Peter J. Cavanagh

The defendants moved under s. 7(1) of the Arbitration Act, 1991 to stay the plaintiff's action on the basis that the dispute was subject to a mandatory arbitration clause in an Independent Contractor Agreement.

The plaintiff opposed the stay, arguing the arbitration agreement was invalid because it required arbitration administered by JAMS, which allegedly created a biased process, was unconscionable, and was incapable of being performed.

The court found that the technical prerequisites for a stay were met and that the plaintiff failed to establish any statutory exceptions, noting the agreement did not restrict the selection of an independent arbitrator.

The motion to stay the action was granted.

The defendant parent corporation brought a motion to stay or dismiss the plaintiff's action against it on the basis of forum non conveniens.

The plaintiff, a real estate broker, sued the parent corporation and its Canadian subsidiary for breach of contract and oppression under the Canada Business Corporations Act.

The court found that the parent corporation was not a party to the independent contractor agreement and that the plaintiff's only relationship with it was as a shareholder.

Because the shareholding agreements contained an exclusive forum selection clause in favour of Delaware, and the plaintiff failed to show strong cause why it should not be enforced, the court granted the motion and stayed the action against the parent corporation.

The respondents moved to convert an oppression application into an action and consolidate it with three wrongful dismissal actions brought by the applicants.

The respondents argued that the dispute involved complex factual and credibility issues that required oral discovery and a trial.

The court dismissed the motion as premature, finding that the respondents had not yet delivered responding evidence and had failed to clearly identify credibility issues that could not be resolved on a paper record.

The court held that the application judge would be in a better position to determine whether a trial is necessary after the evidentiary record is fully developed.

The court determined the costs for seven different motions in a complex commercial action involving Mareva injunctions and proprietary claims.

Applying the principles from Boucher and Rule 57.01, the court awarded partial indemnity costs to the successful parties on each motion, balancing divided success and the reasonableness of the amounts claimed.

In total, the plaintiffs were ordered to pay net costs to various defendants, while some defendants were ordered to pay costs to the plaintiffs for motions where the plaintiffs were successful.

The Divisional Court remitted a matter back to the Superior Court to determine whether disclosing the identities of third-party funders paying the living expenses of the Aljabri defendants posed a risk to their personal safety.

The defendants adduced unchallenged evidence that the Saudi regime had previously targeted the family and associates of the lead defendant following a 2017 palace coup.

The court found a material risk that disclosure to the plaintiffs could lead to the information reaching the Saudi government, jeopardizing the funders' safety.

The court ordered that the identities remain disclosed on a counsels' eyes only basis and not be provided to the plaintiffs.

The moving party, a respondent in the underlying application, brought a motion under Rule 59.06(2) to vary a consent order that had approved a share purchase agreement, alleging newly discovered fraud by the responding party.

The moving party sought to have the share sale proceeds paid into court as security for claims in related actions, or alternatively, a Mareva injunction restraining the responding party from dealing with the proceeds.

The court dismissed the motion, holding that Rule 59.06(2) cannot be used to amend the terms of a contract approved by a consent order.

The court also denied the Mareva injunction, finding no evidence to support a reasonable inference of a real risk that the responding party would dissipate or remove the assets to avoid a judgment.

The Receiver of a joint venture condominium project brought a motion within the receivership proceeding seeking judgment against the developer and its principal for over $1.5 million.

The claims arose from alleged inflated labour charges under a Construction Management Agreement and unearned fees under a Development Management Agreement.

The court held that the claims were properly brought within the receivership proceeding.

However, the claim for inflated labour charges was dismissed as statute-barred, having been discovered more than two years before the motion was commenced.

The court declined to grant immediate judgment on the unearned fees claim, directing that the developer's defence of set-off be determined following documentary and oral discovery.

Following the dismissal of an oppression application at the request of the applicants, the respondents sought costs and various other orders.

The court denied the respondents' claim for costs, finding that their conduct throughout the litigation had been improper, vexatious, and unnecessary, and that they were not the successful parties given an earlier finding of oppression against them.

The court also dismissed the respondents' requests for additional relief, including claims under the Human Rights Code and for restitution, as being outside the scope of the costs endorsement.

Following the dismissal of a commercial lease application at the landlord's request, both the landlord and the personal respondent sought costs.

The court denied costs to the personal respondent, despite the presumptive entitlement on an abandoned application, due to his vexatious and abusive conduct throughout the proceedings.

The court also denied the landlord's request for costs against the tenant and the personal respondent, finding the tenant was not responsible for the personal respondent's actions during the relevant period and the landlord was not substantially successful against the personal respondent personally.

No costs were awarded.

A respondent in an oppression application sent an email to the court requesting corrections to a previously published endorsement, alleging prejudicial errors regarding dates, counsel, and party identification.

The respondent also requested that other older endorsements be published.

The court dismissed the requests, finding the alleged errors in the published endorsement to be inconsequential to its substance.

The court also declined to publish the older endorsements, noting the respondent already possessed copies and had not demonstrated a need for their publication.

The moving parties, defendants in the action, brought a motion to disqualify the plaintiffs' counsel, Stikeman Elliott LLP, alleging the firm obtained access to their privileged communications with their former lawyers.

The privileged documents were produced in a related arbitration after the arbitral tribunal found a deemed waiver of privilege by another defendant.

The court found that the moving parties held a joint privilege over the documents, which could not be unilaterally waived.

Applying the three-stage test from Celanese, the court concluded that the plaintiffs' counsel obtained access to the privileged documents, failed to rebut the presumption of prejudice, and that disqualification of counsel was the only appropriate remedy to protect the integrity of the justice system.

The applicant appealed a Proposal Trustee's disallowance of its proof of claim against the respondent's estate.

The claim arose from the respondent's alleged breach of a settlement agreement prohibiting the diversion of salon-only products to unauthorized retailers.

The court drew inferences from circumstantial evidence that the respondent had diverted products to a grey market store in Macau, constituting a material breach of the agreement.

The court upheld the liquidated damages clause as a genuine pre-estimate of damages and enforced the applicant's contractual right to reasonable attorneys' fees, allowing the proof of claim in full.

The plaintiffs brought a motion for default judgment after the defendants were noted in default in an action alleging fraudulent inducement to invest in purported real estate development projects.

The court reviewed the deemed admissions under Rule 19.02 and the evidentiary record to determine whether the facts established liability for fraudulent misrepresentation.

Default judgment was granted against one individual defendant and related corporate entities for specific investments where the plaintiffs proved reliance on knowingly false representations in promotional materials.

Claims relating to other investments and claims against another individual defendant were directed to proceed to an undefended trial due to insufficient pleaded or evidentiary support.

The court also awarded punitive damages against the primary individual defendant and directed further submissions on costs.

Seven spirits suppliers brought an application challenging the enforceability of section 14 of the LCBO's standard purchase order Terms and Conditions — a "most favoured customer" no-price-discrimination clause — after the LCBO assessed approximately $35.9 million in chargebacks by way of set-off for breaches of the provision.

The applicants raised multiple grounds: ultra vires, statutory illegality, restraint of trade, unenforceable penalty/unconscionable forfeiture, waiver, estoppel by convention, bad faith, and unjust enrichment.

The court rejected all grounds, holding that section 14 falls squarely within the LCBO's statutory mandate to buy and sell liquor as a wholesaler and retailer, is not prohibited by statute, does not restrain trade, is not an unenforceable penalty, was not waived, and was not the subject of a shared assumption with suppliers that it would not be enforced.

The application was dismissed.

A vacant land condominium corporation sought damages and disgorgement of profits against its former directors and various defendants, alleging breach of fiduciary duty in connection with the release of easements burdening adjacent land.

The plaintiff claimed the directors received secret benefits in exchange for facilitating the release of easements valued at approximately $31.5 million.

The court found that the corporation was contractually obligated to release the easements pursuant to easement release provisions in registered agreements, and that the plaintiff failed to prove the directors received secret benefits or breached their fiduciary duties.

The court dismissed the plaintiff's claim and the counterclaim.

The defendants moved to strike the plaintiffs' amended statement of claim on the ground that it discloses no reasonable cause of action.

The court found that the plaintiffs failed to adequately plead the existence of a partnership relationship between the individual plaintiff and the defendants, failed to plead the material facts necessary to establish breach of contract claims with the required clarity and precision, and failed to plead the essential elements of various tort claims including tortious interference with economic interests, breach of fiduciary duty, breach of duty of good faith, unjust enrichment, conspiracy, negligence, and negligent misrepresentation.

The court granted the motion to strike and struck out the amended statement of claim, but granted leave to amend within 45 days.

The court considered an application by InFrontier AF LP to recognize and enforce an arbitral award issued in its favour by a Dubai-based arbitrator under the Dubai International Arbitration Centre (DIAC) Rules.

The respondent, Roeen Rahmani, opposed the application, arguing that the arbitration was not conducted in accordance with the parties’ agreement, that he was denied a fair hearing, and that enforcement would be contrary to Ontario public policy.

The court found that, due to legislative changes in Dubai, the DIAC Rules properly replaced the DIFC-LCIA Rules referenced in the parties’ agreement, and that the respondent had not established any procedural unfairness or public policy violation.

The application to recognize and enforce the award was granted.

The decision concerns a motion by Saad Aljabri and related parties for leave to issue a counterclaim in a complex civil action.

The court dismissed the motion, finding that the proposed counterclaim for abuse of process and conspiracy was statute-barred under Ontario law, and that the applicants failed to prove that Saudi law applied or that any exception to the limitation period existed.

The court also found that the proposed claims for declaratory relief against additional parties were not supported by a tenable cause of action.

The risk of prejudice to the plaintiffs, including loss of the scheduled trial date and increased costs, further supported dismissal.

The decision grants the motion of Saad Khalid S. Al Jabri for leave to issue a commission and letters of request to obtain evidence from witnesses outside Ontario for use at trial.

The court finds that the anticipated evidence of the proposed witnesses is material to issues in the action, and that the request is bona fide.

The ruling addresses the test for issuing commissions and letters of request, emphasizing the importance of a fair and full trial, and applies the test to several categories of proposed witnesses, including alleged co-conspirators, foreign officials, and counterterrorism experts.

The decision addresses a motion by Saad Aljabri, Mohammed Aljabri, and various corporate defendants to vary Mareva orders freezing their worldwide assets, seeking the release of frozen funds to pay legal fees.

The court grants the motion for all moving parties except Dreams International Advisory Services Ltd., finding that the Mareva Defendants have shown they lack access to other assets or reliable third-party funding, and that a variation is necessary to ensure a fair trial.

The court dismisses the motion by Dreams, finding insufficient evidence that it lacks access to other funds.

The decision reviews the legal test for varying Mareva orders and applies a balancing of interests, including the merits of the case, the complexity of the litigation, and the conduct of the parties.