Rebecca Fisch

The defendants sought leave to appeal an order dismissing their motion for summary judgment and to strike the plaintiffs' statement of claim.

The plaintiffs alleged the defendants engaged in a conspiracy and 'closure campaign' against their sleep clinics.

The defendants argued the claims were barred by statutory immunity under the Independent Health Facilities Act and constituted an abuse of process.

The Divisional Court dismissed the motions for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision that the pleadings were sufficient and the claims were not clearly barred by immunity.

The appellants (majority directors) appealed a costs order of $213,380.64 made against them personally following an application by the respondents (minority directors).

The Court of Appeal upheld the quantum of costs but found the application judge erred in ordering costs against the directors personally without a finding of mala fides.

The court noted the corporation's constitution provided for indemnification of directors acting in the execution of their duties.

The appeal was allowed in part, varying the order to make the corporation responsible for the costs.