Peter James Zibarras

The plaintiff, a former officer and director of the defendant mining company, sued for wrongful dismissal seeking over $2.3 million under a 2008 Management Consulting Agreement.

The defendant argued the agreement was unenforceable due to the plaintiff's breach of fiduciary duty in its negotiation and that, in any event, the plaintiff was terminated for just cause.

The court found the 2008 agreement was the product of a flawed process and contained unfair terms, constituting a breach of fiduciary duty.

Furthermore, the court held the plaintiff's subsequent conduct, including installing hidden cameras, issuing unauthorized press releases, and trading shares during blackout periods, provided just cause for termination.

The action was dismissed.

The plaintiffs, shareholders in several real estate corporations, sought leave to commence a derivative action and amended their statement of claim to add new causes of action following the discovery of a multi-million dollar fraud by a co-investor.

The defendants moved to strike the new claims and opposed the derivative action.

The court held that the motion for leave to commence a derivative action was statute-barred under the Limitations Act, 2002, applying the Supreme Court's reasoning in CIBC v. Green regarding the unavailability of nunc pro tunc orders to circumvent expired limitation periods.

The court also struck the new claims for breach of contract, breach of fiduciary duty, and negligence as statute-barred, but allowed the unjust enrichment and oppression claims to proceed.

The appellant, a gas station operator, appealed the dismissal of its counterclaim against its former landlord and two former employees.

The employees had secretly negotiated a head lease for the gas station premises after the appellant's lease expired and it refused the landlord's terms.

The trial judge dismissed the appellant's claims for breach of fiduciary duty and inducing breach of contract as statute-barred, finding the appellant knew of the employees' actions more than two years before filing the counterclaim.

The Court of Appeal upheld the trial judge's factual findings on discoverability and the lack of intent by the landlord to induce a breach of contract, dismissing the appeal.

The plaintiffs brought a motion for leave to appeal an order releasing $75,000 from funds frozen under a Mareva injunction to allow the defendants to pay legal fees.

The plaintiffs argued the order conflicted with a prior decision dismissing the defendants' motion to vary the injunction.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decision as the factual circumstances had changed, and no reason to doubt the correctness of the discretionary order.

Competing motions were brought to vary a Mareva injunction to permit access to frozen funds for legal expenses.

The plaintiffs sought $1.5 million from a frozen bank account in their name, while the defendants sought $534,000 from other frozen assets.

The court reviewed the legal test governing access to funds subject to a Mareva injunction and held that the test for defendants seeking release of funds did not apply in the same way when plaintiffs sought access to funds they claimed to own.

The court found the plaintiffs had established a sufficient proprietary interest in the account but exercised discretion to limit access due to credibility concerns and the procedural history of multiple collateral proceedings.

Partial funding was granted to both sides to permit fair participation in the litigation.

Following dismissal of an application challenging confirmation of a Master’s Report after a lengthy trial, the successful party sought costs on a partial indemnity basis.

The court reviewed the reasonableness of the hours claimed for responding to and preparing for the motion, noting that the same counsel had participated at trial and were already familiar with the evidence.

The court held that the preparation time claimed for the motion was excessive and reduced it by half.

Applying the principle that costs awards must be reasonable and reflect parties’ expectations as to quantum, the court fixed a reduced lump‑sum costs award.

The defendants applied under Rule 54.09(2) to oppose confirmation of a master's report following a 12‑day construction lien trial.

The master had found that the owner repudiated the construction contract, that performance milestones were implicitly amended due to design and structural changes imposed by the owner, and that the contractor was entitled to damages and a construction lien.

On review, the court applied the appellate standard of review requiring an error in principle or palpable and overriding error.

The court held that the master's factual findings regarding the applicable construction plans, scope changes, and amended milestone sequence were supported by the evidence and entitled to deference.

The application to oppose confirmation of the master's report was dismissed.

The plaintiff creditor sought to set aside several property transfers made by the debtor to his spouse and to a corporation owned by the spouse, alleging they were fraudulent conveyances under the Fraudulent Conveyances Act.

The court analyzed transfers occurring in 1987, 1988, 1992, and 1993, applying the statutory test and the common-law “badges of fraud.” It held that earlier transfers of commercial and farm properties in 1987–1988 were not fraudulent because the plaintiff was not yet a creditor and there was insufficient evidence that the debtor reasonably anticipated insolvency at the time.

However, transfers of the debtor’s interest in the matrimonial home in 1992 and a Florida condominium in 1993 occurred when the debtor faced serious financial exposure and litigation, and were made with intent to defeat creditors.

Those later transfers were set aside.

Although the plaintiff delayed extensively in pursuing the action, the defence of laches failed because the defendants did not prove specific prejudice from the delay.

The applicant sought to set aside an arbitration award requiring payment of finder’s fees arising from investments made by a third-party investor introduced through the respondent.

The applicant argued the arbitrator committed unreasonable errors of law, improperly relied on a prior agreement, misinterpreted a non‑circumvention clause, and exceeded jurisdiction by determining issues relating to securities law registration requirements.

The court held that even if reasonableness review were available, the arbitrator’s interpretation of the finder’s fee agreement was reasonable and grounded in the contractual language and factual matrix.

The court further held that securities law compliance issues were capable of arbitration and that the applicant had waived jurisdictional objections by raising the issue before the arbitrator.

The application to set aside the award was dismissed and the cross‑application to enforce the arbitration award was granted.

A contractor commenced an action to recover payment under a fixed-price construction contract after leaving a renovation project when the owner refused to pay a milestone invoice.

The owner counterclaimed for completion costs, deficiencies, delay, and lost rental income.

The court held that the owner’s design changes altered the sequence of work and made the contractual milestone conditions impossible to satisfy, giving rise to an obligation to renegotiate milestone payments in good faith.

By refusing to negotiate or make any interim payment after the contractor completed the mezzanine stage, the owner repudiated the contract.

The contractor was entitled to quantum meruit compensation for services and materials supplied, allowable extras, overhead and profit, and lost profit on the remaining contract work.

Claims for delay, lost rental income, and most deficiencies were rejected, and the construction lien was held to have been preserved and perfected in time.

Following a successful appeal, the appellant sought costs for the appeal, a motion to set aside an order, and the underlying motion before the lower court.

The respondents did not oppose the costs of the appeal.

The Court of Appeal awarded the appellant costs for all three matters, totaling $49,278.09.

The appellant appealed the dismissal of its action brought pursuant to s. 38(1) of the Bankruptcy and Insolvency Act to set aside alleged fraudulent conveyances.

The motion judge had dismissed the action as an abuse of process and barred by res judicata due to the bankrupt's discharge and the dismissal of a prior action.

The Court of Appeal allowed the appeal, holding that under s. 38(1), the appellant was advancing the Trustee's claim, not its own personal claim, meaning the action was not a collateral attack on the discharge order or barred by res judicata.

The Court also dismissed the respondents' motion to review a decision refusing to order security for costs against the appellant's counsel, who was acting on a contingency fee basis.

Following the dismissal of an action and related summary judgment proceedings, the successful defendants sought substantial partial indemnity costs against the plaintiffs.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure and assessed the reasonableness of the claimed fees, hourly rates, and the nature of work performed.

The court emphasized that costs awards should relate to steps authorized by the rules and excluded various client communications and strategic consultations that were not directly tied to procedural steps in the litigation.

Significant reductions were applied to certain categories of claimed work, including general preparation and work associated with abandoned or unnecessary motions.

The court ultimately fixed global cost awards payable by the plaintiffs to each set of defendants.

The plaintiffs sued the defendant law firm for professional negligence arising from advice given during a share purchase transaction.

The plaintiffs alleged the law firm failed to properly advise them on the risks associated with a pending wrongful dismissal lawsuit against the target company, resulting in a liability that exceeded the negotiated indemnity.

The defendant law firm moved for summary judgment to dismiss the action.

The court granted the motion, finding that the plaintiffs failed to establish a breach of the standard of care without expert evidence, and failed to prove that the alleged negligent advice caused their damages.

The respondents brought a motion seeking an order requiring the appellant's law firm, which was acting on a contingency fee basis, to post security for costs of the action and the appeal.

The appellant corporation and its principal were previously found to be impecunious.

The Court of Appeal dismissed the motion, holding that requiring lawyers on a contingency fee arrangement to post security for costs would impose a significant disincentive to such arrangements and run contrary to the rationale of promoting access to justice.

The plaintiffs and defendants, two brothers and their respective holding companies, engaged in a complex corporate divorce involving a transportation business, ProNorth.

The court determined that the brothers were equal 50/50 shareholders in the holding company, rejecting the defendant's claim of a 62/38 split.

The court found the defendant brother engaged in oppressive conduct by wrongfully excluding the plaintiff from a shareholders' meeting and removing him as a director.

As a remedy, the court ordered the defendant to purchase the plaintiff's shares at a fair value of $4,455,000, based on an en bloc valuation of $8.91 million.

The court also resolved disputes over several jointly owned properties, ordering the defendant to purchase the plaintiff's interests in properties used by the business, and directing the partition and sale of others.

The court awarded the plaintiff $180,000 in damages for exclusion from management, offset by $105,000 awarded to the company for the plaintiff's wrongful detention of a corporate aircraft.

Finally, the court found the company's accountant breached his fiduciary duty to the plaintiff by swearing an affidavit contrary to the corporate records, awarding nominal damages of $100.

The appellant appealed a motion judge's decision refusing to permit the addition of lawyer defendants to a statement of claim.

The motion judge had determined the proposed claims were not tenable at law.

The Court of Appeal allowed the appeal, finding that the proposed fresh as amended statement of claim, which alleged the lawyers provided incorrect advice regarding a share repurchase and litigation exposure, disclosed a tenable cause of action.

The Court also noted the motion judge improperly engaged in an assessment of the merits rather than solely assessing whether the claims were tenable at law.

The appellant was duped into mortgaging his father's properties and the funds disappeared.

The respondent lenders sued, obtained a Mareva injunction, and $250,000 of the appellant's lottery winnings were paid into court.

The respondents obtained default judgment.

The appellant moved for payment out of court of the frozen funds to pay for legal and living expenses, including defending related criminal charges.

The motion judge dismissed the motion, finding that once default judgment was granted, the Mareva injunction was spent and the funds were subject to the Creditors' Relief Act.

The Court of Appeal upheld the decision, holding that without a motion to set aside the default judgment demonstrating a meritorious defence, there is no principled basis to allow a defendant to deplete funds available to judgment creditors.

The appellant commenced a fraudulent conveyance action against the respondent, which was stayed when the respondent filed for bankruptcy.

The appellant later obtained an order under s. 38 of the Bankruptcy and Insolvency Act to bring proceedings in its own name.

The motion judge dismissed the action as statute-barred, finding that the trustee's discoverability date governed.

The Court of Appeal allowed the appeal, holding that under s. 12(1) of the Limitations Act, 2002, the relevant discoverability date is the earlier of the trustee's or the creditor's.

Since the creditor discovered the claim before the new Limitations Act came into force, no limitation period applied.

The parties separated and signed Minutes of Settlement regarding the family business.

The husband sold the business years later and refused to pay the wife her share, arguing her rights expired after four years under paragraph 5 of the Minutes.

The trial judge found the paragraph ambiguous, admitted parol evidence, and ruled in favour of the wife.

The husband appealed.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the provision was ambiguous and her use of parol evidence to determine the parties' intentions.