Paull N. Leamen

Investors sued a chartered accountant and his consulting corporation alleging breach of fiduciary duty and negligence after losing money in complex domestic and offshore investment structures connected to an investment club and related entities.

The court found the advisor promoted the investments, failed to disclose commissions, and reassured the investors about the legitimacy of the structure despite serious regulatory concerns and structural deficiencies in the investment scheme.

The relationship involved trust, reliance, and vulnerability sufficient to create a fiduciary duty.

The advisor breached that duty by failing to disclose conflicts, failing to warn about regulatory issues, and misrepresenting the diligence performed.

Liability was imposed for the plaintiffs’ investment in the domestic issuer but not for later investments made after regulatory warnings, which the court held the plaintiffs unreasonably failed to mitigate.

The plaintiffs moved to certify a class proceeding arising from a pension surplus dispute involving former employees who left the pension plan after taking commuted values during a work force adjustment.

The court treated the action as a companion to related pension litigation and certified common issues mirroring those already certified in the related action, including additional conflict of interest issues under the PBSA.

The court rejected the argument that the proposed class definition was irrationally over-inclusive or under-inclusive, found the class action procedure preferable, and accepted the proposed representatives.

The action was certified, the plaintiffs were directed to deliver an updated litigation plan, and the two related actions were ordered to be tried together subject to the trial judge's discretion.

The plaintiffs sought costs on a substantial indemnity basis following a motion for directions on how to implement a Consent Judgment.

The responding party argued that no costs should be awarded because the original Minutes of Settlement and Consent Judgment were deficient and failed to include necessary terms.

The court found that because the Consent Judgment was unclear and both parties failed to include terms on how to implement it, the motion was necessary.

The court ordered that both parties bear their own costs.

The parties, equal shareholders in a corporation and former spouses, signed Minutes of Settlement and a consent Judgment to distribute the corporation's assets.

The Judgment did not address the capital gains taxes and other liabilities incurred by transferring properties to the shareholders.

The plaintiffs brought a motion under Rule 59.06(2)(c) to carry the Judgment into operation, arguing the corporation must pay all taxes and creditors before distributing the remaining assets.

The defendant argued he should receive his share without the corporation first paying taxes.

The court held it had jurisdiction to give directions and ordered that the corporation must pay all taxes and creditors before distributing the balance of its assets equally to the shareholders, as required by the Business Corporations Act.

The defendant's motion for contempt was dismissed.

The appellant employee and respondent employer entered into a framework agreement containing four sub-agreements to resolve various disputes.

The employer breached the employment sub-agreement by terminating the employee, who then sued for wrongful dismissal and claimed the entire framework agreement was voided.

The motion judge granted summary judgment for wrongful dismissal but held the sub-agreements were severable, dismissing the employee's claims under the other sub-agreements and staying execution of the wrongful dismissal judgment pending the employer's counterclaim.

The Court of Appeal dismissed the appeal, finding no error in the conclusion that the sub-agreements were independent and severable, nor in the discretionary decision to grant a stay.

The appellants, former employees of CMHC, sought to certify class proceedings claiming that CMHC breached its duties by failing to partially terminate its pension plan and distribute the surplus to them after a workforce downsizing.

The motion judge and Divisional Court refused to certify the common issues, finding no viable cause of action.

The Court of Appeal dismissed the appeal, holding that under the Pension Benefits Standards Act, 1985, the court lacks jurisdiction to order an employer to partially terminate a pension plan or to award damages premised on a partial termination.

The court also upheld the refusal to certify a misrepresentation claim and the denial of costs out of the pension fund.

The plaintiff real estate brokerage brought an action against the vendor, its principal, and the purchaser for an unpaid real estate commission.

The vendor and purchaser had entered into an agreement of purchase and sale during the listing period, which was later revived and closed under a different corporate purchaser name at the vendor's insistence to avoid paying the commission.

The court found that the commission was earned and payable under the listing agreement.

The court also held the vendor's principal and the corporate purchaser liable for intentional interference with contractual relations for their bad faith conduct in attempting to circumvent the commission.

The appellant was successful in an appeal determining that the respondents had no authority under the Building Code Act to issue orders that caused a care facility to be immediately evacuated.

In this costs endorsement, the appellant sought substantial indemnity costs of $40,204.57, while the respondents suggested $5,000 to $7,500.

The court found no bad faith but noted the respondents ignored the appellant's rights to reasonable notice and an opportunity to remediate when other legal options were available.

The court exercised its discretion to award the appellant costs in an elevated amount of $20,000 all inclusive.

The appellants (Developers) appealed a trial judgment finding them indebted to the respondent (Contractor), allowing the Contractor to allocate advance payments to older invoices, and finding the Developers in breach of their trust obligations under s. 7 of the Construction Lien Act.

The Contractor cross-appealed the disallowance of certain invoices and the failure to grant equitable relief.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the Developers owed some debt, that the Contractor properly allocated the advances after making reasonable inquiries, and that the Developers breached their trust obligations by commingling funds.

The cross-appeal was allowed in part to permit recovery on specific basement subexcavation invoices supported by approved purchase orders.

The appellant operated a residential care facility.

Following a failed unannounced fire drill, the Chief Building Official issued orders under s. 15.9 of the Building Code Act declaring the building unsafe and immediately prohibiting its use and occupancy, forcing the evacuation of 20 residents.

The appellant appealed, arguing the official had no authority under s. 15.9 to order immediate evacuation without providing time for remediation.

The Divisional Court allowed the appeal and set aside the orders, finding that s. 15.9 requires a property owner be given a reasonable time to take remedial steps before an occupancy prohibition can be issued, distinguishing it from the emergency powers in s. 15.10.

The applicant sought judicial review of a university senate appeals committee decision denying him a specialized accounting degree.

The dispute centered on whether a specific strategic management course could be included in calculating his grade point average for the specialization.

The Divisional Court held that the committee's decision on an academic matter was subject to a reasonableness standard of review and found the decision to exclude the course was reasonable.

The application for judicial review was dismissed.

The appellants appealed a trial judgment ordering them to pay $364,266.92 in an accounting and $50,000 in punitive damages to the respondent, a creditor of a bankrupt company.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellants failed to provide a reliable accounting or preserve necessary documents.

The court also upheld the punitive damages award, noting the appellants operated the bankrupt company's business without authority and charged criminal rates of interest.

The appellant appealed the dismissal of his application for the appointment of an arbitrator under the Arbitration Act, 1991.

The application judge had dismissed the application on the basis that the underlying contract, and therefore the arbitration clause, had terminated.

The Court of Appeal found that the application judge erred, as the arbitration clause survived the termination of the contract and the question of termination was itself subject to arbitration.

However, the Court of Appeal dismissed the appeal because the appellant, acting in his personal capacity, was not a party to the arbitration agreement between the respondent and the corporation.

The appellant appealed a trial judgment awarding it $1.7 million in damages for the respondent's breach of an amalgamation agreement involving a reverse take-over.

The appellant argued damages should have been assessed at a later date using a share value approach or by applying a multiplier to the respondent's asset value, which would have yielded over $8 million.

The respondent cross-appealed the 10% contingency discount and the 10% pre-judgment interest rate.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge correctly assessed damages at the date of breach using the best available evidence (an asset valuation) because no market existed for the shares at that time, and properly exercised his discretion regarding contingencies and interest.

The respondents failed to pay property taxes on their family farm, leading the appellant township to initiate a tax sale under the Municipal Tax Sales Act.

After tenders were opened but before the tax deed was registered, the respondents offered to pay the full cancellation price.

The municipal treasurer refused, believing she had no discretion to cancel the sale once tenders were opened.

The application judge cancelled the tax sale, finding the treasurer failed to exercise her discretion under s. 12(6) of the Act.

The Court of Appeal dismissed the appeal, confirming that a municipal treasurer retains the discretion to cancel a tax sale at any time up to the registration of the tax deed.

The appellants appealed a decision granting the respondents relief from forfeiture and cancelling a municipal tax sale of their farm.

The respondents had failed to pay property taxes, and the township initiated a tax sale.

After tenders were opened but before the sale was finalized, the respondents offered to pay the full cancellation price.

The municipal treasurer refused, believing she had no discretion to cancel the sale once tenders were opened.

The Court of Appeal dismissed the appeal, holding that under subsection 12(6) of the Municipal Tax Sales Act, the treasurer retains the discretion to cancel a tax sale at any time up to the registration of the tax deed.

The appellants, including the builder and contractors, appealed a trial judgment awarding damages to the respondent condominium corporation for structural deficiencies in a block back-up wall.

The appellants argued the action was barred by res judicata, issue estoppel, and the six-year limitation period, and challenged the findings of breach of warranty and negligence.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the structural defects could not have been discovered earlier with reasonable diligence, and that the warranty clause, interpreted contra proferentem, did not limit claims to one year.

The damages assessment was also upheld.

The defendants sought leave to appeal an order requiring the payment of costs forthwith following the granting and continuance of an ex parte injunction against them.

The court granted leave to appeal, noting that recent changes to Rule 57.03(1) of the Rules of Civil Procedure and the unique nature of interlocutory injunctions warranted appellate consideration on how discretion should be exercised in awarding costs in such cases.

The appellant challenged a trial judgment arising from an intended amalgamation and reverse takeover transaction designed to achieve business objectives for both corporations, including a stock exchange listing.

The Court of Appeal upheld the finding that the February 21, 1990 contract was binding and enforceable, and rejected the argument that the public float requirement operated as a condition precedent.

The court accepted the trial judge’s credibility findings that the appellant knew of the requirement, could have satisfied it, but instead failed to use best efforts and made compliance impossible through undisclosed agreements.

The appeal was dismissed with costs.