Patricia Anne Virc

This is a complex oppression and wrongful dismissal matter involving a closely held family company.

The plaintiff, an estranged son-in-law employed for 27 years, was terminated following discovery of a fraudulent invoicing scheme through which he misappropriated over $500,000 from the family businesses.

The plaintiff claims oppression and wrongful dismissal, while the defendants counterclaim for fraud, conversion, and breach of fiduciary duty.

The court found the plaintiff was terminated for cause due to the fraudulent scheme, was not oppressed, and breached his fiduciary duties.

The plaintiff is liable for damages totaling approximately $571,452.25 plus disgorgement of profits.

The court ordered a buyout of the plaintiff's 50% interest in the operating company at a price to be determined by a jointly retained neutral valuator, but dismissed claims for buyout of the real estate holding companies and oppression remedies.

The Respondent brought a motion for the sale of a jointly owned investment property.

The Applicant opposed the sale, arguing it was malicious, vexatious, and oppressive, and that she wished to retain the property as an income source given the Respondent's early retirement.

The court found that a joint tenant has a prima facie right to partition or sale under the Partition Act, and the Applicant failed to demonstrate sufficient reason to deny the sale, as it was an inevitable outcome at trial and not a matrimonial home.

The motion for sale was granted, with the Applicant's share of net proceeds to be released and the Respondent's share held in trust.

The court also addressed costs and expressed concerns about the ongoing litigation and resource imbalance between the parties.

The applicant brought a motion seeking an order for reunification therapy between herself and the parties' 15-year-old daughter, C, with the respondent covering expenses.

The court, applying the five-factor test from Leelaratna v. Leelaratna, dismissed the motion.

The judge found no compelling expert evidence to support the therapy, noted the interim stage of the proceedings, and emphasized C's views as a mature minor, who was not willing to voluntarily participate at this time.

The court concluded that forcing reunification therapy would not be in C's best interests and preferred an organic approach to mending the relationship.

This endorsement from the Court of Appeal for Ontario addresses a request for directions regarding its prior decision.

The respondent sought clarification, arguing the previous decision might have inadvertently set aside parts of the application judge's order that were not appealed or were abandoned.

The court clarified that its decision to set aside the application judge's order was due to identified errors affecting lien rights and PPSA registration.

It affirmed that the appellants (respondents in this endorsement) did not abandon any relief sought in their notice of appeal and factum, including payment for storage/rental costs intertwined with repairs.

The court confirmed the appellants' possessory lien over the aircraft, encompassing both repair and storage/rental costs, and remitted these intertwined issues to the Superior Court for determination.

This is a costs endorsement following a successful appeal.

The Court of Appeal had previously allowed the appeal, set aside the application judge’s order, and remitted certain issues for trial, declaring that the appellants had a possessory lien.

The appellants, having prevailed on the appeal and related motions, were awarded all-inclusive costs for the appeal, a panel motion, three pre-appeal motions, and the original application, totaling $143,977.79.

The Applicant sought an order for the partition and sale of the matrimonial home and distribution of its contents.

The Respondent opposed the sale and filed a cross-motion to amend his pleadings to include a claim for exclusive possession of the matrimonial home.

The court affirmed the Applicant's prima facie right to sale, finding that the Respondent failed to establish a prima facie case for a competing interest, such as exclusive possession, under the Family Law Act.

The Respondent's arguments regarding his health, financial vulnerability, and the stability of an adult child were not persuasive enough to defeat the sale.

The court ordered the sale of the matrimonial home and allowed the Respondent to amend his pleadings, but with costs payable to the Applicant.

The appellants appealed an order vacating their possessory lien on an aircraft under the Repair and Storage Liens Act.

The application judge had erred by vacating the lien without fully determining whether the repair work was authorized and if any amounts were owing, despite acknowledging that litigation on these issues was possible.

The Court of Appeal found that the application judge failed to make necessary findings and improperly applied the RSLA.

The appeal was allowed, the original order set aside, and the appellants' possessory lien was declared to exist until further court order, with the issues of authorization and amounts owing remitted to trial.

The applicant sought to strike the respondent's answer, prevent further court orders, obtain directions regarding discovery evidence use between related civil and family proceedings, and appoint an expert to value the respondent's corporate shares and income.

The respondent cross-moved to add family members as parties and compel their disclosure/questioning, and for general disclosure from the applicant.

The court dismissed the applicant's requests to strike pleadings and prevent further orders, and the respondent's requests to add parties and compel non-party disclosure.

The court granted, by consent, the use of civil discovery evidence in the family case, ordered an expert income report for the respondent, and ordered specific financial disclosure from the applicant.

The moving parties brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding parties.

The defendant, a real estate lawyer, brought a motion to remove the plaintiff's counsel of record.

The defendant argued that he had previously consulted the plaintiff's counsel regarding the very mortgage transactions at issue in the litigation, imparting confidential information.

Furthermore, the defendant argued that the plaintiff's counsel would likely be a necessary witness at trial regarding the plaintiff's efforts to mitigate damages in a related mortgage enforcement action.

The court applied the MacDonald Estate test for conflicts of interest and the Essa factors for lawyers as witnesses.

The court found that the plaintiff's counsel had a disqualifying conflict of interest and was also likely to be a witness at trial.

The motion to remove counsel was granted.

Following a successful appeal that set aside a summary judgment and remitted the matter for trial, the Court of Appeal received written submissions on the costs of the summary judgment motion.

The appellant sought $100,000 on a partial indemnity basis, while the respondent argued for a lower amount due to alleged duplicative steps.

The Court fixed the costs of the summary judgment motion payable to the appellant at $80,000 inclusive of disbursements and HST.

Jack Ganz Consulting Ltd. (JGC) appealed a summary judgment dismissing its breach of contract and dependent contractor claims against Recipe Unlimited Corporation (Cara).

JGC alleged Cara breached a 2006 consulting agreement, including a stock option provision, and failed to provide reasonable notice upon termination.

The motion judge found JGC waived an auto-renewal clause, terminating the agreement in 2010, and that no other written agreement replaced it.

The Court of Appeal found the motion judge erred in finding a unilateral waiver for no consideration and that there was a genuine issue for trial regarding the terms governing the parties' relationship after 2008, given the uncertainty in the record and the parties' conduct.

The appeal was allowed, the summary judgment set aside, and the matter remitted for trial.

Following the dismissal of the plaintiff's $27 million breach of contract claim on summary judgment, the successful defendant sought costs on a substantial indemnity basis.

The defendant relied on the plaintiff's conduct and a pre-litigation offer to settle for $70,000.

The court found the plaintiff's conduct was not reprehensible and held that Rule 49 cost consequences do not apply to pre-litigation offers.

The court awarded the defendant partial indemnity costs fixed at $180,000, applying a reduction to the defendant's claimed hours and rates for proportionality.

The appellant registered a claim for lien against the respondents' property.

The motion judge discharged the lien under s. 47 of the Construction Lien Act, finding it was registered out of time because the contract work was completed and fully invoiced 11 months prior.

On appeal, the appellant argued the motion judge erred in relying on the invoice and applying the wrong standard.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual conclusions and holding that the correct underlying test was applied.

The appellant, Gerard Lee, former CEO of Lalu Canada Inc., appealed the dismissal of his application for advance funding of legal costs to defend a fraud action.

The application judge denied funding, finding a strong prima facie case of fraud against Lee regarding "acquisition fees" he had received.

The Court of Appeal dismissed the appeal, upholding the application judge's interpretation of the consulting agreement and assessment of evidence regarding concealment.

The court also affirmed the application judge's application of the "strong prima facie case" test for denying advance funding, finding it commensurate with the stringent standard required.

The defendant, Recipe Unlimited Corporation (Cara), brought a motion for summary judgment to dismiss the plaintiff, Jack Ganz Consulting Ltd.'s (JGC), claims for breach of contract and common law reasonable notice.

The court found that JGC had waived the automatic renewal clause of its consulting agreement with Cara, causing the agreement to terminate.

The court also determined that JGC was not a dependent contractor, primarily due to its admission of no financial dependency on Cara and the significant other business interests of its principal, Jack Ganz.

Consequently, JGC's claims for breach of contract and common law reasonable notice were dismissed.

A minor claim regarding a projector and inventory was also dismissed due to lack of evidence.

The appellants appealed from a motion judge's order dismissing their motion for a declaration that they were entitled to indemnification for legal fees and expenses under a consulting agreement.

The Court of Appeal determined that the order was interlocutory rather than final because it did not address the substantive merits of whether the consulting agreement required advance payment of legal fees or whether there had been a breach.

The court quashed the appeal and noted that the appellants could seek leave to appeal to the Divisional Court or bring a separate application for interpretation of the agreement.

The defendant property owner brought a motion under s. 47 of the Construction Lien Act to discharge a claim for lien registered by the plaintiff adjacent landowner.

The court found that while there were triable issues regarding whether the plaintiff was a 'contractor' and the previous owner an 'owner' under the Act, the lien was not preserved within the strict 45-day time limit under s. 31.

The evidence showed the contract work was completed more than a year before the lien was registered.

The motion was granted and the lien discharged.

The applicant, a former CEO, brought a motion to remove the respondents' counsel of record, arguing that the lawyers were likely to be called as witnesses regarding his termination and share valuation, and that they had a conflict of interest from previously setting up a trust structure for him.

The court dismissed the motion, finding that the lawyers were acting for the corporation, not the applicant personally, and that the only genuine issue in dispute was the valuation of shares, making the lawyers' evidence regarding alleged oppression irrelevant.

The plaintiff consultant brought a motion to enforce a contractual indemnification provision for the advance payment of legal fees by the defendant companies.

The motion was brought before the close of pleadings.

The court found that the corporate indemnity provisions of the CBCA and OBCA did not apply because the consultant was a corporation, not an individual officer or director.

However, the court dismissed the motion, concluding that the relief sought effectively amounted to a partial summary judgment or a mandatory injunction, and the plaintiff had not complied with the requirements for either.