Patrick Snelling

Following a decision on two related oppression applications where the court found only one act of oppression by the respondent and declined to order a receiver, the parties submitted written costs submissions.

The court determined the respondents were more successful overall.

The court ordered costs of $50,000 payable to the individual respondent and $50,000 to the corporate respondents.

The applicant, a minority shareholder and former director, brought applications alleging oppression and constructive dismissal against the majority shareholder and the respondent corporations.

The court found the constructive dismissal claim was statute-barred and lacked merit, as the change in compensation method did not constitute a substantial breach of an essential term.

While most oppression claims regarding shareholder loans and business decisions were dismissed under the business judgment rule, the court found the majority shareholder unfairly disregarded the applicant's rights by failing to provide timely access to financial information.

The court declined to appoint a receiver-manager, instead ordering the sale of the corporation's primary real estate asset and an accounting of the proceeds.

The applicant brought a motion seeking consolidation of two oppression remedy applications (2019 and 2023), an order compelling respondents to comply with court orders for audited financial statements, reimbursement of his deposit, a timetable for remaining steps, and written submissions on oppression and receiver appointment.

The court ordered the applications be heard together rather than consolidated, to preserve the respondents' limitation period defences.

The court compelled the respondents to provide answers to the applicant's queries regarding anomalies in the draft financial statements within 30 days and ordered completion of audited financial statements within specified timeframes.

The applicant was ordered to confirm his shareholder loan account within 30 days to allow completion of the audit.

The applicants sought production of solicitor-client privileged records from the deceased's lawyer and leave to examine the lawyer regarding legal services provided to the deceased in May 2021.

The respondent claimed solicitor-client privilege survived the deceased's death and was not subject to the wills exception.

The court found that the wills exception applied because undue influence and lack of capacity were central issues, the solicitor's retainer occurred during a critical window of estate planning, and the timing was closely related to suspicious testamentary documents executed while the deceased was hospitalized.

The court ordered production of the lawyer's file and permitted examination of the lawyer.

The plaintiffs brought a motion at the outset of a jury trial for leave to adduce expert evidence from three experts whose reports were served late.

The plaintiffs argued the delay was due to inadvertence and that the defendant would not be prejudiced.

The court dismissed the motion, finding that inadvertence did not constitute a reasonable explanation for the delay under the amended Rule 53.08.

The court also noted that granting leave would cause undue delay by necessitating an adjournment of the trial to allow the defendant to obtain responding reports.

The plaintiff sought leave to amend her Statement of Claim to particularize allegations of sexual assault and to plead similar fact evidence against a former pediatric doctor.

The court granted leave for the particularization of the assault but dismissed the motion to plead similar facts.

The dismissal was based on Section 36(3) of the Regulated Health Professions Act, 1991, which prohibits the admissibility of records from disciplinary proceedings in civil actions, and the principle that pleadings should contain material facts, not evidence.

The court also addressed the plaintiff's use of initials and awarded costs to the defendants.

The applicant, a former director and minority shareholder, brought a motion seeking an order for the respondent corporation BCE Realty Ltd. to produce an audited financial statement for 2022, alleging financial impropriety and oppression.

The court found the applicant had standing as a former director under the Ontario Business Corporations Act's oppression remedy provisions, despite not being a direct shareholder.

The court granted the order for the audited financial statement but required the applicant to pay the cost in advance, with the right to seek reimbursement at the end of the litigation.

This decision addresses a preliminary issue in an application for an oppression remedy: whether Neu Solutions Inc. (NSI) remained a 50% shareholder of eSolutions MN Inc. after July 2016.

The respondents argued that NSI had relinquished its shares through an agreement.

The court applied contract law principles, including the requirement for a meeting of the minds and certainty of essential terms, and found no enforceable agreement to transfer shares.

The court also noted the lack of compliance with the share transfer restrictions in eSolutions' Articles of Incorporation.

Consequently, the court ruled that NSI remained a 50% shareholder of eSolutions.

The applicant sought $1,449.88 for an occupational therapy functional assessment following a motor vehicle accident.

The insurer denied the treatment plan.

The Tribunal found that while the applicant suffered from ongoing headaches and post-concussive symptoms, the medical evidence indicated he remained independent in his activities of daily living.

The applicant failed to produce complete medical records, leading to gaps in the evidence.

The Tribunal concluded the applicant did not meet his onus to establish that the proposed assessment was reasonable and necessary, and dismissed the application.

The defendants (Filips) brought a motion to set aside a default judgment obtained by the plaintiffs (Ross and Campbell) for $617,209.59.

The Filips argued that the plaintiffs failed to make full and frank disclosure on damages in their ex parte motion for default judgment and that their previous counsel's significant personal and professional issues constituted a plausible excuse for their default.

The court found that the plaintiffs indeed failed to disclose material facts (a lower appraisal report) on damages, which alone was sufficient to set aside the judgment under Rule 39.01(6).

Additionally, applying the five-factor test from Mountain View Farms Ltd. v. McQueen, the court found the Filips' explanation for default plausible, an arguable defence on the merits (both liability and damages), and that setting aside the judgment served the interests of justice, despite the Filips' prior fraudulent conveyance attempt.

The default judgment was set aside, and a schedule for the action was ordered.

The plaintiffs sought costs for a motion to strike the defendants' affidavits, which resulted in mixed success as the court instead provided directions for examinations to proceed by video conference due to the COVID-19 pandemic.

The court declined to award costs to either party for that motion, noting both sides acted in good faith in a novel situation.

The plaintiffs were awarded $300 in costs for a separate motion that the defendants had abandoned.

The plaintiffs brought a motion to strike the defendants' affidavits and motion record filed in support of a motion to set aside a default judgment.

The plaintiffs argued the affidavits should be struck because the defendants refused to attend in-person cross-examinations, citing COVID-19 health concerns.

The plaintiffs also argued the motion should be struck because it was brought by counsel retained by the former lawyer's insurer.

The court dismissed the plaintiffs' motion, finding the elderly defendants had a legitimate health concern justifying video conference examinations, and that counsel had standing to act on their behalf.

The applicant sought statutory accident benefits following a motor vehicle accident, including income replacement benefits (IRBs) and the cost of a neuropsychological assessment.

The respondent insurer had terminated IRBs, alleging the applicant failed to provide requested income information, refused to answer questions at an examination under oath (EUO), and made a material misrepresentation about his employment status.

The Tribunal found that the applicant suffered a substantial inability to engage in the essential tasks of his pre-accident employment as a web designer due to post-traumatic headaches and ocular motor dysfunction.

However, the Tribunal also held that the respondent was entitled to withhold IRBs from June 15, 2016, onwards because the applicant failed to provide reasonably requested income information and refused to answer relevant questions at his EUO without a reasonable excuse.

The respondent's claim for repayment based on material misrepresentation was dismissed.

The Tribunal approved the treatment plan for the neuropsychological assessment and awarded interest on a limited period of overdue IRBs, but denied a special award.

The plaintiff, an insurance broker, was summarily dismissed by his employer.

He sued for wrongful dismissal, special damages, and compensation for vested business.

He also sued the principal broker for conspiracy, intimidation, and slander.

The employer counterclaimed for breach of contract and fiduciary duty due to the plaintiff soliciting clients.

The court found the dismissal was without just cause, awarded damages in lieu of notice and for vested business (reduced by the plaintiff's breach of non-competition and fiduciary duty).

The claims for special damages, conspiracy, intimidation, and slander against the principal broker were dismissed.

The applicant, a youth worker injured during an incident with a young person in care, sought access to the pre-sentence report of the young person who was subsequently charged with assault.

The applicant was pursuing a negligence action against the youth residential services facility.

The court granted limited access to the pre-sentence report under section 119(1)(s) of the Youth Criminal Justice Act, balancing the applicant's valid interest in the information for civil litigation purposes against the strong privacy protections afforded to young persons under the Act.

Access was restricted to exclude information derived from child protection files and mental health assessments, with strict confidentiality conditions imposed.

This endorsement from a Trial Management Conference outlines the procedural orders made to schedule the trial and subsequent pre-trial steps.

The trial is scheduled for October 16, 2017, for six to eight weeks.

Orders include deadlines for circulating a draft Statement of Defence, cross-examination of a witness, a further mediation, and the delivery of expert reports on solicitor negligence and damages by both the plaintiff and defendants.

A further Trial Management Conference is adjourned to April 10, 2017, to review the status.

The plaintiff, Beate Nkunda-Batware, was awarded $418,330 by a jury in a motor vehicle personal injury action.

The defendants brought a threshold motion, arguing that the plaintiff's injuries did not meet the statutory exceptions under subsections 267.5(3) and (5) of the Insurance Act, requiring a "permanent, serious impairment of an important, physical, mental or psychological function." The court found that the plaintiff, a "thin skull" individual with a pre-existing predisposition to depression, suffered whiplash injuries that evolved into a chronic pain syndrome directly caused by the accident.

The court preferred the plaintiff's medical experts and concluded that the plaintiff's impairments were permanent and serious, substantially interfering with her employment and daily functioning.

The defendants' threshold motion was dismissed.

The defendants brought a motion for further security for costs in two related actions involving corporate and foreign plaintiffs alleging ownership of certain inventions.

The court held that entitlement to security for costs had already been determined in an earlier order and that the only remaining issues were the appropriate form and quantum of additional security.

The plaintiffs proposed an undertaking rather than posting funds, but the court rejected this form of security due to the risk that an Ontario costs award might not be enforceable in Oregon because of potential sovereign immunity.

Assessing the anticipated costs of a lengthy and complex trial, the court fixed additional security at $585,000.

The plaintiffs were ordered to post the security by irrevocable letter of credit or by payment into court.

The plaintiffs brought a motion to amend their statement of claim to add allegations that the defendants’ litigation conduct, including alleged delay in producing privileged documents, constituted a breach of fiduciary duty and warranted punitive damages.

The court applied Rule 26.01 of the Rules of Civil Procedure and the test for allowing amendments, including whether the proposed claims were tenable at law.

The court held that no fiduciary duty exists between opposing parties during the conduct of litigation in the adversarial system and that litigation conduct alone cannot constitute an independent actionable wrong supporting punitive damages.

Alleged delay in document production is addressed through costs, not substantive claims.

The proposed amendments were therefore not legally tenable and were refused, though certain limited trial questions concerning knowledge of competing intellectual property claims were permitted.

The moving parties sought partial indemnity costs of $10,026.89 following an appeal.

The responding parties argued that because the moving parties' counsel charged partial indemnity rates, the costs award should be reduced to 60% of actual costs.

The court rejected this argument, applying the principle from Mantella that partial indemnity costs are determined by the factors in the Rules of Civil Procedure, not by a mathematical discount of actual fees, provided the award does not exceed actual costs.

The court fixed the moving parties' partial indemnity costs at $9,800.