Melvyn Lloyd Solmon

The plaintiff, the former manager of the defendant investment fund, sued for fees and damages following the termination of its management agreement.

The defendant fund counterclaimed, alleging the manager was terminated for cause due to material breaches of the standard of care, particularly regarding its handling of the fund's liquidity crisis and its recommendation to enter into a high-interest loan rather than suspending redemptions.

The court found that the manager materially breached the standard of care, justifying the termination.

However, the fund's counterclaim for damages was dismissed as statute-barred under the Limitations Act, 2002.

The manager was awarded certain unpaid fees accrued prior to termination.

Following the dismissal of the plaintiffs' claim to rectify a promissory note and the dissolution of an interim injunction, the successful defendants sought costs.

The defendants relied on contractual indemnity provisions in the promissory note and guarantee to claim full indemnity costs.

The court held that the plain language of the contracts entitled the main defendants to full indemnity costs.

The costs claimed were found to be reasonable under Rule 57.01, with a minor deduction for a defendant lawyer's time spent attending trial as a spectator.

A separate defendant was awarded partial indemnity costs.

On appeal from a Superior Court decision, the appellant challenged the application judge's interpretation of a management agreement and the restated articles of incorporation concerning Class C shares of an investment fund.

The appellant argued that a payment it made to itself should be characterized as debt rather than an unauthorized performance dividend.

The Court of Appeal upheld the lower court's decision, finding no palpable and overriding error or extricable error in law.

The court affirmed that the payment was an undeclared and unauthorized performance dividend, and that nothing in the fund's articles converted it into debt.

The plaintiffs sought to rectify a promissory note, arguing that the fixed due date of December 31, 2015, did not reflect the true intent of the parties and was a mistake.

Alternatively, they argued there was a subsequent agreement to defer payment until a new financing deal was completed.

The Superior Court of Justice dismissed the plaintiffs' claims, finding that the written terms of the note accurately reflected the parties' agreement and that no subsequent agreement to defer enforcement had been reached.

The interim injunction restraining the defendants from enforcing the note was dissolved.

The appellant appealed a civil contempt sentence imposed by the motion judge for multiple failures to comply with court orders.

The motion judge had imposed six consecutive sentences totaling 21 months.

On a motion to vary, the motion judge reduced the global sentence to 14 months after finding the appellant had purged contempt in part and made good faith settlement payments.

The appellant argued the motion judge erred by not reconsidering whether sentences should be concurrent rather than consecutive.

The Court of Appeal found no error in principle but, considering further good faith payments made since the motion judge's decision, reduced the global sentence to 12 months.

The applicant sought a determination of his rights under a settlement agreement, specifically requesting an order that the respondents execute an unamended standard LawPro release.

The respondents argued the release required amendments to carve out their continuing action against a non-settling defendant and to exclude the applicant's obligations as a bare trustee.

The court found it had jurisdiction under Rule 14.05(3)(d) to interpret the agreement.

Applying principles of commercial contract interpretation, the court held that the parties' agreement contemplated a modified release tailored to the specific litigation, and ordered the execution of the respondents' amended version.

The applicant Fund sought the return of $1,461,220 that its Former Manager unilaterally paid itself upon resigning.

The Former Manager claimed the funds were owed as Incentive Participation Amounts (IPA) compensation under the Management Agreement.

The court found that the IPA compensation was contractually required to be paid as dividends.

Because the Fund no longer qualified as an open-end mutual fund, it was subject to the solvency test under s. 42 of the Canada Business Corporations Act, which it could not meet.

Therefore, the Fund was prohibited from declaring dividends, making the Former Manager's self-payment unauthorized.

The court ordered the Former Manager to repay the funds but declined to award punitive damages, noting the Former Manager did not conceal its actions.

The appellant, a personal guarantor of corporate indebtedness, appealed a summary judgment awarding the respondent lender US$3 million plus interest at 21% on his personal guarantee.

The guarantor had negotiated an amended guarantee that excluded facility and forbearance fees totaling US$2.75 million from his liability.

The lender acquired the company's assets through a receivership sale, with the purchase price calculated as total debt less US$3 million.

The Court of Appeal found that the motion judge erred by failing to consider that the amended guarantee served to reduce the company's obligations that were guaranteed.

The court held that the guarantor's liability should be calculated as the remaining debt after the credit bid (US$3 million) less the excluded fees (US$2.75 million), resulting in liability of only US$250,000.

This case conference endorsement addresses several procedural matters in related actions between Mr. Gerstel and Mr. Berkovits.

The court ordered peremptory examinations for discovery dates and scheduled a future case conference for trial management.

A key issue addressed was Mr. Gerstel's request for particulars regarding Mr. Berkovits's possession of documents sealed in Mr. Gerstel's matrimonial proceedings.

The court declined to order Mr. Berkovits to explain how he obtained the documents, reiterating that a sealing order only prevents public access from the court file and does not imply a confidentiality injunction preventing others from possessing or transmitting them.

The court emphasized that the admissibility of such documents was not currently in issue and there was no free-standing burden on a plaintiff to explain the origin of documents listed in an affidavit of documents.

This is a costs endorsement following an appeal of a partial summary judgment motion.

The appellants sought rescission of an agreement of purchase and sale and damages, with their claims being representative of 20 other similar outstanding actions.

The Court of Appeal allowed the appeal in part, awarding rescission to one appellant and damages to another (with calculation to be determined by the Superior Court).

The court addressed the costs of the partial summary judgment motions, considering offers to settle that included interest provisions and applied to multiple similar claims.

The court awarded costs to the appellants for the partial summary judgment motions while reducing the amount claimed due to the dismissal of motions against three individual defendants and the ongoing nature of the claims.

This is a costs endorsement following a Court of Appeal decision that allowed an appeal in part.

The appellant sought costs in the court below on a partial indemnity basis up to the date of its offer to settle, and on a substantial indemnity basis thereafter.

The Court of Appeal rejected the appellant's reliance on an offer to settle made in the context of its own application, which had been dismissed.

The court found the result on appeal was mixed and awarded costs to the appellant in the amount of $28,565.99, the same amount originally awarded to the respondent in the court below.

The appellants appealed an arbitration decision that dismissed their claim for rectification of a unanimous shareholders' agreement.

The appellants argued that the right of first offer clause contained a mutual mistake by allowing a partial take-up of shares, and sought to rectify it to require an all-or-nothing purchase.

The arbitrator found no prior common intention to support rectification.

On appeal, the court held that the issues raised by the appellants were questions of fact or mixed fact and law, not extricable questions of law.

The appeal was dismissed with costs awarded to the respondents.

The defendant moved to set aside a default judgment obtained after she failed to attend the trial.

She explained her absence was due to generalized anxiety disorder, feeling overwhelmed after her lawyer removed himself from the record on the eve of trial, and a pre-trial judge's prediction that an adjournment would be denied or granted on onerous terms.

The court found her explanation reasonable, noting she moved promptly to set aside the judgment and presented an arguable defence based on an oral family agreement and part performance.

The motion to set aside the default judgment was granted.

The appellant employer and respondent employee settled two actions for $1,500,000.

The minutes of settlement required a $250,000 payment to the respondent's solicitors in trust 'with no deductions'.

The appellant, on accounting advice, withheld and remitted taxes to the CRA on the full settlement amount, applying the withholding for the trust payment against another payment made directly to the respondent.

The application judge found the appellant breached the minutes.

The Court of Appeal allowed the appeal, finding the minutes ambiguous and concluding the appellant acted reasonably.

Furthermore, the respondent suffered no loss as the remitted funds stood to his credit with the CRA.

The appellants purchased luxury hotel condominium units in the Trump International Hotel based on financial estimates provided by the developer, Talon.

The estimates projected significant returns but were based on uninformed opinions and understated expenses.

The appellants sued for misrepresentation.

The motion judge dismissed their claims, finding their reliance on the estimates unreasonable and barred by entire agreement clauses.

The Court of Appeal reversed, holding that reliance was reasonable and it would be unconscionable to enforce the exculpatory clauses given Talon's evasion of Securities Act protections.

The Court ordered rescission for one appellant and damages for the other.

The plaintiff, a former associate lawyer, brought a motion to consolidate her wrongful dismissal action against her former employer with a subsequent libel action against the employer and their legal counsel.

The libel action arose from comments made by the employer's counsel to a legal publication regarding the wrongful dismissal pleadings.

The court dismissed the motion to consolidate, finding that doing so would likely force the defendants' counsel to step down due to conflicts of interest and risk breaching solicitor-client privilege.

Instead, the court ordered a stay of the libel action pending the resolution of the wrongful dismissal action.

The applicants sought a penalty for the respondent, who was previously found in contempt for multiple breaches of six court orders related to the disclosure of financial information for several franchise businesses.

The court found that the respondent deliberately and continuously flouted the orders to frustrate the applicants' ability to monitor the businesses, which ultimately lost all value.

The court sentenced the respondent to consecutive terms of imprisonment totaling between 18 and 21 months less a day, and ordered him to pay substantial indemnity costs of $369,644.26.

The applicants brought motions for contempt against the respondents, specifically Fateh Singh Sidhu, for breaching eight court orders related to the disclosure of financial and operational information regarding several Popeye's franchises.

The court found that the orders were clear and unequivocal, and that Sidhu deliberately and willfully disobeyed them.

The court concluded beyond a reasonable doubt that Sidhu was in civil contempt and adjourned the matter for a penalty hearing.

The plaintiff, a Canadian distributor, brought an action against the defendants following the repudiation of a distribution agreement during US Chapter 11 bankruptcy proceedings.

The defendants obtained a temporary restraining order from the US Bankruptcy Court enjoining the Canadian action.

The plaintiff then brought a motion in Ontario seeking to enforce an alleged undertaking made by the defendants to the US court to bring a motion to stay the Canadian action.

The Ontario Superior Court of Justice dismissed the motion, finding it premature and noting that the US court had already considered the issue and was the appropriate forum to determine its own jurisdiction, emphasizing principles of comity in cross-border insolvencies.

The applicant employer sought a determination that it was entitled to deduct withholding tax and employer statutory contributions from a settlement payment resolving an employment dispute.

The respondent employee brought a motion for summary judgment to enforce the minutes of settlement, arguing that legal costs payable to counsel were expressly to be paid without deductions.

The court held that the minutes clearly distinguished between legal costs payable directly to counsel and employment income payments subject to withholding tax.

The employer was not entitled to deduct withholding tax from the legal fee payment or subtract CPP, EI, and Employer Health Tax contributions from the settlement amount.

However, the court declined to enforce the default penalty clause because the deductions resulted from a mistaken interpretation of tax obligations rather than deliberate default.