Peter W. G. Carey

The court considered whether to dismiss the plaintiffs' action for delay under Rule 48.14 of the Rules of Civil Procedure.

The plaintiffs argued that the delay was due to their former counsel and the conduct of the defendants, and that they always intended to prosecute the action.

The court refrained from deciding the motion, directing that the former counsel be served with the motion materials and given an opportunity to respond, as the allegations against him could affect his interests and the fairness of the process.

This decision concerns two related lawsuits between siblings over the estate of their late mother, Carmen Debono.

The first action is for wrongful dismissal and oppression by David Debono and Elizabeth Muscat against the estate, its trustees, and two corporations.

The second is a claim by the estate, through its trustees, against David Debono, Elizabeth Muscat, and Jennifer Nesci for recovery of debts and alleged misappropriation of funds.

The court addresses interim motions for distributions and legal fees, as well as document production and the effect of an in terrorem clause in the will.

Both motions are dismissed, with the court emphasizing the need for transparency and full disclosure, and declining to enforce the in terrorem clause or grant interim relief at this stage.

The applicant, Framatome Canada, brought a motion seeking disclosure and production of company documents retained by the respondent, William Cooper, after his termination, along with a list of retained files, re-attendance for cross-examination, and leave to amend its notice of application.

Cooper opposed, arguing the motion was an abuse of process and that he had an agreement to retain the documents.

The court granted Framatome Canada's motion, finding the documents relevant for testing Cooper's assertions and that the motion was not an abuse of process.

The Court of Appeal for Ontario issued an endorsement on costs and minor revisions to its January 26, 2024 disposition of an appeal and cross-appeal.

The primary issue was whether Buduchnist Credit Union Limited (BCU) breached a Mareva Order and the consequences.

Trade Capital Finance Corp. (Trade Capital) was substantially successful on the breach and remedy issues, leading to BCU losing priority as a secured creditor and being unable to immediately enforce its judgment.

The court also addressed BCU's request for minor factual revisions to the previous reasons, adopting some and rejecting others.

This appeal concerned the breadth of the court's jurisdiction to address a breach of a Mareva order and abuse of process.

The appellant, Trade Capital Finance Corp., appealed a distribution order in favour of the respondent, Buduchnist Credit Union Limited (BCU).

BCU had made advances to clients in breach of a Mareva order and subsequently obtained consent judgments.

The motion judge found BCU breached the Mareva order, disallowed its secured claim for post-Mareva advances, but allowed it to enforce as an unsecured judgment creditor.

Trade Capital argued the enforcement should be delayed.

BCU cross-appealed its loss of priority.

The Court of Appeal found that the motion judge erred in limiting his discretion.

It held that the court has broad inherent jurisdiction to respond to a breach of its orders, including delaying enforcement of claims arising from such breaches.

The Court allowed Trade Capital's appeal, ordering that BCU's judgment enforcement for post-Mareva advances be delayed until Trade Capital's action is determined, with both parties collecting pari passu if Trade Capital succeeds.

The cross-appeal by BCU was dismissed.

The issue of specific Woodland Property advances was remitted for further adjudication.

The defendant brought a motion to strike portions of the plaintiff's amended statement of claim alleging defamation.

The defamation claim was based on statements communicated by the defendant to the Ontario Motor Vehicle Industry Council (OMVIC) regarding customer complaints and alleged ethical breaches by the plaintiff.

The defendant argued that these statements were protected by absolute privilege.

The court granted the motion, finding that confidential communications of complaints to a statutory body exercising disciplinary powers, as a step incidental to quasi-judicial proceedings, are protected by absolute privilege, thus disclosing no reasonable cause of action for defamation.

The appellant, Princes Gates GP Inc. (PG), appealed a trial judgment finding it liable for breach of contract and bad faith termination of agreements with the respondent tenant, 2505243 Ontario Limited (250), a food services provider.

The trial judge awarded 250 reliance damages and employee compensation damages.

PG argued errors in findings of improper termination, refusal to assist with the Canada Emergency Commercial Rent Assistance Program (CECRA), bad faith, and damages calculation.

The Court of Appeal dismissed PG's appeal, upholding the trial judge's findings that PG's actions contributed to 250's inability to pay rent, their refusal to assist with CECRA was unjustified, and their termination was in bad faith by misleading 250 while secretly negotiating with a new provider.

The court also affirmed the reliance damages award and the employee compensation damages.

The Court of Appeal for Ontario heard a motion by 94 former employees (proposed interveners) to intervene as an added party in an appeal between 2505243 Ontario Limited and Princes Gates GP Inc. The employees sought to protect a $2.063 million fund set aside for their potential termination claims by the trial judge.

The motion was opposed by Princes Gates GP Inc., while 2505243 Ontario Limited took no position.

The court dismissed the motion, finding that although the proposed interveners had a direct financial interest, their submissions would largely duplicate those of 2505243 Ontario Limited and risked introducing a new, unlitigated issue (common employer) from a separate class proceeding.

Trade Capital Finance Corp. (TC) and Buduchnist Credit Union Limited (BCU) filed opposing motions in an insolvency appeal.

TC sought an extension of time and leave to appeal a lower court's final disposition order concerning the distribution of receivership proceeds, arguing the order allowed BCU to enforce judgments arising from transactions in breach of a Mareva order.

BCU sought to lift the automatic stay of proceedings and security for costs.

The Court of Appeal granted TC's motions for extension of time and leave to appeal, finding the appeal prima facie meritorious and raising issues of general importance regarding Mareva orders and creditor enforcement in insolvency.

The court denied BCU's motions to lift the stay and for security for costs, concluding that the BIA governed the appeal and that lifting the stay would render TC's appeal moot, and that security for costs was not fitting given BCU was the applicant below and TC's insolvency stemmed from the alleged fraud.

The appellant union appealed an injunction granted during a labour dispute that had enjoined a blockade of the employer's premises.

The union had admitted the illegality of their actions and irreparable harm.

The appeal argued that the injunction's terms unnecessarily restrained lawful strike activity.

The Court of Appeal dismissed the appeal as moot because the underlying dispute had been settled.

The court declined to exercise its discretion to hear the moot appeal, finding the motion judge's decision was fact-specific and did not raise questions of public importance beyond the resolved dispute.

The Court of Appeal for Ontario heard an appeal concerning the testamentary capacity of a deceased who wrote a holograph will (suicide note) shortly before his death, while under the influence of alcohol and drugs.

The lower court had found a lack of testamentary capacity and issued a blended costs order.

The appellate court revisited the determination of testamentary capacity in suspicious circumstances and the principles governing costs in estate litigation.

The Court found that the application judge erred in principle by failing to apply the correct legal test for testamentary capacity and concluded that the deceased did possess testamentary capacity.

The Court also found that the costs order below was wrongly decided, as the public policy considerations in estate litigation dictated that costs should generally be paid from the estate when the litigation arises from the testator's conduct or suspicious circumstances surrounding the will.

The appeal was allowed, the suicide note was declared a valid will, and the costs order was set aside, with new costs orders made payable from the estate.

The plaintiff, Trade Capital Finance Corp., brought a motion to compel the defendant, Carlo De Maria, to make full disclosure and produce documents relating to the operation of The Cash House Inc. and related corporations.

The plaintiff alleged it was defrauded of millions of dollars and that the stolen funds were funneled through these corporations.

The court found that De Maria retained power and control over the documents despite a purported sale of the business.

The court ordered De Maria to serve a further and better affidavit of documents and produce the requested records, subject to specific rulings on individual categories of documents.

This endorsement determines the quantum and payer of costs following a dismissed application by Sandra Krolewski and Edward Medeiros to set aside the 2015 Will of Eduardo Medeiros.

The respondent, Maria Natalia Moniz, was the successful party in the main application.

The court awarded Moniz partial indemnity costs of $46,349.74, reducing the amount sought due to proportionality and duplication of counsel.

The costs were ordered to be paid by the applicants, not the estate, as their will challenge based on lack of testamentary capacity and undue influence was found to be unjustified and not supported by their own expert's opinion.

This endorsement addresses the issue of costs following a successful motion by the defendants.

The defendants sought $200,000 in costs, arguing it was a discount from their partial and substantial indemnity costs, citing extensive motion records, witness evidence, cross-examinations, and rejected settlement offers.

The plaintiff requested costs be reserved to the trial judge or argued the claimed costs were excessive, noting their own partial indemnity costs were significantly lower.

The court declined to reserve costs, affirming the defendants' entitlement as successful parties.

However, the court found the defendants' claimed costs excessive, noting they were double the plaintiff's costs, and fixed the costs at $150,000, all-inclusive, payable within 30 days, emphasizing the need for costs to be reasonable in the circumstances.

The plaintiff, a former franchisee, brought a motion for summary judgment against the franchisor and its principal, alleging deficiencies in disclosure documents, fraud, and forgery, and seeking damages over $2,000,000.

The defendants opposed the motion, arguing numerous factual disputes and credibility issues.

The court dismissed the motion for summary judgment, finding that the case involved too many disputed issues of fact, including allegations of fraud and forgery, which required an assessment of credibility that could not be resolved on a paper record.

The court also noted that a complex legal issue regarding the effect of a notice of rescission required a full appreciation of the factual matrix, best achieved at trial.

The plaintiff, a Starbucks franchisee, sought an urgent interlocutory injunction to prevent the defendants (landlords) from interfering with its use of a "Disputed Space" essential for its operations at Hotel X. The defendants sought to terminate the tenancy, asserting the plaintiff was trespassing on the Disputed Space, which was not explicitly included in the lease but was built out and paid for by the plaintiff.

The court applied the R.J.R. MacDonald test, finding a prima facie case, irreparable harm to the plaintiff, and that the balance of convenience favored granting the injunction, subject to terms regarding rent and sharing of the space.

The court determined the fair market value of the applicant's shares and the costs of the proceeding following a successful oppression application.

The court rejected the respondents' liquidation approach to valuation, preferring a going-concern adjusted book value approach, and fixed the share value at $668,674.

The court awarded substantial indemnity costs to the applicant and counter-respondents, citing the respondents' incivility, excessive posturing, and unfounded allegations of fraud.

The Canadian Imperial Bank of Commerce (CIBC) sought an interpleader order under Rule 43 of the Rules of Civil Procedure for approximately $25.7 million CAD and $69,000 USD.

These "Disputed Funds" were held in accounts related to cryptocurrency transactions facilitated by Costodian Inc. for QuadrigaCX, with some funds transferred to Jose Reyes's personal accounts.

CIBC froze the accounts due to an inability to determine the rightful entitlement among 388 depositors, Costodian, Reyes, Billerfy, and QuadrigaCX, and concerns about money laundering.

The respondents opposed the application, arguing there were no competing claims.

The court found a real foundation for competing claims, both among the respondents themselves and from the depositors, particularly noting the refusal of QuadrigaCX's CEO to confirm if depositors' online wallets had been credited.

The interpleader order was granted, directing the funds to be paid into court, but the court declined to extinguish CIBC's potential liability for its actions in freezing the accounts.

The applicant, a co-founder and equal shareholder of Boothworks Inc., was dismissed and removed as a director and officer by the other two co-founders.

The applicant sought a fair market value purchase of his shares, alleging oppression.

The respondents counter-applied, alleging breach of fiduciary duty and seeking damages for loss of a major client (Spin Master) that had a personal relationship with the applicant.

The court found that the respondents' actions constituted oppression, as they unfairly disregarded the applicant's reasonable expectations of equality in the company.

The court dismissed the counter-application, finding no breach of fiduciary duty by the applicant or other counter-respondents, as the client relationship was personal to the applicant and not an asset of Boothworks.

The court ordered the respondents to purchase the applicant's shares at fair market value, with specific valuation guidelines.