient importance to warrant appellate review.

Leave to appeal the specific terms requiring a third party to hold dividends in trust was refused.

The moving parties (defendants) sought a stay of a motion judge's order dismissing their jurisdictional challenge as an abuse of process, pending their appeal of that order.

They also sought an extension of time to perfect the appeal.

The Court of Appeal applied the RJR-MacDonald test and granted the stay, finding that the appeal raised serious issues regarding jurisdiction and joinder, that there was some risk of irreparable harm due to the uncertain law on attornment, and that the balance of convenience favoured the moving parties.

The extension of time was also granted on consent.

Following a contempt motion between the plaintiff and defendants, the court addressed costs.

Although the defendants successfully defended the contempt motion, the court found it more likely than not that one defendant removed certain logbooks in contravention of court orders, which militated against awarding costs to the defendants.

The plaintiff also failed on the motion and therefore was not entitled to costs.

However, a non-party that participated in the proceedings was awarded substantial indemnity costs due to its limited but necessary involvement.

The court ordered the plaintiff to pay the non-party $25,000 plus HST and disbursements.

The plaintiff brought a motion seeking a finding of contempt against the defendants and a non-party corporation for allegedly failing to comply with prior court orders requiring the delivery of aircraft engine logbooks.

The moving party argued the materials had been removed or withheld in breach of orders compelling their production.

The court held that contempt must be proven beyond a reasonable doubt and found the evidence against the non-party was entirely circumstantial with no plausible motive established.

While the evidence suggested it was possible the individual defendant removed the logbooks, the court concluded the record did not establish the allegation beyond a reasonable doubt due to alternative explanations and lack of direct evidence.

The contempt motion was dismissed.

Costs decision following two motions in an employment action alleging constructive dismissal and entitlement to a bonus.

The defendant successfully moved to set aside a noting in default and successfully resisted the plaintiff’s summary judgment motion concerning whether a bonus should be paid entirely in cash or partially through restricted share units.

The court found that plaintiff’s counsel improperly refused to consent to setting aside the noting in default, unnecessarily increasing litigation costs.

Substantial indemnity costs of $9,500 were awarded for the motion to set aside the noting in default.

Partial indemnity costs of $20,000 were awarded for the summary judgment motion.

The plaintiff brought a motion for an interim order to recover an aircraft engine owned by the Government of Taiwan, which had been sent for overhaul.

The defendants, who acted as middlemen, had the engine shipped to Canada and detained it, claiming a repairer's lien and demanding security.

The court found that the plaintiff was entitled to possession, the defendants had unlawfully detained the engine, and the defendants were not entitled to a lien as they did not perform any repairs.

The court ordered the immediate return of the engine without requiring the plaintiff to post security.

The plaintiff, a former executive who resigned and claimed constructive dismissal, brought a motion for summary judgment for his unpaid 2011 bonus.

The parties agreed on the bonus amount, and the bank paid two-thirds in cash prior to the motion.

The issue was whether the bank could pay the remaining one-third in restricted share units (RSUs) as per its past practice and the governing plan, or if the plaintiff was entitled to cash.

The court held that the plan did not prohibit the bank from granting RSUs to a former employee, and the plaintiff was not entitled to demand the remaining balance in cash.

The appellant bank issued an irrevocable and transferable letter of credit.

The letter of credit was transferred to the respondent, who subsequently presented documents for payment.

The appellant refused to pay, citing discrepancies in the documents and a lack of notice regarding the transfer.

The motions judge granted summary judgment in favour of the respondent on liability and ordered the appellant to pay costs, including a Sanderson order for the co-defendant's costs.

The Court of Appeal dismissed the appeal, finding that notice of the transfer was not required under the terms of the credit or the UCP 500, and that the documentary discrepancies were minor and immaterial.

The Court also upheld the costs awards, including the Sanderson order.

The appellant tenant appealed a decision regarding its obligation to pay rent under a commercial lease.

The lease contained a latent ambiguity regarding the Completion Date and Rental Commencement Date.

The tenant argued it was not required to pay rent because the landlord had not completed all buildings in the shopping centre as stipulated in the lease.

The Court of Appeal dismissed the appeal, finding that it was not commercially reasonable for the tenant to take possession, operate its business, and use the landlord's services without paying rent.

By taking possession and opening for business, the tenant effectively waived strict compliance with the landlord's obligation to complete all buildings as a condition precedent to paying rent.

The appellants obtained loans from the respondent financial institutions to purchase mutual funds based on the advice of their financial advisors.

When the investments failed to perform, the appellants faced margin calls and suffered losses.

They sued the financial institutions, alleging negligence and breach of fiduciary duty for failing to advise them of the risks associated with the loans.

The motion judge granted summary judgment dismissing the claims against the financial institutions.

The Court of Appeal upheld the decision, finding that the relationship between a bank and its customer is generally that of debtor and creditor, and there were no special circumstances or exceptional relationships to give rise to a duty of care or a fiduciary duty to advise the borrowers.

The appellants, Ontario residents, sold a Florida lot to the respondents.

A dispute arose, and the respondents obtained a default judgment in Florida for US$260,000 after the appellants failed to properly defend the action.

The respondents sought to enforce the judgment in Ontario, which had grown to approximately C$800,000.

The Supreme Court of Canada held that the 'real and substantial connection' test applies to the recognition and enforcement of foreign judgments.

The Court found that the Florida court properly took jurisdiction and that the appellants failed to establish the defences of fraud, natural justice, or public policy.

The appeal was dismissed, and the foreign judgment was enforced.