Michael Nowina

The appellant sought to enforce an alleged agreement, contained in an email exchange, for the acquisition of shares in a family corporation and a declaration that the respondent had consented to the sale of shares owned by one of her brothers.

The motion judge found no binding agreement, determining that essential terms regarding the transaction's structure, method of payment, and dividend payments were not settled.

The Court of Appeal upheld this decision, affirming that the structure and method of payment, which directly impacted the net-of-tax amount, and the precise terms of dividend payments were essential terms that had not been agreed upon.

The applicant, EDE Capital Inc., sought to set aside two arbitral awards: a Partial Award on Damages and a Partial Award on Costs.

The applicant argued that the arbitrator breached procedural fairness by reopening issues and making inconsistent findings, exceeded jurisdiction by affecting non-parties, and mischaracterized claims under the Securities Act.

The court determined that the International Commercial Arbitration Act (ICAA) and the Model Law applied due to one respondent's habitual residence in China.

The court dismissed the application, finding no serious procedural unfairness or excess of jurisdiction, and affirmed the arbitrator's decision, including the costs award.

The moving parties brought a motion for leave to appeal the orders of the motion judge dated April 24, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

The plaintiffs brought a motion for a Mareva injunction against the defendants, alleging they were defrauded of over $800,000 CAD/USD through a fake investment scheme.

The defendants allegedly promised to invest the funds in options, futures, or forex, but instead diverted the funds and ceased communications.

The court found the plaintiffs established a strong prima facie case of fraud, conspiracy, breach of trust, breach of fiduciary duty, knowing assistance, and conversion.

The court granted the Mareva injunction, finding a serious risk of asset dissipation.

This endorsement addresses three motions in an oppression action concerning the Paramount Group, a food services business facing shareholder deadlock.

The plaintiffs (Mohamad Fakih et al.) moved to strike portions of the defendants' counterclaim alleging fraudulent misrepresentation and for security for costs.

The defendants (AHM Investments Corporation et al.) moved for compliance with financial disclosure and the appointment of an auditor.

The court partially granted the motion to strike due to insufficient particulars of fraud.

The motion for security for costs was dismissed, as the counterclaim was inextricably linked to the defence and, at its core, an oppression remedy claim, which is exempt from security for costs under the OBCA.

The defendants' motion for financial disclosure and the appointment of an auditor was granted, affirming shareholders' mandatory right to audited financial statements, with the Paramount Group responsible for the audit fees.

The proposal trustee moved for court approval of a bankruptcy proposal for the debtor company.

The debtor's parent company, which held the largest monetary claim, opposed the proposal, but its vote was disregarded by the chair of the creditors' meeting as a related party under s. 109(6) of the Bankruptcy and Insolvency Act.

The parent company objected to the scope of the release granted to the debtor's sole director, specifically regarding potential claims for preferences and transfers at undervalue.

The court upheld the exclusion of the related party's vote, finding it would defeat the purpose of the proposal and harm unrelated trade creditors.

Applying the Metcalfe criteria, the court found the director releases to be fair and reasonable, and approved the proposal.

Following the dismissal of the defendants' motion on the basis of forum non conveniens, the Litigation Trust and the Class sought costs.

The court awarded the Class $6,000 on a partial indemnity basis for maintaining a watching brief.

The court awarded the Litigation Trust full indemnity costs of $208,590.73, finding that the defendants' motion was captured by the Standstill Agreement between the parties, which provided for full indemnity costs in the event of a breach.

The defendants Pöyry brought a motion seeking orders to prohibit "Releasors" from assisting the Litigation Trustee in a Singapore action and declaring that the Litigation Trustee breached a court-approved settlement agreement by pursuing claims against Pöyry in Singapore.

Pöyry argued that the Litigation Trust's claims were covered by release and bar order provisions of a prior settlement agreement in the class action.

The Litigation Trust opposed, arguing the motion breached a Standstill Agreement, was barred by res judicata, and that the Ontario court should defer to the Singapore courts on grounds of comity and forum non conveniens.

The court dismissed Pöyry's motion, accepting the forum non conveniens arguments.

It declined to provide an opinion or interpret its own settlement orders for the Singapore court, emphasizing that the Singapore court was the appropriate forum to determine the effect of the Pöyry Settlement Agreement and the Ontario court's orders on the Singapore action.

The plaintiffs brought a motion for further document production, including an independent search of a defendant's emails, and costs thrown away due to a trial adjournment.

The defendants brought motions for leave to amend a statement of defence and for production of settlement agreements between the plaintiffs and other defendants.

The court dismissed the plaintiffs' discovery motion, finding they had declared readiness for trial despite knowing of the alleged document deficiencies.

The defendants' motion for production of settlement agreements was granted in part, with individual settlement amounts ordered redacted.

The plaintiffs, principals of a trucking business, sued HSBC Bank Canada seeking declarations that their personal guarantees were void.

HSBC counterclaimed against the plaintiffs and others for fraudulent and negligent misrepresentation, conspiracy, and conversion, alleging they provided false audited financial statements, forged signatures, and fictitious accounts receivable to induce the bank to lend over $9 million.

The court dismissed the plaintiffs' claim and granted judgment in favour of HSBC on its counterclaims, finding the defendants liable for over $10 million in damages for misrepresentation, nearly $4 million for conversion, and $100,000 in punitive damages.

The defendants brought a motion for partial summary judgment seeking dismissal of portions of an oppression remedy claim on the basis that certain alleged acts were statute‑barred.

The claim arose from a long‑running business dispute in which the plaintiff alleged that the individual defendant conducted the affairs of several corporations in a manner oppressive or unfairly prejudicial to the plaintiff’s interests.

The court held that the alleged acts formed part of a complex factual matrix concerning the parties’ ongoing business relationship and that determining when the limitation period began to run required detailed factual findings.

Because a full appreciation of the evidence could not be achieved on the motion record, summary judgment was inappropriate.

The motion was dismissed and the issues were left for determination at trial.

The appellants appealed an order finding them in contempt of a receivership order.

They argued the motion judge erred by declining to draw an adverse inference against the receiver for failing to call two independent witnesses, and that this failure reversed the burden of proof.

The Court of Appeal dismissed the appeal, holding that drawing an adverse inference is discretionary and the motion judge made no palpable and overriding error in his findings of fact and credibility.

The appellants, major creditors of a bankrupt estate, appealed a Superior Court decision that varied a registrar's taxation of the trustee's final Statement of Receipts and Disbursements.

The registrar had drastically reduced the trustee's fees to $1, disallowed significant legal disbursements, and ordered the trustee to personally pay solicitor and client costs due to misconduct.

The Superior Court judge restored many of the fees and disbursements, finding the registrar exceeded his jurisdiction.

The Court of Appeal allowed the appeal in part, finding the registrar did have jurisdiction under s. 152(6) of the BIA to review previously taxed solicitor accounts.

The Court fixed the trustee's fees at $49,464.44, allowed $100,000 for the estate solicitor's fees, and ordered the trustee to personally pay half of the appellants' costs of the taxation hearing on a solicitor and client scale due to his misconduct.