Michael David Schafler

The court considered an application by InFrontier AF LP to recognize and enforce an arbitral award issued in its favour by a Dubai-based arbitrator under the Dubai International Arbitration Centre (DIAC) Rules.

The respondent, Roeen Rahmani, opposed the application, arguing that the arbitration was not conducted in accordance with the parties’ agreement, that he was denied a fair hearing, and that enforcement would be contrary to Ontario public policy.

The court found that, due to legislative changes in Dubai, the DIAC Rules properly replaced the DIFC-LCIA Rules referenced in the parties’ agreement, and that the respondent had not established any procedural unfairness or public policy violation.

The application to recognize and enforce the award was granted.

The plaintiffs, Avante Automobile (2017) Corporation and Francesco Serpa, sought damages from BMW Canada Inc. for breach of statutory, contractual, and common law duties in relation to the purchase and operation of a BMW dealership.

The court found BMW Canada liable for failing to properly document an extension to complete required renovations and for not following the termination provisions of the Retailer Agreement.

However, the court preferred the defendant’s evidence on valuation and found no net recoverable damages.

The action was dismissed, subject to costs.

The respondents brought a motion to stay an application by the applicant to set aside an arbitral award.

The core dispute revolved around whether a forum selection clause in an asset purchase agreement, which designated New York courts, applied to the application to set aside the award, or if Ontario's International Commercial Arbitration Act and the Model Law governed due to the arbitration's "place" being Toronto.

The court found that the arbitration procedure was subject to an exception in the forum selection clause and that Toronto was the agreed or deemed "place" of arbitration.

Consequently, Ontario law and jurisdiction applied for setting aside the award.

The motion to stay was dismissed.

This decision addresses two motions: a Mareva injunction sought by CIM Mackenzie Creek Limited Partnership and Jiubin Feng against NSR Toronto Holdings Ltd., and a cross-motion by NSR Toronto Holdings Ltd. to stay CIM's counterclaim as an abuse of process.

CIM's Mareva injunction, based on alleged fraud by NSR in the sale of the Mackenzie Creek Project to Sunny Co., was dismissed due to lack of proof of fraud and no risk of asset dissipation.

NSR's cross-motion to stay CIM's counterclaim was granted because CIM failed to promptly disclose a settlement agreement with Sunny Co., which materially altered the litigation's adversarial landscape, constituting an abuse of process.

The court emphasized the strict disclosure requirements for such agreements.

The appellant appealed an order dismissing its claims against two corporate and individual respondents under Rule 21.01(1)(b) for lack of contractual privity and other deficiencies.

The motion judge had denied leave to amend.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's conclusion that the respondents were not parties to the alleged contract (Mandate) and that other claims were unsustainable.

The court affirmed that reviewing a document expressly pleaded and incorporated into the statement of claim does not constitute considering evidence on a Rule 21.01(1)(b) motion and upheld the discretionary refusal to grant further leave to amend.

The appellants (UDG) appealed a motion judge's decision to permanently stay their Ontario proceeding in favour of ongoing litigation in Singapore and Dubai.

UDG had commenced the Ontario action seeking declarations against the respondents (TAP), effectively advancing as claims the same allegations they made as defences in the foreign proceedings.

The motion judge found that a related loan involving Rutmet was distinct from UDG's loans and that UDG's Ontario action was an attempt to gain a jurisdictional advantage.

The Court of Appeal upheld the motion judge's decision, finding no error in her fact-finding, exercise of discretion, or analysis of attornment and forum selection clauses.

The appeal was dismissed, and the Ontario proceedings remained stayed.

The moving parties sought a stay pending appeal of a lower court's decision to permanently stay their underlying action in Ontario on the basis of forum non conveniens and forum selection clauses.

They also sought an order expediting the appeal.

The motion judge dismissed both requests, applying the three-part RJR-MacDonald test for stays pending appeal.

The court found that while the appeal raised a serious question, the moving parties failed to demonstrate irreparable harm or that the balance of convenience favoured granting the stay.

The court also denied the request to expedite the appeal, finding no urgency.

The Safe Harbour defendants sought to schedule a motion for partial summary judgment.

The plaintiff opposed, citing the recent Court of Appeal decision in *Malik v. Attia*, which set out three requests for judges considering partial summary judgment motions.

The court applied the "bright line rule" from *Mason v. Perras Mongenais* and *Butera v. Chown, Cairns LLP*, finding that a risk of duplication or inconsistent verdicts existed due to common issues, including the limitation period and the cause of the land re-designation.

The court also considered the cost-effectiveness of proceeding with a partial summary judgment.

The motion to schedule the partial summary judgment was refused.

The plaintiffs sought interim relief by way of a Certificate of Pending Litigation (CPL) against five properties and an oppression remedy under the Ontario Business Corporations Act (OBCA), specifically the appointment of an inspector to audit financial information.

The court dismissed the request for a CPL, finding that the plaintiffs had no direct interest in the properties, which were corporate assets, and that a CPL would cause disproportionate harm to the defendants.

However, the court granted the request for an inspector, finding that the plaintiffs had standing and established a prima facie case of oppression based on their termination, inconsistent treatment as an employee versus partner, and denial of financial information.

The court determined that an inspector was necessary to clarify commingled funds and determine the plaintiffs' interests, with costs to be borne by the plaintiffs initially.

The individual defendants, officers and directors of BMW Canada Inc., brought a motion to strike the Amended Statement of Claim against them, arguing it failed to disclose a reasonable cause of action.

The plaintiffs alleged various torts including negligence, breach of fiduciary duty, and intentional interference with economic relations.

The court granted the motion, finding that the pleading failed to establish a basis for personal liability against the individual defendants, as their alleged actions were within their corporate capacity, and the elements for the pleaded torts were not properly established.

Leave to amend was granted, and costs were awarded to the individual defendants.

This is a costs endorsement on appeal from a partial summary judgment motion.

The appellants (lenders) and respondents (Deloitte) agreed on the quantum of costs for both the motion below and the appeal but disagreed on timing of payment.

The respondents argued costs should remain in the cause based on an alleged agreement that no money change hands on interlocutory motions until final resolution.

The Court of Appeal rejected this argument, finding it inconsistent with the respondents' own prior positions and earlier costs orders in the litigation.

The court determined that the motion judge erred in granting partial summary judgment and that costs should be fixed and payable immediately.