Corporate/Commercial Law - OCA

The Court of Appeal for Ontario dismissed a motion by the appellants for a Norwich-type order seeking production of insurance-related documents from non-parties in the context of an appeal.

The court held that Norwich orders are a pre-trial remedy and are not available at the appellate stage.

The court also found that, even if such an order were available, it would not be appropriate in this case given the findings of fraud against the appellants and the lack of relevance of insurance proceeds to the damages award.

Costs were awarded to the respondent.

The appellant, Eli Messica, appealed an order granting the respondents’ application for the discharge of a security charge and dismissing his cross-application for damages.

The Court of Appeal upheld the application judge’s findings that the lease provided for the release of the guarantors upon assignment and that the cross-application was statute-barred by the two-year limitation period in the Limitations Act, 2002.

The court rejected arguments regarding the conversion of the application to an action and the applicability of the Real Property Limitations Act, finding no reversible error or prejudice.

The Court of Appeal for Ontario dismissed the appeal by Gurnam Multani and Surjit Multani from the orders of Justice William S. Chalmers.

The appellants had signed forbearance agreements acknowledging the amounts owing under several loans from Dramel Limited.

The court found no error in the motion judge’s reliance on the forbearance agreements to confirm the amounts outstanding and held that the fees charged did not contravene the Interest Act.

The appeal was dismissed and costs were awarded to the respondent.

The appellants appealed an order giving directions regarding the distribution of funds remaining in trust after the sale of Driftwood Beach Park Limited's assets and the reimbursement of funds by certain appellants to the company.

The Court of Appeal found no basis to interfere with the motion judge’s determinations, including findings regarding the purchase and customization of a 2022 Honda, salary for James Kemp, and compensation for Ms. Kemp.

The appeal was dismissed, and costs were awarded to the respondents.

The Ontario Court of Appeal dismissed the appeal from a summary judgment ordering the appellants, 2562583 Ontario Inc. o/a Meltwich Food Co. and Janarthanan Jeyaparan, to indemnify the franchisor, Meltwich Hospitality Group Inc., for amounts paid to the landlord, Ritson Division Retail GP Limited, following the franchisee’s breach of a commercial lease.

The court upheld the motion judge’s findings that the franchisee’s breach triggered indemnity obligations under the franchise and assignment agreements, and that the settlement between the franchisor and landlord was reasonable.

The appellants’ arguments regarding the scope of indemnity, timing of liability, and procedural fairness were rejected.

The Court of Appeal for Ontario dismissed the appeal of Lori Gallant, who sought a court order to fix the rental rate for a renewed term of a commercial lease with Sherril Johnson and Fitzroy Johnson.

The court held that the lease’s renewal clause was merely an agreement to agree, providing no basis for the court to set a rental rate or imply a method for doing so.

The court also found no breach of good faith by the respondents in the rental negotiations.

The respondents were awarded costs.

The Court of Appeal for Ontario dismissed a motion by Jonny’s Antiques Ltd. for a stay pending appeal in a mortgage enforcement dispute with 2642948 Ontario Inc. The court found that the grounds of appeal were weak, there was no evidence of irreparable harm, and the balance of convenience favoured the respondent.

The court also declined to award costs to 2642948 Ontario Inc. due to its conduct in accelerating the closing of the property sale without notice to Jonny’s Antiques Ltd.

The Court of Appeal for Ontario dismissed the appeal of Damodar Arapakota and the Arapakota 2006 Family Trust from the Superior Court’s order dismissing their application for delay.

The Court found no error in the motion judge’s conclusion that the delay was inordinate and inexcusable, and that the presumption of prejudice was not rebutted.

The Court also refused to admit fresh evidence, finding it could have been obtained earlier and would not have affected the outcome.

The appeal was dismissed and costs were awarded to the respondents.

G.E.S. Construction Limited appealed the dismissal of its motion seeking a declaration that Lloyd’s Underwriters had a duty to defend and indemnify it under a 2015 insurance policy.

The Court of Appeal upheld the motion judge’s decision, finding no waiver or estoppel by Lloyd’s and no bad faith in its conduct.

The appeal was dismissed and costs were awarded to the respondent.

The Court of Appeal for Ontario dismissed Surefire Dividend Capture, LP’s appeal from the Superior Court’s decision denying insurance coverage for losses suffered in a Ponzi scheme perpetrated by Brenda Smith, CEO of Broad Reach Capital, LP.

The court held that the fidelity bond did not cover losses caused by fraudulent acts of a sub-advisor’s directing mind, as the bond’s language did not extend “Employee” status to such individuals.

The court also found no coverage for “Theft of Customer Property” because SDC no longer had a property interest in the funds once invested in BRC.

The trial judge’s interpretation of the bond was entitled to deference, and no reversible error was found.

The Court of Appeal for Ontario dismissed the appeal from a judgment enforcing a settlement agreement in the context of a pending arbitration.

The appellants failed to pay the agreed amount by the deadline, triggering a penalty clause.

The court found no error in the application judge’s decision to proceed by application rather than action, in the finding that the respondents had not breached their obligations of good faith, or in the enforcement of the penalty clause.

The appeal was dismissed and costs awarded to the respondents.

The Court of Appeal for Ontario allowed the appeal in part, finding that the trial judge erred in failing to address the appellants’ limitations defence to the “TCS Opportunities” claim.

The appellate court held that the TCS Opportunities claim was a new cause of action, added outside the limitation period, and was therefore statute-barred.

The damages award was reduced accordingly.

The court rejected the appellants’ other ground of appeal regarding the drawing of an adverse inference about source code production, finding no error in the trial judge’s approach.

The Court of Appeal for Ontario considered whether a medical office building in Toronto was held as an asset of a partnership or as a tenancy in common.

The appellants, majority owners, sought a declaration of partnership and related relief, while the respondents argued for a sale under the Partition Act.

The Court upheld the motion judge’s finding that no partnership existed, but found error in the order dispensing with the appellants’ consent to the sale of the property.

The Court directed a reference to an associate judge for the sale and denied leave to appeal the costs order.

The Ontario Court of Appeal dismissed the appeal by Neural Systems Inc., JiangJian Wang, and George Tarazi from a summary judgment granted in favour of the Business Development Bank of Canada.

The court found the appeal to be meritless and brought solely to delay judgment, noting that the debt remained unpaid and there was no genuine issue for trial.

The appellants' arguments regarding repayment efforts were rejected, and the appeal was dismissed with costs of $5,000 awarded to the respondent.

The appellant, Shiu Yiu Kong, appealed the dismissal of his application for an oppression remedy under the OBCA and CBCA.

The Court of Appeal found no error in the application judge’s consideration of the statutory provisions, legal principles, or factual findings.

The court held that the appellant’s criticisms of the companies’ books and records did not amount to oppressive conduct, especially as the supporting evidence was inadmissible opinion evidence.

The real dispute was over the price and method of share purchase, which did not warrant court intervention.

The appeal was dismissed, and costs were awarded to the respondents.

The appellant appealed a judgment of the Ontario Superior Court of Justice that recognized a Belgian judgment obtained against it by the respondent's liquidator for unpaid textile invoices.

On appeal, the appellant sought to introduce fresh evidence regarding service of the foreign writ and alleged ineffective assistance of counsel.

The Court of Appeal for Ontario rejected the fresh evidence, noting it could have been presented below, and held that ineffective assistance of counsel is generally not a ground of appeal in civil matters.

Consequently, the court found no error in the application judge's decision to recognize the foreign judgment and dismissed the appeal.

The Court of Appeal for Ontario dismissed an appeal from a summary judgment order arising from a mortgage default.

The appellant borrower argued that the respondent lender breached its duty of good faith by failing to cancel building permits to obtain a partial refund before enforcing its security through a power of sale.

The Court of Appeal held that the lender was not contractually obligated to realize on its security in any particular order, and cancelling the permits would have reduced the property's value.

Consequently, the motion judge did not err in finding that the lender acted reasonably and in good faith to maximize its recovery.

Dag Hrvoic appealed a trial judgment that found equal shareholdings between him and Melissa Hrvoic in a co-founded company and ordered him to purchase Melissa's shares.

The appeal challenged the trial judge's findings on the shareholding agreement, company valuation, the application of the "clean hands" doctrine, and the commencement of the limitation period for Melissa's claim.

The Court of Appeal dismissed all grounds of appeal, affirming the trial judge's factual findings and legal conclusions, including the existence of an agreement for equal shareholdings and the proper application of the Limitations Act.

This appeal addressed whether two insurers, AIG and Lloyd's, had a duty to defend a mutual policyholder (the City of Timmins) in a progressive property damage claim.

The key issues were the role of "premature" evidence in duty to defend analysis, the interpretation of an "Expected or Intended Injury" exclusion clause, and whether a "crystallizing event" (an AMEC Report) triggered this exclusion.

The Court of Appeal upheld the application judge's decision, finding that the AMEC Report was "premature" evidence and not a "crystallizing event" that would negate Lloyd's duty to defend.

The court affirmed that the underlying claim was based on negligence, not intentional conduct, and therefore the exclusion clause did not apply, triggering Lloyd's duty to defend.

The applicant, Vale Canada Limited and related entities, brought a motion before the Court of Appeal for Ontario to expedite the hearing of their appeals.

These appeals stem from a lower court decision regarding jurisdiction and forum non conveniens in a complex insurance dispute with parallel proceedings in New York.

The motion judge dismissed the request for expedition, emphasizing that judicial comity requires avoiding an "unseemly race" between jurisdictions and that the issue of forum non conveniens should be determined on its merits by the respective appeal courts, not by the speed of litigation.