Paul D. Stern

The applicant, founder of a carpentry business, sought an oppression remedy against the respondent, the younger active manager and 49% shareholder.

The parties had entered into a unanimous shareholders' agreement to transition the business to the respondent while completing existing projects.

The respondent breached the agreement and his fiduciary duties by usurping the company's employees for his new competing business, failing to maintain proper financial records, and causing the original company to fail.

The court found the respondent liable for oppression and ordered him and his new company to jointly and severally disgorge $2,248,328 in profits.

The moving party brought a motion under s. 21(5) of the Courts of Justice Act to set aside a decision of a single judge of the Divisional Court.

The single judge had quashed the moving party's appeal from a pre-hearing decision of the Capital Markets Tribunal on the basis that the Tribunal's decision was interlocutory, not final.

The Divisional Court panel dismissed the motion, finding that the motion judge applied the correct law and made no error in concluding that the Tribunal's decision regarding the use of criminal disclosure was not a final decision.

The appellants appealed a decision dismissing their appeal of a solicitor's account assessment.

They argued the appeal judge denied them procedural fairness by refusing an adjournment, muting one of the appellants during a virtual hearing, and proceeding without full transcripts.

The Divisional Court dismissed the appeal, finding the judge properly exercised his discretion to refuse the adjournment and to control the court's process by muting a disruptive litigant.

The court also upheld the assessment officer's findings and the award of substantial indemnity costs against the appellants.

The Ontario Securities Commission brought a motion to quash the appellant's appeal of a Capital Markets Tribunal decision on the basis of prematurity.

The Tribunal had previously ruled that the Wagg process did not apply to documents the OSC obtained through its own investigation and intended to use in a merits hearing.

The Divisional Court granted the motion to quash, finding that the Tribunal's evidentiary ruling was an interlocutory decision, not a final decision, and therefore no appeal was permitted under s. 10(1) of the Securities Act.

The appellants appealed an assessment officer's decision ordering them to pay $41,541.79 in legal fees to their former lawyers.

The appellants, who were self-represented, argued that the lawyers did not justify their fees and raised various procedural and ethical complaints.

The Superior Court of Justice dismissed the appeal, finding no error in principle, misapprehension of evidence, or palpable and overriding error in the assessment officer's decision, and noted the appellants' inconsistent arguments and disruptive behaviour during the proceedings.

The Crown brought an application to unseal documents held by an accounting firm (PWC) that were subject to a production order in a fraud investigation.

The respondent claimed blanket solicitor-client and litigation privilege over the entire PWC file, arguing the accountants were retained by his law firm to assist with a CRA voluntary disclosure application.

The court rejected the blanket privilege claim, finding that the accountants were primarily performing independent accounting functions (preparing tax returns) rather than acting solely as a conduit for legal advice.

The court ordered a document-by-document review by appointed referees to identify any specific privileged communications.

The defendants moved to set aside a noting of default and default judgment, which had been granted after years of "bad litigation behaviour" and failure to comply with court orders, including payment of costs.

The original claim involved the defendant Rose Venneri Donatelli misrepresenting herself as a qualified psychologist with a Ph.D. The court applied the Healey factors for setting aside default judgments, finding the default intentional, the motion untimely (2.5 years after judgment), and no arguable defense on the merits.

The court emphasized that allowing the defendants to continue would be an affront to the integrity of the administration of justice, given their repeated non-compliance and the fact that the underlying judgment had been upheld through multiple appeals.

The motion was denied.

The appellant, Matthew Woodham, appealed his conviction for assault causing bodily harm.

The appeal court found that the trial judge erred in assessing identification evidence, misstated and misapplied the test from R. v. W.(D.), and made palpable and overriding errors in assessing witness credibility by misapprehending evidence, engaging in speculation, and drawing unsupported inferences.

These errors were fundamental to the rejection of the defence's testimony and played a significant role in the conviction.

The appeal was allowed, the conviction quashed, and a new trial ordered.

An employee of the Ontario Psychological Association appealed a motion judge's decision striking out paragraphs of her counterclaim that sought contribution and indemnity against six named defendants who were officers and/or directors of the Association.

The Court of Appeal upheld the motion judge's decision, finding that the six individuals owed no duty of care to the employee.

The court rejected the appellant's arguments that the individuals failed to supervise her properly and that they owed a duty to the Association that, if breached, would result in liability for the appellant's conversion of the Association's money.

Leave to amend was denied.

The Crown alleged that the defendant, a long-serving office administrator of the Ontario Psychological Association, embezzled a significant amount of money between 2003 and 2013 through various methods including cheques payable to herself, cash withdrawals, debit card purchases, and electronic transfers.

The defendant contended that the organization operated as a family-run business with intermingled personal and business expenses that were accounted for and approved by executive directors and auditors.

The court found that while the volume of undocumented cash transfers appeared suspicious, the investigation was conducted unprofessionally and incompletely, and the defendant's evidence, combined with the inadequate investigation, raised a reasonable doubt.

The defendant was acquitted.

The Ontario Psychological Association (OPA) sued its former employee, Charlotte Mardonet, for misappropriating over $1.6 million.

Mardonet counterclaimed against the OPA and its individual officers and directors, seeking contribution and indemnity based on their alleged failure to supervise her.

The individual officers and directors moved to strike these paragraphs of the counterclaim, arguing they disclosed no reasonable cause of action.

The court granted the motion, finding it plain and obvious that officers and directors owe no duty of care or fiduciary duty to an employee to protect them from their own wrongdoing.

The defendant applied for production of third-party records held by the Ontario Psychological Association, specifically emails and accounting records (AccPac) for the period January 10, 2003 to June 13, 2013.

The defendant was charged with theft and fraud related to alleged diversion of organizational funds over a 10.5-year period.

The court applied the O'Connor test for third-party record production and determined that the requested documents were likely relevant to the proceedings.

The court found that emails and accounting records could assist in establishing the chronology and narrative of events central to the allegations.

The court ordered the third party to review the records for privilege before production to the court.

The appellants appealed a motion judge's order quashing notices of examination served on the responding defendants in relation to a Mareva injunction motion.

The responding defendants moved to quash the appeal, arguing the order was interlocutory.

The Court of Appeal granted the motion to quash, finding that the order was interlocutory because it did not terminate the underlying action or resolve a substantive claim or defence.

The appeal lies to the Divisional Court.

The defendants sought leave to appeal an order dismissing their motion to seal documents and transcripts related to a Mareva injunction.

The defendants argued that the documents should be sealed because one of the defendants was facing criminal fraud charges.

The motion judge had ruled that sealing was unnecessary because the defendants were protected by the privilege against self-incrimination and the implied undertaking rule.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's order.

On a motion by auditor defendants to quash notices of examination served by a co-defendant before a pending Mareva injunction motion, the court held the proposed examinations were not shown to be properly relevant to the issues on the injunction.

The notices sought sweeping document production and testimony extending back to 2003, despite the injunction motion focusing on whether the co-defendant had misappropriated funds and seeking no relief against the moving parties.

The court found the notices functioned as premature discovery before the close of pleadings and amounted to a fishing expedition.

The notices of examination were quashed.

Following the dismissal of the defendants' motions for confidentiality orders and the plaintiff's cross-motion for a confidentiality order regarding materials for a pending Mareva injunction, the parties made written costs submissions.

The plaintiff sought $15,000, while the defendants argued for no costs due to the novelty of the legal issues.

The court ordered that costs of the motions be fixed at $5,000 in the cause of the Mareva injunction motion, finding this fair given the exigencies of the proceeding.

The court also awarded the defendants $500 each for the costs of their costs submissions, payable by the plaintiff.

In a civil fraud action accompanied by a pending Mareva injunction motion and related criminal proceedings, certain defendants sought confidentiality or sealing orders over their proposed affidavit and cross-examination evidence on the basis of self-incrimination concerns.

The court held that, as statutorily compellable witnesses in the civil proceeding, they were already protected by the principle against self-incrimination and no further protective order was required.

The plaintiff's cross-motion for a confidentiality order to permit filing of redacted motion materials was also dismissed because the open court principle was not displaced under the sealing-order test.

The court further held that disclosure of personal information in the motion record fell within the PIPEDA exception for compliance with rules of court relating to the production of records.

The appellant appealed a sentence imposed by the Superior Court of Justice.

The Court of Appeal for Ontario issued an order on consent in the form of a draft order.

The plaintiffs brought a motion for leave to appeal an order that set aside a judgment obtained after the defendants failed to attend trial.

The plaintiffs argued there was a conflicting decision and good reason to doubt the correctness of the order under Rule 62.02(4) of the Rules of Civil Procedure.

The Divisional Court dismissed the motion, finding that the motion judge properly exercised his discretion under Rule 52.01(3) to set aside the judgment on terms, and there was no conflicting decision or reason to doubt the order's correctness.

The applicant sought judicial review of a Law Society Appeal Panel decision that overturned a costs award in her favour.

The applicant had previously admitted to destroying evidence relevant to a criminal proceeding, prompting a good character hearing for her admission to the Law Society.

The Hearing Panel admitted her and awarded her costs, finding the hearing unwarranted.

The Appeal Panel overturned the costs award, emphasizing the Law Society's public interest mandate to hold hearings when serious misconduct raises character issues.

The Divisional Court dismissed the application for judicial review, finding the Appeal Panel's decision reasonable.