Ren Bucholz

The defendants moved to strike the plaintiff's claim for abuse of process, arguing that the prior decision in Leavens v. Schwartz (the "Shotgun Decision") had finally disposed of the matter.

The plaintiff sought to challenge a buy/sell transaction that had been enforced by the court, alleging that the defendants had engaged in a secret investment arrangement with third-party financiers without disclosure.

The court found that the claim constituted an abuse of process because the underlying subject matter was identical to the prior proceeding, the issues could have been raised before the prior judge, and the plaintiff was essentially seeking to undo a final court decision with which he was dissatisfied.

The court struck the claim without leave to amend.

This costs endorsement followed a decision on an appeal and cross-appeal.

Given the divided success of the parties on both the appeal and cross-appeal, the Court of Appeal ordered that each party bear its own costs.

The parties entered into a contract in 1999 for the provision of market pricing data.

The appellant, a custodial bank, redistributed the data to its numerous affiliates without authorization.

The respondent discovered the breach in 2016 and sued.

The trial judge found the appellant breached the contract and awarded damages based on a rateable approach, but also awarded damages for sharing data with a specific affiliate.

On appeal, the Court of Appeal upheld the liability finding, concluding the contract only authorized the appellant itself to access the data.

The Court also upheld the trial judge's decision to change his unentered judgment and rejected the appellant's limitations defence.

On damages, the Court struck the award relating to the specific affiliate as double compensation but otherwise upheld the damages assessment, including an adverse inference drawn against the appellant for spoliation of evidence.

The defendants brought a motion to strike the plaintiffs' pleadings and dismiss the action due to the plaintiffs' abusive and vexatious conduct, including repeated breaches of court orders and failure to pay $145,000 in outstanding cost orders.

The court found the plaintiffs, particularly Andrew Rogerson (a self-represented barrister), had flagrantly disregarded court orders, delayed the action, and consumed excessive judicial resources.

Despite the minor plaintiff's claim, the court balanced the need for adjudication on merits against the undermining of justice.

The motion was granted, staying the action immediately, with a condition that pleadings would be struck and the action dismissed if the outstanding costs were not paid within 30 days.

NWG Investments Inc. appealed the motion judge's dismissal of its 2014 action for delay, which stemmed from events in 2007-2008.

The motion judge found the delay inordinate, inexcusable, and prejudicial.

NWG challenged only the finding of prejudice.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's assessment of prejudice, which included factors like document availability, witness relevance, and memory.

The court reiterated the plaintiff's obligation to move an action expeditiously and rejected the argument that the decision rewarded defendants for "lying in the weeds."

The appellant sought a review of a single judge's order refusing to stay a case management judge's order pending appeal and refusing to stay other proceedings.

The respondents brought a motion to quash the appeal for lack of jurisdiction.

The Court of Appeal dismissed the appellant's request for review, finding no error in the motion judge's application of the stay principles, particularly regarding the lack of a serious issue given the case management judge's lack of jurisdiction to grant criminal declarations in a civil action.

The Court also granted the respondents' motion to quash the appeal, confirming that the case management judge's order was interlocutory and thus appealable to the Divisional Court, not the Court of Appeal.

The plaintiff sought the continuation of an interim Mareva injunction against multiple defendants, alleging fraud and dissipation of assets.

The court found an overwhelming case of fraud by Stephen Lee Heimbecker and Nestig Inc., and a prima facie case of joint participation, willful blindness, or assistance in the fraud by Joanna Marie Heimbecker and Keystone Capital Inc. The court determined that irreparable harm would occur without the injunction and that the balance of convenience favored the plaintiff.

The court granted the interlocutory Mareva Order, including the release of certain frozen funds to the plaintiff.

The court rejected Joanna Marie Heimbecker's requests to open a new bank account for future employment income and to sell jewellery for legal expenses and tuition, citing a lack of complete and accurate financial disclosure and serious inconsistencies.

The court also declined to reduce the living expense exemption for the Heimbeckers at this stage but left open the possibility if disclosure issues persist.

The defendants brought a motion to dismiss the plaintiff's $1.2 billion action for delay under Rule 24.01 of the Rules of Civil Procedure.

The action, alleging fraudulent and negligent misrepresentation regarding a 2007 mining transaction, was commenced in Ontario in 2014 but remained at the pleadings stage.

The court found the delay of over eight years to be inordinate and inexcusable, rejecting the plaintiff's explanations regarding replacement of counsel, the pandemic, and health issues.

The court concluded that the delay caused actual prejudice to the defendants due to faded memories, the death of a key witness, and the potential loss of documentary evidence, thereby risking a fair trial.

The action was dismissed.

The plaintiff, Bradley J. Grant Investments Inc. (Grant), brought a motion for interim Mareva and Norwich orders against Nestig Inc. and Stephen Lee Heimbecker, along with other related parties.

Grant alleged a fraud exceeding $51 million, breach of contract, and breach of fiduciary duty, claiming that Heimbecker induced advances for specific investments but failed to provide documentation or repay funds.

Heimbecker contended the relationship was a simple debt evidenced by promissory notes and denied fraud.

The court found Grant established a strong prima facie case of fraud, breach of trust, and/or breach of fiduciary duty, primarily due to Heimbecker's failure to disclose the use of advanced funds.

The court also found a serious risk of asset dissipation, noting Heimbecker's liquidation of assets (racehorses, farm, home) and potential relocation.

The interim Mareva injunction was granted to preserve assets, and the Norwich order was granted to compel financial institutions to disclose information, as Heimbecker was the only practical source and had refused disclosure.

During a trial of an issue on damages arising from an application, the applicant objected to numerous pieces of viva voce evidence introduced by the respondents.

The court had previously directed that the damages trial proceed on the closed record as it existed when the application was initially argued.

The court applied a bright-line test, ruling that any evidence not actually found in the underlying application record was inadmissible to prevent trial by ambush.

The court sustained the majority of the applicant's objections, rejecting the respondents' arguments that the new evidence was merely a permissible amplification of the existing record or a necessary response to the applicant's expert.

The appellant, Glassdoor Inc., appealed a motion judge's order denying its anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action.

The action stemmed from an anonymous critical employee review posted on Glassdoor's website about the respondent, Echelon Environmental Inc. The appellant argued the review related to a matter of public interest.

The Court of Appeal upheld the motion judge's finding that the review, concerning private complaints about a company providing specialized services to a small number of customers, did not relate to a matter of public interest.

The appeal was dismissed, and leave to appeal the costs order was also dismissed.

The Respondents brought a motion seeking the recusal of the presiding judge and a declaration of mistrial, alleging a reasonable apprehension of bias.

The allegations stemmed from the judge's conduct and rulings in three prior decisions related to the ongoing application, specifically claiming predisposition towards the Applicant, disparagement of the Respondents, and insinuation into the appeal process.

The Court dismissed the motion, finding that, when viewed realistically and in full context, the judge's actions did not give rise to a reasonable apprehension of bias.

The decision emphasized that adverse rulings, even if potentially erroneous, do not equate to bias and should be addressed through the appeal process.

Costs were awarded to the Applicant.

The court dismissed two motions seeking to consolidate other proceedings with a main action scheduled for trial.

The first motion, brought by the defendants, sought to consolidate the main action with a separate claim against former employees for breach of fiduciary duty (the "Brampton action").

The second motion, brought by 320 Bronte Road Inc., sought to consolidate its newly commenced action (alleging misconduct by the plaintiffs) and the Brampton action with the main proceeding.

The court found that the issues in the various proceedings were distinct, and consolidation would cause significant delays to the fixed trial date.

It concluded that any theoretical benefits of judicial economy or avoiding inconsistent findings were outweighed by the practical concerns of delay and managing unwieldy, disparate claims.

The court also criticized 320 Bronte Road Inc. for failing to follow proper Commercial List scheduling protocols.

The applicant sought to vary a previous judgment regarding contract beneficiaries and liability for knowing receipt.

The court declined to change the finding on beneficiaries (para 19) as it was an intentional commercial interpretation.

The court did remove an erroneous finding of breach of contract against CIBC Mellon, but declined to substitute it with a finding of knowing receipt, as that relief was not sought in the initial application.

The court granted the applicant's request to introduce evidence of damages related to data sharing by all custodial entities of Mellon Financial Corporation at the time of the agreement, despite the previous finding that those entities were entitled to receive the data.

The Court of Appeal heard a motion to review a single motion judge's order that dismissed requests to expedite an appeal and waive the requirement to file a formal liability order.

The panel upheld the motion judge's decision not to expedite the appeal, finding no error in principle or misapprehension of evidence.

However, the panel varied the order to relieve the moving parties from the obligation of filing a formal liability order to perfect their appeal, noting that the liability order was a final order.

The motion was otherwise dismissed, and costs were fixed to be awarded to the successful party on the appeal.

The appellants moved to expedite their appeal of a liability decision and to be relieved from filing a formal order, arguing that an early appeal could render a subsequent damages trial unnecessary.

The respondent opposed, contending that the appeal should not be scheduled until the damages trial was adjudicated, allowing for a single, comprehensive appeal.

The court dismissed the motion, emphasizing the principle of judicial economy and the ordinary practice of pursuing a single appeal encompassing both liability and damages.

The court found that fragmenting the appeal would likely delay the overall administration of justice and that any potential costs thrown away could be addressed in a costs award.

The respondents in the underlying application (BNY) brought a motion to adjourn a damages trial until after the disposition of their pending appeal on liability, to adduce further evidence, and to settle the form of judgment on liability.

The court had previously found BNY liable for breach of contract and ordered a viva voce trial on damages due to the complexity of the record.

The court dismissed the motion, finding that an adjournment would effectively impose a bifurcation not agreed to by the parties, contrary to Rule 6.1.01, and that the balance of convenience favoured proceeding with the damages trial to allow a single appeal on both liability and damages.

The court also declined to allow new evidence or settle the form of judgment at this stage.

The applicant claimed damages of over $889 million for breach of two Data Services Agreements, alleging the respondents improperly shared market pricing data within their corporate group.

The respondents argued the agreements allowed sharing across their 'line of business' or brand.

The court found the respondents breached the agreements, as the contracts, factual matrix, and parties' conduct indicated the data was restricted to the named entities.

Defences of waiver, estoppel, and limitation periods were dismissed.

However, the court found the paper record insufficient to assess damages and directed the issue of damages to a trial.

The parties were involved in a family law dispute over custody and access.

The applicant obtained an ex parte Anton Piller order and an order for supervised access based on evidence from a witness (C.B.W.) alleging the respondent solicited sexual services from minors.

The respondent brought a motion to question C.B.W. before filing responding evidence, citing concerns about self-incrimination in an ongoing police investigation.

The applicant brought a cross-motion to compel the respondent to file responding evidence and attend questioning.

The court dismissed the respondent's motion, finding it would be unfair to allow questioning without reply evidence.

The court granted the applicant's motion, ordering the respondent to file responding affidavits and attend questioning, holding that the best interests of the child outweighed the respondent's self-incrimination concerns.

The plaintiffs filed affidavits containing confidential information about a minor child (Student Q) and her family, breaching a prior confidentiality order (Penny Order).

The defendants and Student Q's family successfully moved to have these affidavits removed/redacted.

This endorsement addresses the costs of that motion.

The court found the plaintiffs' conduct reprehensible and deserving of reprimand, rejecting their arguments of inadvertence and access to justice without evidence of impecuniosity.

Substantial indemnity costs were awarded to Student Q's family, and reduced costs to the defendants, totaling $41,633.44, payable by the plaintiffs.