Maurice J. Neirinck

The defendants brought a motion seeking to stay an Ontario action alleging negligence in the provision of legal services relating to litigation in North Carolina.

The plaintiff argued that Ontario had jurisdiction because it was present in Ontario and allegedly sustained damages there.

Applying the real and substantial connection test articulated in Club Resorts Ltd. v. Van Breda, the court found that none of the presumptive connecting factors linked the dispute to Ontario.

The alleged negligence occurred in North Carolina, the defendants were based there, and the relevant contract and witnesses were located in the United States.

The court concluded that Ontario lacked jurisdiction simpliciter and that, in any event, North Carolina was the clearly more appropriate forum.

The plaintiff sought recovery of $57,000 paid to the defendant in connection with a fraudulent investment scheme involving purported shares in a company referred to as STS.

The court found that the plaintiff delivered a cheque payable to the defendant for the sole purpose of applying the funds to purchase STS shares.

Instead, the funds were deposited into a joint account controlled by the defendant and another individual and were largely applied to other purposes before a later cheque was issued that did not secure shares for the plaintiff.

The court held that the circumstances gave rise to a constructive trust and that the defendant, by facilitating the misapplication of the funds, became liable as a trustee de son tort.

The court rejected the defendant’s limitation period defence, finding that the equitable claim for breach of constructive trust was not time-barred under the applicable transitional provisions of the Limitations Act, 2002.

A court-appointed receiver-in-aid-of-execution sought an advance order immunizing it from personal liability for costs in litigation intended to recover assets allegedly concealed by the judgment debtor through family members, corporations, and third parties.

The receiver argued that the receivership estate lacked sufficient assets to cover potential adverse costs and that denying immunity would prevent the recovery action from proceeding, undermining access to justice.

The court reaffirmed the general rule that receivers and trustees who initiate litigation do so at their own risk unless indemnified by estate assets or creditors.

The proposed undertaking by the judgment creditor was found insufficient and unsupported by evidence of financial capacity.

The court held that the case did not present exceptional circumstances warranting a departure from the “loser pays” principle and refused to create a novel category of advance cost immunity orders.

The plaintiffs advanced funds to a corporation that later went into receivership.

The plaintiffs sought repayment from the individual defendants based on a poorly drafted document entitled 'Agreement to Purchase'.

The court applied the factual matrix approach to contractual interpretation and concluded that the document was intended to be a personal guarantee by the individual defendants for the corporation's debt.

Judgment was granted in favour of the plaintiffs for the outstanding principal and interest.

The Bank of Montreal sought leave to appeal a decision certifying two related class actions arising from a Ponzi scheme perpetrated by a bank customer.

The Bank argued that the motions judge erred in finding that the pleadings disclosed causes of action in knowing assistance and negligence, relying on section 437 of the Bank Act and the Anns test for duty of care.

The Bank also challenged the finding that the claims raised common issues.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's conclusions that it was not plain and obvious the claims would fail and that there was some basis in fact for the common issues.

The applicant receiver sought leave to issue a writ of possession over a mortgaged property after alleging the respondent breached Minutes of Settlement by renting out the property rather than residing there.

The dispute centred on the interpretation of the phrase that the respondent would “remain in possession” of the property.

Applying established principles of contractual interpretation, the court held the settlement terms were clear and did not require the respondent to personally reside at the property.

The respondent retained possession so long as specified obligations were met, and there was no evidence those conditions were breached.

Accordingly, the alleged breach did not occur and the applicant was not entitled to enforce possession.

A non-party sought leave to appeal an order requiring production of decades of corporate financial statements in connection with a summary judgment motion.

The order, originally made by a master and upheld on appeal, required production of financial statements of a pharmaceutical company alleged to be carrying on the business of a predecessor company whose sale generated royalty and option agreements benefiting the plaintiffs.

The moving party argued that conflicting decisions existed and that the order was incorrect because the documents were irrelevant, disproportionate, and improperly required disclosure from a non-party.

The court held that the alleged conflicting decisions involved different procedural stages and discretionary contexts, and therefore did not conflict in principle.

It further found the financial statements had a semblance of relevance to issues of liability, including whether the successor company continued the predecessor’s business.

Leave to appeal was refused.

The respondent brought a motion to enforce a settlement arising from family and related civil proceedings concerning the parties’ jointly owned business.

The moving party had accepted an offer to settle shortly after a major customer issued a notice terminating its business relationship, which allegedly significantly reduced the value of the company.

The responding party argued that the offer was no longer capable of acceptance or that enforcement would be unfair and unconscionable due to the business’s diminished value and alleged bad faith.

The court held that the responding party affirmed the settlement through post‑acceptance conduct, including excluding the other party from the business and proceeding as if the agreement existed.

The settlement was therefore enforceable and not unjust or unconscionable in the circumstances.

The plaintiff sought certification of a proposed class proceeding against a financial institution relating to losses arising from a fraudulent investment scheme involving a tooth whitening promotion.

Earlier reasons had found that the criteria under s. 5 of the Class Proceedings Act, 1992 were satisfied except for the requirement that the representative plaintiff adequately represent the class.

The court had concerns regarding the plaintiff’s health following a stroke and his ability to perform the role.

After further medical evidence was filed, including expert neurological evidence confirming no cognitive impairment, the court accepted that the plaintiff could adequately represent the class and that the litigation plan addressed communication with class members and management of damages.

The court concluded that the statutory criteria were met and certified the proceeding as a class action.

The plaintiff sought certification of a proposed class action arising from an alleged investment fraud involving monies deposited into bank accounts held at the defendant bank.

Earlier reasons had found the certification criteria satisfied except for the adequacy of the litigation plan under s. 5(1)(e)(ii) of the Class Proceedings Act, 1992.

After filing a revised litigation plan addressing communication with class members, management of damages, and procedural issues including a jury notice, the court determined the deficiencies had been remedied.

The court approved revised common issues and concluded the statutory requirements for certification were met.

The proceeding was certified as a class action and a representative plaintiff was appointed.

A spouse without legal title sought an interlocutory injunction restraining mortgagees from exercising power of sale over Muskoka properties alleged to constitute a matrimonial home.

The mortgagees relied on a statutory declaration by the titled spouse asserting that another property had been designated as the matrimonial home under s. 21(3)(d) of the Family Law Act.

The court found strong evidence capable of belief that the lender had actual or constructive notice that the property was used as a family cottage and therefore a matrimonial home.

The presumption in s. 21(3)(d) could not protect a lender who knew facts inconsistent with the declaration.

Applying the three-part injunctive test, the court found a serious issue to be tried, irreparable harm to the spouse, and a balance of convenience favouring preservation of the property pending trial.

The plaintiff sought to certify a class action against the Bank of Montreal arising from a $77 million investment fraud perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court found that the plaintiff satisfied the criteria for certification under s. 5 of the Class Proceedings Act, except for the requirement of a workable litigation plan.

The court adjourned the certification motion to allow the plaintiff to provide an acceptable litigation plan.

The plaintiff sought to certify a class action against the Bank of Montreal (BMO) arising from a $77 million Ponzi scheme perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court granted leave to bring the certification motion and found that the plaintiff met the first four criteria for certification under s. 5(1) of the Class Proceedings Act.

However, the court found the representative plaintiff's health issues and deficiencies in the litigation plan rendered the final criterion unsatisfied.

The certification motion was adjourned for 30 days to allow the plaintiff to address these deficiencies.

Following a civil judgment awarding $3.5 million, the court determined the appropriate quantum of costs and pre-judgment interest.

The parties agreed the successful party was entitled to partial indemnity costs to September 30, 2010 and substantial indemnity costs thereafter but disputed the applicable hourly rates.

The court fixed partial indemnity rates for counsel after mediation and accepted substantial indemnity rates calculated at 1.5 times the partial indemnity rate pursuant to Rule 1.03 of the Rules of Civil Procedure.

The court also addressed deductions for certain attendances and confirmed taxable disbursements.

Pre-judgment interest was ordered on the judgment amount from August 27, 2003 at 3.3% pursuant to s.127(1) of the Courts of Justice Act.

The plaintiff mortgagor brought an action against the defendant mortgagees for the improvident sale of a 125-acre development property under a power of sale.

The property was sold for $12.5 million.

The court found that the defendants failed to take reasonable precautions to obtain the fair market value of the property, having listed it at an inordinately low price, failed to adequately market it, unreasonably restricted the field of potential buyers, and acted with undue haste.

After reviewing competing appraisal evidence, the court determined the fair market value of the property at the time of sale was $16 million.

The court awarded the plaintiff $3.5 million in damages, representing the difference between the fair market value and the sale price.

The appellant appealed an order approving a settlement by an Interim Receiver.

The appellant argued there was no evidence to sustain the motion judge's findings under the Soundair principles.

The Court of Appeal dismissed the appeal, finding ample evidence in the Interim Receiver's reports that no assets beyond certain Swiss accounts were locatable or realizable, and that there was a 60% chance of success in related California litigation.

The court concluded the settlement was the best that could be achieved in the circumstances.

The appellant appealed and the respondents cross-appealed a trial judgment awarding damages to the appellant based on negligent misrepresentation.

The Court of Appeal found that negligent misrepresentation was not pleaded and the trial judge's findings regarding non-disclosure of a commission were contradicted by the appellant's own admission.

Furthermore, there was no evidence of reliance.

The appeal was dismissed, the cross-appeal was allowed, and the counterclaim was dismissed.

The appellant appealed the dismissal of its claim that it communicated confidential information regarding the availability and purchase price of a commercial property under an oral confidentiality agreement.

The appellant argued the trial judge failed to make adequate findings of fact and credibility.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons permitted meaningful appellate review.

The trial judge reasonably concluded the information was not confidential and noted the absence of any written documentation supporting the alleged agreement.

The appellants appealed a trial judgment finding them liable on a mortgage and rectifying the principal amount.

The Court of Appeal upheld the trial judge's findings that a promissory note evidenced a debt secured by the mortgage assumed by the appellant, and that the appellant had actual or imputed knowledge of the correct amount owing, justifying rectification.

The respondent's cross-appeal on trial costs was dismissed.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed a trial judgment dismissing their claim regarding an alleged misrepresentation by the respondent's employees.

The trial judge found that there was no real intention on the part of the prospective purchasers and the appellants to enter into an agreement to purchase the properties.

The Court of Appeal upheld this finding, noting it was consistent with the parties' conduct and not unreasonable.

The Court also rejected the argument that missing portions of the trial transcript prejudiced the appellants' ability to challenge the factual finding, as the missing evidence did not relate to the issue.

The appeal was dismissed with costs.