Maureen Doherty

The defendant FundEX brought a motion for default judgment on its crossclaim against the co-defendants (the Reeves defendants) to recover indemnity for a $2.29 million settlement paid to the plaintiffs.

The plaintiffs' action alleged that Reeves, a FundEX employee, defrauded them of their investments.

FundEX settled the main action and noted the Reeves defendants in default on the crossclaim.

The court dismissed the motion for default judgment because FundEX's crossclaim failed to plead the material facts necessary to claim indemnity for a settlement under section 2 of the Negligence Act.

The dismissal was without prejudice, granting FundEX leave to amend its crossclaim and bring a new motion.

The moving party defendant, a co-owner of a residential property, sought an order for partition and sale under the Partition Act.

The responding parties opposed the motion, arguing the moving party had already extracted her share of equity through a unilateral mortgage refinancing and had unclean hands.

The court granted the motion, finding that the discretion to refuse partition and sale is strictly limited to cases of malice, oppression, or vexatious intent, which were not established here.

The court ordered the property sold and the net proceeds paid into court pending the resolution of the underlying accounting action.

This endorsement addresses the issue of costs arising from a previous order for a discovery plan.

The Plaintiff sought substantial indemnity costs, arguing success on the motion, delay, and unreasonable conduct by the Defendants.

The Defendants sought partial indemnity costs, claiming the motion was unnecessary.

The court found the underlying motion necessary due to the Defendants' insufficient cooperation and that the Plaintiff was substantially successful.

Consequently, the Plaintiff was awarded partial indemnity costs.

The appellant appealed a motion judge's decision refusing to extend the time for service of a statement of claim.

The appellant became aware of the facts giving rise to the claim in December 2012, issued the statement of claim in March 2015, but deliberately did not serve it for three years.

The Court of Appeal upheld the motion judge's refusal to extend the time, finding that the appellant's tactical decision to delay service beyond the rules' timeframe was a relevant and adverse factor.

The respondent was entitled to rely on presumptive prejudice from the expiry of the limitation period, and actual prejudice was demonstrated by the length of delay.

Following a successful motion by the plaintiff for an interlocutory injunction to prevent interference with the completion of a transmission project, the court determined the issue of costs.

The court rejected the defendants' argument that costs should be reserved to the trial judge, finding that the injunction effectively resolved the main issue in dispute.

Costs were awarded forthwith on a partial indemnity basis, fixed at $50,000 jointly against the institutional defendants and $15,000 against each of the two individual leaders of the blockade.

No costs were awarded against the remaining individual defendants.

Hydro One brought a motion for an interim and interlocutory injunction to prevent the defendants from interfering with the completion of the Niagara Reinforcement Project (NRP).

The defendants, asserting indigenous rights and jurisdiction, had blocked access to the construction site.

The court applied the RJR-MacDonald test, finding a strong prima facie case of trespass, irreparable harm due to potential financial losses and safety risks, and that the balance of convenience favoured granting the injunction.

The court also held that as a private entity, Hydro One owed no duty to consult.

The injunction was granted.

The plaintiff moved to compel answers to undertakings and refusals from the defendants, while the defendants moved for a confidentiality order.

The court upheld the defendants' refusal to answer one question regarding "any other assets under administration" as too broad and irrelevant to the plaintiff's claims.

However, the court compelled a more responsive answer regarding Sun Life's typical practice for commission payments.

The defendants' motion for a confidentiality order concerning client investment information and an executive's employment contract was dismissed, as much of the information was already publicly available or had been filed with the court, negating a serious risk of commercial harm or privacy violation.

The plaintiff brought a motion to extend the time for service of a Statement of Claim in a wrongful dismissal action.

The plaintiff deliberately delayed serving the claim due to a lack of funds.

The court dismissed the motion, finding that the plaintiff's deliberate decision not to serve the claim constituted intentional and contumelious delay.

The court also found that the plaintiff failed to rebut the presumption of prejudice to the defendants.

The plaintiff employer brought a motion for summary judgment against a former employee and his related companies for damages arising from a false invoicing scheme.

The employee had secretly incorporated a company to act as a middleman, replacing invoices from Chinese suppliers with marked-up invoices directing payment to his company's bank account.

The court granted summary judgment, finding the employee, his wife, and their company liable for civil fraud.

The court awarded compensatory damages of $864,238.75 USD, special damages for investigation costs, and $25,000 in punitive damages against the employee.

The applicant, Canadian Home Publishers Inc. (general partner), and the respondents, estate trustees of David Colville-Reeves (sole limited partner), sought conflicting determinations regarding the entitlement to profits and residual assets of Canadian Home Publishers (CHP), a limited partnership.

The court determined that CHP was dissolved upon David's death because his executors did not become substituted limited partners without consent or prior authorization.

Consequently, CHP must be wound up, and its residual assets are to be distributed equally between the general partner (Lynda Reeves, owner of CHP Inc.) and David's Estate, as per the Partnerships Act.

The court dismissed the respondents' promissory estoppel argument, finding no formal representation or detrimental reliance, and doubted its applicability against mandatory statutory provisions.

This application addressed which of two innocent parties, Bank of Montreal (BMO) or Asia Pacific International Inc. (API), should bear the loss from a third-party fraud.

An imposter fraudulently obtained a wire transfer of $428,000 from a BMO client's account to API's account for a gold purchase.

API subsequently released the gold to the fraudster.

BMO sought recovery based on a mistake of fact.

The court applied the "two innocent victims" framework, finding BMO was in a better position to prevent the fraud due to its lack of diligence in verifying the imposter's identity.

The court also determined that API could rely on the change of position defence, as its conduct, while lacking diligence, did not constitute wrongful or illegal activity under the Proceeds of Crime Act that would preclude recovery.

BMO's application was dismissed, and the funds were ordered released to API.

The appellant appealed an order of Justice Petersen dismissing the entire action against multiple defendants.

All respondents except Mr. Rabie consented to setting aside the order.

The Court of Appeal found that the motion judge had misapprehended the status of the action against Mr. Rabie, incorrectly believing he was no longer a defendant.

A default judgment against Mr. Rabie had been set aside in July 2017 regarding the breach of fiduciary duty claim, which was ordered to proceed to trial.

Mr. Rabie had not opposed the status motion or the litigation timetable order.

The Court allowed the appeal, set aside the dismissal order, and ordered the parties to attend a status hearing to establish a litigation timetable.

The defendants brought a motion to set aside ex parte Anton Piller and Mareva orders obtained by the plaintiff employer in an action for fraud.

The plaintiff alleged that its former employee and his wife used a shell company to secretly mark up the prices of electronic components purchased from Chinese suppliers.

The court dismissed the motion, finding that the plaintiff had made full and fair disclosure of material facts when obtaining the orders.

The court also held that the evidence justified the continuation of both orders, as there was a strong prima facie case of fraud, a risk of destruction of evidence, and a risk of dissipation of assets.

The self-represented plaintiff abandoned her motion for documentary production shortly before it was scheduled to be heard.

The defendants sought costs of the abandoned motion on a full indemnity basis, citing the plaintiff's conduct and previous abandoned motions.

The court awarded costs to the defendants on a partial indemnity basis, noting that while costs were justified under Rule 37.09(3), the plaintiff's self-represented status and health issues mitigated against an extraordinary costs sanction.

Costs were fixed at $3,500 for one defendant and $2,500 for the other.

The moving defendants sought leave to appeal orders refusing to compel production of agreements between the plaintiffs and their content providers in satellite signal piracy litigation.

The defendants argued that documents showing programming acquisition costs were relevant to calculating the plaintiffs’ lost profit damages.

The court applied the tests under r. 62.02(4) of the Rules of Civil Procedure and found no conflict with the cited Quebec decision and no reason to doubt the correctness of the motion judge’s ruling.

Evidence indicated that any recovered amounts would flow through to content providers or SOCAN, making the requested documents irrelevant to the damages calculation.

The issues were fact‑specific and not of sufficient importance to warrant appellate review.