Peter J. Cavanagh

The Applicant, a dissenting shareholder, sought costs on a full indemnity basis after successfully obtaining an order fixing the fair value of his shares.

The court had previously ordered the Respondent to pay $63,000 for the shares.

The Applicant argued that the Respondent failed to comply with s. 185(15) of the Ontario Business Corporations Act (OBCA) by offering zero for the shares, which would trigger full indemnity costs under s. 185(21).

The court found that the Respondent's offer of zero, accompanied by an explanation, did comply with s. 185(15) and therefore, the costs consequences of s. 185(21) were not triggered.

The court awarded costs on a partial indemnity scale, fixing them at $99,951.75, after considering the factors in Rule 57.01 of the Rules of Civil Procedure, the complexity of the case, and the proportionality of the costs claimed relative to the amount at issue.

This endorsement concerns the costs arising from successful anti-SLAPP motions brought by the Crown Defendants and the Better Business Bureau of Central Ontario Inc. (BBB) against A&H Asset Auctions Inc. The court considered the presumption of full indemnity costs under s. 137.1(7) of the Courts of Justice Act.

It found that the indicia of a SLAPP suit were not present, and therefore, an award of full indemnity costs was not appropriate.

The court awarded costs on a partial indemnity basis to both the Crown Defendants and BBB, fixing the amounts at $150,416 and $87,122.55 respectively.

The plaintiffs sought costs following the dismissal of the defendants' motion to vacate a Mareva injunction.

The plaintiffs sought costs on a substantial indemnity scale, alleging egregious conduct by the defendants, including a multi-year fraudulent scheme.

The court declined to award substantial indemnity costs as the claims had not been finally adjudicated.

The court awarded costs on a partial indemnity scale, including the costs of the initial motion made without notice, as those materials were necessary for the de novo hearing.

Costs were fixed at $200,000, payable within 30 days.

Following the dismissal of the plaintiffs' action at trial, the defendant sought costs on a full indemnity scale pursuant to a contractual provision in the parties' agreement.

The plaintiffs argued that the provision did not apply to declaratory relief and did not explicitly state 'full indemnity'.

The court held that the contractual language allowing recovery of 'all reasonable costs' entitled the defendant to full indemnity costs.

However, the court declined to award costs for the defendant's U.S. counsel, finding their involvement was not reasonably required for the Ontario litigation.

The court awarded the defendant its Canadian counsel's fees and disbursements in full, totaling $2,192,609.12, finding the amount reasonable and proportionate given the high stakes of the commercial dispute.

The plaintiff, a senior executive at RBC, was dismissed following an investigation into his financial dealings with a subordinate.

He sued for wrongful dismissal, claiming entitlement to 24 months' reasonable notice under Ontario common law.

RBC argued the employment contract was governed by UK law, which limited notice to 12 weeks, and alternatively pleaded after-acquired cause based on the plaintiff's dishonesty during the investigation.

The court held that UK law governed the contract and the plaintiff had received his contractual notice.

Furthermore, the court found that RBC had established after-acquired cause because the plaintiff deliberately withheld material information about his real estate investments with the subordinate during the investigation.

The plaintiff's claim was dismissed, save for unpaid vested compensation, and RBC's counterclaim for mistaken tax overpayments was allowed.

The defendants in two related oppression actions brought a motion to compel the plaintiffs to re-attend examinations for discovery to answer refused questions and to produce a solicitor's file.

The defendants also sought leave to examine a non-party.

The refused questions related to the plaintiffs' consultations with lawyers, which the defendants argued were relevant to their limitation period defence and discoverability.

The court dismissed the motion, finding that the requested information and files were protected by solicitor-client privilege, which had not been waived, and were not relevant to the discoverability issue since the consultations occurred within the two-year limitation period.

The request to examine the non-party was also dismissed as the communications were privileged.

The defendant, Andrew Rudensky, moved to set aside a default judgment and noting of default obtained by the plaintiffs for defamation.

The court found that the Amended Statement of Claim was not properly served on Mr. Rudensky at his place of residence, rendering the default judgment irregularly obtained.

Applying the "as of right" rule for irregularly obtained judgments, the court set aside both the default judgment and the noting of default.

The plaintiff, a former employee, brought a motion for summary judgment against the defendant for unpaid vacation, deferred bonuses, and stock options.

The court found that the plaintiff was not constructively dismissed but had retired.

However, the court granted summary judgment for the plaintiff on the claims for unused vacation pay, deferred bonuses, and the value of lost stock options, finding no genuine issue requiring a trial for these claims.

The defendant's counterclaim for just cause dismissal had been previously dismissed by the Court of Appeal, and the current court found issue estoppel applied to prevent its re-litigation as a defense.

The applicant, a dissenting shareholder, sought a declaration that he owned 900,000 shares in a junior mining company prior to its amalgamation, and an order fixing the fair value of those shares.

The respondent argued the applicant's shareholdings were limited by an Anti-Dilution Agreement.

The court found the applicant was the registered holder of 900,000 shares and had a statutory right to dissent under s. 185 of the OBCA, unconstrained by the contractual agreement for the purpose of valuation.

The court fixed the fair value of the shares at $0.07 per share based on expert evidence of comparable junior mining companies.

The applicant's claim for oppression was dismissed.

The applicant, a co-founder and former CTO of the respondent technology company, brought an application to wind up the company under section 207 of the Business Corporations Act.

The applicant alleged the company could not continue its business due to its liabilities and that a breakdown in the relationship between the founders made it just and equitable to wind up the company.

The court dismissed the application, finding the company had recently raised significant capital and was not insolvent.

The court also held that while there was a breakdown of trust, the company was not a two-person partnership, and winding up was not a just and equitable remedy given the presence of other investors and employees.

The plaintiff, an auction business, brought an action for defamation against the Crown Defendants and the Better Business Bureau (BBB) regarding statements made about the plaintiff's relationship with the federal government in selling seized gemstones.

The defendants brought motions to dismiss the action under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The court found that the statements related to matters of public interest.

The court concluded that the plaintiff failed to show its claims had substantial merit against the Crown Defendants, failed to show the defendants had no valid defences (including qualified privilege and justification), and failed to establish that the harm it suffered outweighed the public interest in protecting the defendants' expressions.

The motions were granted and the action was dismissed.

The plaintiff, an elderly passenger using a walker, brought a negligence action against the transit commission and its bus driver after she fell while exiting a bus.

She alleged the driver breached the standard of care by failing to deploy a ramp or move the bus closer to the curb.

The court reviewed video evidence and testimony, finding that the driver had stopped a normal distance from the curb and kneeled the bus according to standard practice.

The court concluded the plaintiff failed to establish a prima facie case of negligence, and the action was dismissed.

The plaintiff and third-party father sued the defendant sons for repayment of alleged oral loans totaling $248,000 used to purchase a condominium.

The sons counterclaimed for unpaid wages, alleging the payments were actually 'banked' wages from their employment at the father's companies, and sought punitive damages for the father's conduct.

The court dismissed the loan claims, finding the payments were indeed banked wages.

The court allowed the sons' counterclaim for unpaid wages, finding the father personally liable as a common employer.

The court also awarded $75,000 in punitive damages to each son due to the father's reprehensible conduct, including withholding wages, spoliation of employment records, and maintaining a false narrative throughout the litigation.

This is a costs endorsement following a trial where the plaintiff partially succeeded on his claim for $100,000 and successfully defended a $2 million counterclaim.

The plaintiff sought costs on a partial indemnity scale.

The court awarded costs to the plaintiff, but reduced the claimed fees by $10,000 due to the plaintiff's late abandonment of general damages claims, which resulted in unnecessary expenditures of time.

The final costs were fixed at $70,876.32.

The plaintiff, a suspended and terminated coach member of Athletics Ontario (AO), sought an interlocutory injunction to restrain AO from interfering with his attendance or coaching at sports events not hosted by AO, even if sanctioned by AO.

The court applied the three-part test for interlocutory injunctions from RJR-MacDonald.

The court found that the plaintiff failed to establish a serious issue to be tried regarding AO's alleged unlawful conduct (threats to third parties, calls to police), as his evidence was inadmissible hearsay under Rule 39.01(4) of the Rules of Civil Procedure.

Consequently, the motion for an interlocutory injunction was dismissed, and costs were awarded to the defendants.

The Dowdell Parties and York Condominium Corporation No. 403 ("YCC 403") each brought applications under the Condominium Act, 1998.

The Dowdell Parties sought declarations of breach and oppression, an order for YCC 403 to maintain exterior windows using external equipment, and damages, arguing against YCC 403's access through their unit for maintenance.

YCC 403 sought declarations that the Dowdell Parties breached s. 19 of the Act by refusing access for anchor inspection/testing and window cleaning, and an order compelling access and provision of keys.

The court dismissed the Dowdell Parties' application, finding YCC 403's maintenance approach reasonable and no material harm or oppression.

The court granted YCC 403's application, declaring the Dowdell Parties in breach of s. 19 for refusing access and ordering them to permit entry and provide keys, emphasizing the condominium corporation's broad powers and the reasonableness of its access requirements for common element maintenance.

Citibank, N.A. commenced an application seeking the appointment of an investigative receiver for Rodrigo Lebois Mateos' assets, inspection of records for Terralpa Investment Fund I Limited Partnership and Araterra Inversiones, and compliance with the Limited Partnerships Act.

The respondents brought a motion to permanently or temporarily stay the application in favour of ongoing proceedings in the United States District Court for the Southern District of New York.

The court granted a temporary stay of Citibank's application for a receiver, finding a substantial overlap with the U.S. proceedings and potential for duplication of resources.

However, the court ordered Terralpa LP and Araterra Inversiones to comply with the record-keeping and disclosure requirements of the Limited Partnerships Act, as this relief was outside the U.S. court's jurisdiction.

A sealing order was also granted for sensitive financial information to maintain comity with the U.S. proceedings.

The Plaintiff sought repayment of a $100,000 loan from the Defendant.

The Defendant argued the loan was conditional on the sale of certain assembled properties and counterclaimed for $2 million in damages, alleging breach of a partnership agreement related to a land assembly project.

The court found no evidence that the loan was conditional and held it was due.

Furthermore, the court determined that no enforceable partnership agreement existed between the parties regarding the land development or sale, as essential terms were never settled or formalized in writing as intended.

The Plaintiff's action for the loan repayment was allowed, and the Defendant's counterclaim was dismissed.

SureFire Dividend Capture LP (SDC) sought indemnification from Berkshire Hathaway Specialty Insurance under a fidelity bond for losses incurred due to a Ponzi scheme perpetrated by Brenda Smith, manager of Broad Reach Capital, LP (BRC), in which SDC had invested.

SDC claimed coverage under three insuring agreements (A)(1), (A)(4), and (B)(1)(b) of the Bond.

The court found that SDC failed to establish that its loss fell within the initial grant of coverage under any of the agreements, primarily because the stolen funds belonged to BRC, not SDC or its investors, and Brenda Smith was not an "Employee" of SDC as defined by the Bond for the purposes of SDC's direct claim.

The court also noted that SDC failed to disclose a material "in-kind" transfer of interests from other funds to SDC, which would have excluded coverage for that portion of the loss.

SDC's claim for punitive damages for bad faith was also dismissed.

The plaintiff, a former Toronto police officer, sued the defendants for malicious prosecution, negligent investigation, misfeasance in public office, intentional infliction of emotional distress, and Charter breaches following his arrest and prosecution for corruption and other offences.

The criminal charges were ultimately stayed or withdrawn.

The court dismissed the action, finding that the plaintiff failed to prove the absence of reasonable and probable grounds for the charges, which was fatal to the malicious prosecution and negligent investigation claims.

The court also found no evidence of malice, deliberate unlawful conduct intended to harm, or conduct calculated to cause mental suffering.

The claim for Charter damages was also dismissed.