Paul Fruitman

The plaintiffs, Avante Automobile (2017) Corporation and Francesco Serpa, sought damages from BMW Canada Inc. for breach of statutory, contractual, and common law duties in relation to the purchase and operation of a BMW dealership.

The court found BMW Canada liable for failing to properly document an extension to complete required renovations and for not following the termination provisions of the Retailer Agreement.

However, the court preferred the defendant’s evidence on valuation and found no net recoverable damages.

The action was dismissed, subject to costs.

The applicant, Minotar Holdings Inc., sought a declaration that certain sections of the Greenbelt Statute Law Amendment Act, 2023 and the Greenbelt Act, 2005 violated section 96 of the Constitution Act, 1867 by legislating a judicial outcome and depriving the Superior Court of its jurisdiction.

The court found that the amendments did not violate the Constitution, as the legislature has the authority to extinguish causes of action and define land use boundaries, provided it uses clear and explicit statutory language.

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

The applicants, Melissa Taurasi and Nelda Taurasi, sought a declaration that a global charge registered by The Toronto-Dominion Bank (TD) on their properties was void, alleging duress, undue influence, lack of consideration, and absence of independent legal advice.

The TD Charge was part of a settlement agreement following a $37 million cheque kiting fraud perpetrated by StateView Homes, a company owned by the applicants' husbands.

The court dismissed the application, finding no undue influence, noting that the applicants had legal representation and received a benefit from the settlement, and that their current position contradicted their separate negligence claims against their former counsel.

The defendant Westreich brought a Rule 21 motion to strike the plaintiff's Statement of Claim against him, arguing it disclosed no reasonable cause of action.

The litigation involved a failed partnership for a land development project, with allegations that Westreich assisted other defendants in misappropriating the project.

The court dismissed the motion, finding that the plaintiff pleaded sufficient material facts to support claims of inducing breach of contract, knowing assistance, knowing receipt, and unlawful conduct conspiracy.

The court awarded partial indemnity costs to the plaintiff, reducing the requested amount to align with the reasonable expectations of the unsuccessful party.

The applicant, an equal shareholder and medical director of fertility clinics, sought interim relief in a corporate oppression claim against her estranged husband, the sole director of most corporate entities.

She alleged mismanagement, diversion of funds, and exclusion from decision-making.

The court applied the "serious issue" test for interim injunctions, finding a serious issue and irreparable harm to the business and her professional duties if the status quo continued.

The balance of convenience favored the applicant.

The court ordered the applicant to be appointed as a co-director of all respondent corporations with the individual respondent, and restrained the individual respondent from interfering in patient care or medical processes, aiming to prevent deadlock and preserve the business while acknowledging the underlying matrimonial dispute.

The Applicants, Roof Tile Management Group Inc. and Roof Tile Management Inc., brought an application seeking declaratory relief and other non-monetary orders, along with a motion to amend their Notice of Application to seek a reference for damages.

The Respondents, Henry Forget and 2149220 Ontario Inc., opposed both the amendment and the application as the proper form of proceeding, arguing that the case involved highly contested facts requiring an action.

The court dismissed the Applicants' motion to amend, finding it would improperly bifurcate the proceeding and cause procedural injustice.

The court also converted the application into an action under Rule 38.10, determining that an application was not the appropriate forum to resolve the significant factual disputes concerning liability and damages.

The appellants appealed an arbitrator's costs award under section 45 of the Arbitration Act, 1991.

The arbitrator had awarded the respondent its full legal expenses, including fees paid to its corporate counsel for 'litigation support'.

The court first determined that leave to appeal an arbitral costs award is not required under section 133(b) of the Courts of Justice Act, as that provision applies only to courts.

On the merits, the court found that the arbitrator did not err in principle or act plainly wrong in awarding full indemnity costs, noting that the Arbitration Act does not bind arbitrators to the scales of costs in the Rules of Civil Procedure.

The court also upheld the arbitrator's decision to allow recovery of the litigation support fees.

The appeal was dismissed.

The applicant sought to appoint an independent accountant to resolve a dispute over a working capital calculation under a share purchase agreement.

The respondents argued the request was out of time and that substantive relief could not be granted at a case conference without a full evidentiary record.

The court granted the application, holding that the respondents had implicitly agreed to extend the timeline and that granting substantive relief at a case conference was a proportionate procedure given the severe delays in the civil justice system.

The plaintiffs, Dentalcorp Health Services Ltd. and related entities, sought an interim, interlocutory, and permanent injunction against the defendants, Dr. Arsalan Poorsina and his professional corporations, for alleged breaches of non-competition and non-solicitation agreements.

These agreements stemmed from the plaintiffs' 2016 purchase of five dental clinics from Dr. Poorsina.

The court found that the plaintiffs had a strong prima facie case that the restrictive covenants were breached and were enforceable, given they were negotiated by sophisticated parties in the context of a business sale.

However, the motion for injunction was dismissed because the plaintiffs failed to demonstrate irreparable harm that could not be compensated by damages, and the balance of convenience favoured the defendants, particularly due to the plaintiffs' significant delay in seeking injunctive relief and the fact that the restrictive covenant's term was nearing its end.

The Joseph Lebovic Charitable Foundation (appellant) appealed the dismissal of its bankruptcy application against the Jewish Foundation of Greater Toronto (respondent).

The appellant had donated over $19 million to a Donor Advised Fund (DAF) with the respondent, which it considered an irrevocable gift.

After the founder's death, his executor sought to direct the remaining DAF funds to specific charities, which the respondent did not follow.

The appellant initiated bankruptcy proceedings, alleging the respondent ceased to meet liabilities.

The motion judge dismissed the application, finding no debt, no act of bankruptcy, and no special circumstances for a single-creditor application, and that the application was an abuse of process.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error of fact or errors of law, and affirmed the elevated costs award due to the abuse of process.

The plaintiff, StorageVault Canada Inc., brought a motion for the issuance of certificates of pending litigation (CPLs) against the defendants concerning seven parcels of land.

StorageVault alleged a binding agreement for the purchase of these properties, seeking specific performance.

The defendants opposed, arguing no binding agreement existed and that specific performance was not an appropriate remedy.

The court dismissed the motion, finding no triable issue regarding a breach of contract or the availability of specific performance, as the draft agreements were non-binding, the alleged agreement was not capable of performance due to third-party approvals and rights of first refusal, and the properties were not unique, making damages an adequate remedy.

The equities were found to favour the defendants.

The plaintiff brought a motion seeking leave for an additional 7 hours of discovery time for the defendant's representative in a wrongful termination action.

The plaintiff had already conducted 5.5 hours of discovery.

The defendant offered an additional 3 hours, while the plaintiff sought 7.

The court granted the plaintiff an additional 4.5 hours, resulting in a total of 6 additional hours of discovery.

The decision considered the defendant's imprecise pleading, the complexity of the case involving discrimination claims and examination of the defendant's conduct patterns, and the amount at issue.

The court declined to award costs to either party, noting the plaintiff's partial success but also the lack of negotiation efforts for the motion itself.

The Plaintiff, Jennifer Black, brought a motion for an interlocutory injunction to compel the Defendants, Mandeville Private Client Inc. and Mandeville Holding Inc., to allow her to continue providing investment management services to the Majestic Access Funds and to prevent interference with her economic relationship with Majestic Asset Management LLC.

The Defendants brought a cross-motion for an injunction to prohibit Black from soliciting Mandeville clients, citing a non-solicitation agreement.

The court dismissed Black's motion, finding she had no contractual right to transfer the funds or become their sub-advisor, and that Majestic was not a party to the litigation.

The court granted Mandeville's cross-motion, determining that Black's communications with clients prior to her resignation constituted solicitation in breach of the enforceable non-solicitation agreement, which was part of a business sale.

The plaintiff brought a motion to enforce a settlement agreement reached with the defendants regarding employment and insurance coverage actions.

The parties agreed on the settlement terms, including a $300,000 payment, but disagreed on the wording of the release.

The defendants sought a broad release that could potentially bar an ongoing oppression action, while the plaintiff sought to explicitly carve out the oppression action.

The court rejected both proposed releases, holding that the release must reflect the settlement agreement, and ordered a simple release limited to the claims made in the settled actions.

The plaintiff, Dymon Storage Corporation, brought a motion for an interlocutory injunction to restrain the defendants, including its former Chief Planner and its former architects, from working for a competitor and from misusing confidential information.

The defendant Edwards brought a cross-motion to strike or stay the claim against her in favour of arbitration.

The court dismissed the non-competition injunction, finding Edwards' non-competition covenant unreasonably broad and unenforceable, and finding no evidence of an oral non-competition agreement with the architect defendants.

The court partially granted the confidentiality injunction, ordering the architect defendants to surrender documents relating to an epoxy floor system and certain architectural drawings, but otherwise found the plaintiff failed to distinguish between confidential information and general know-how.

The court stayed the claim against Edwards in favour of arbitration pursuant to her employment agreement.

The respondent moved to quash an appeal of an arbitral costs award on the basis that the appellants failed to seek leave to appeal under s. 133(b) of the Courts of Justice Act.

The appellants argued that the Arbitration Act and their arbitration agreement provided broad appeal rights without the need for leave.

The court dismissed the motion to quash, finding that the appeal was not manifestly devoid of merit and that the requirement for leave in commercial arbitrations with broad appeal agreements remains an open question to be determined by the judge hearing the appeal.

The plaintiff foundation, established by a deceased donor, brought a motion for an interlocutory injunction or an order under Rule 45.02 to prevent the defendant charitable foundation from making distributions from a donor-advised fund.

The plaintiff sought to compel the defendant to make distributions according to the plaintiff's instructions.

The court dismissed the motion, finding no serious issue to be tried because a valid charitable gift requires the donor to divest all power and control over the property to the donee.

The plaintiff conceded it could not compel specific donations, and failed to establish irreparable harm or that the balance of convenience favoured an injunction.

This endorsement addresses the issue of costs following a partially successful motion by the defendants to strike the plaintiffs' claims.

The defendants sought to dismiss the entire action or strike parts of the Fresh As Amended Statement of Claim.

The court previously struck the claims of three subsidiary plaintiffs entirely and struck a specific claim of the main plaintiff with leave to amend, while dismissing the defendants' primary request to dismiss the entire action.

The court found the outcome split and, applying principles of costs, awarded the defendants 50% of their partial indemnity costs, fixed at $14,300, to reflect their partial success in narrowing the issues and removing parties.

The Jewish Foundation of Greater Toronto (Foundation) moved to dismiss or stay a bankruptcy application brought by The Joseph Lebovic Charitable Foundation (JLCF).

JLCF alleged the Foundation was indebted to it for over $15 million from a Donor Advised Fund (DAF) and had failed to meet its liabilities.

The court found no debtor/creditor relationship, as the funds were irrevocable gifts, not debts.

It also found no evidence the Foundation was unable to pay its debts, noting its excellent financial health.

The court determined that no act of bankruptcy occurred and that the JLCF's application, brought as a single creditor, lacked special circumstances.

The court further found the bankruptcy application to be an abuse of process, brought for the collateral purpose of pressuring the Foundation to distribute funds, rather than for a legitimate bankruptcy purpose.

The Foundation's motion to dismiss was granted, and the bankruptcy application was dismissed.

The plaintiffs were successful in obtaining an interlocutory injunction enforcing restrictive covenants related to the purchase of a dental practice.

In this costs decision, the plaintiffs sought partial or substantial indemnity costs.

The respondent argued costs should be deferred to the arbitrator who would hear the underlying damages claim.

The court held it was appropriate to determine costs now, as the injunction motion effectively determined the respondent's ability to practice dentistry and the court had already reviewed the voluminous materials.

The court rejected the request for substantial indemnity costs and fixed costs at $60,000 inclusive of disbursements and HST.