Robert B. Cohen

Following the dismissal of the plaintiff's action for breach of fiduciary duty and knowing assistance, the defendants sought costs.

The Primary Defendants sought full indemnification pursuant to the plaintiff's corporate by-laws, while the Consultant Defendants sought full indemnity costs based on the plaintiff's unfounded allegations of dishonesty and self-dealing.

The court awarded the Primary Defendants full indemnification totaling over $9.4 million, finding no reason to depart from the by-laws.

The Consultant Defendants were awarded substantial indemnity costs of approximately $2.4 million, as the plaintiff's conduct in pursuing serious, unfounded allegations justified an elevated scale of costs.

The appeal concerned whether post-closing transactions triggered accelerated earn-out payment obligations under a share purchase agreement.

The court deferred to the application judge’s contractual interpretation and factual findings, concluding no trigger event requiring immediate full earn-out payment had been established.

The appeal was dismissed.

The Court of Appeal for Ontario dismissed the appeal from a judgment enforcing a settlement agreement in the context of a pending arbitration.

The appellants failed to pay the agreed amount by the deadline, triggering a penalty clause.

The court found no error in the application judge’s decision to proceed by application rather than action, in the finding that the respondents had not breached their obligations of good faith, or in the enforcement of the penalty clause.

The appeal was dismissed and costs awarded to the respondents.

The applicant, Project Freeway Inc., sold shares of a business to the respondent, ABC Technologies Inc., under a share purchase agreement that included an earn-out provision.

The agreement contained an acceleration clause that would trigger immediate payment of the full earn-out if the respondent sold a material portion of the business's assets.

Following the transaction, the respondent entered into sale-leaseback transactions for real property and a factoring arrangement for accounts receivable.

The applicant argued these transactions triggered the acceleration clause, but the court found that these were ordinary course financing transactions that did not impact the earn-out targets.

Consequently, the court dismissed the application and ordered the applicant to pay costs.

The Estate of William Waters sought the return of over $30 million advanced by the deceased to his wife's personal support worker, Gillian Henry, over a ten-year period.

The Estate argued the funds were investments held on resulting trust, while Henry maintained they were gifts made during a secret intimate relationship.

The court found that the deceased, a sophisticated businessman, intended most of the advances as gifts, except for funds invested in a horse stable business (King of Hearts), which were held on resulting trust.

The court also found that the deceased improperly gifted $2.85 million of his incapacitated wife's money to Henry, which constituted unjust enrichment and must be returned.

Henry's counterclaim for sexual battery was dismissed due to lack of credibility and absence of corroboration required under the Evidence Act.

The defendants brought a motion under Rule 49.09 to enforce an alleged settlement agreement between themselves, the plaintiffs, and the third parties regarding the sale of a franchise business.

The court found that the communications between counsel, including an unsigned draft Minutes of Settlement, amounted only to a framework or an agreement to agree, particularly since the third parties had not committed to purchasing the assets.

The motion to enforce the settlement and for injunctive relief against the plaintiff was dismissed.

The Métis National Council Secretariat Inc. (MNC) brought a motion seeking joint custody of funds and an online database, and disclosure of records from the Manitoba Métis Federation Inc. (MMF).

While the parties largely resolved the substantive issues by consent, they could not agree on costs.

The court found MMF overwhelmingly successful on the motion, as MNC failed to obtain the extraordinary relief it sought, and the modest relief obtained by consent would likely have been provided voluntarily.

The court awarded MMF partial indemnity costs of $213,687.57, finding the amount reasonable and proportionate given the complexity and importance of the motion and the reasonable expectations of the parties.

The plaintiff and several defendants brought cross-motions to compel answers to undertakings, questions taken under advisement, and refusals from examinations for discovery.

The underlying action involves allegations by the plaintiff that the defendants engaged in a plan to cause financial harm and confer unlawful benefits upon their departure from the organization.

The court applied principles of relevance and proportionality, ordering the parties to answer certain questions and fulfill specific undertakings while upholding refusals for questions that were irrelevant, disproportionate, or improper.

The appellant, Interhealth Canada Limited, appealed a trial decision dismissing its claims against its former CEO, Michael O’Keefe, and Canadian Hospitals Network International Inc. (CHNI) for breach of fiduciary duty and diversion of corporate opportunities.

The appellant alleged O’Keefe diverted two maturing opportunities (HIH Opportunity and Cromwell Opportunity) to CHNI after his resignation.

The appeal also raised process-related issues, including a "trial by stopwatch" and the dismissal of a recall motion.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the opportunities did not fairly belong to the appellant and were fundamentally different from those the appellant pursued.

The court also found no prejudice from the trial management and upheld the recall motion dismissal.

The appellants sought to enforce an alleged oral agreement to purchase a family home from the respondent.

The trial judge dismissed the action, finding no enforceable agreement due to a lack of agreement on the fundamental term of price.

The appellants argued this finding was a palpable and overriding error, asserting the price was $850,000 and the dispute was merely over a $100,000 gift/discount.

The Court of Appeal upheld the trial judge's finding, agreeing that an objective, reasonable bystander would conclude the parties had not agreed on the purchase price, as the $100,000 difference was material.

The appeal was dismissed.

This appeal concerned the application of s. 5(1)(a)(iv) of the Limitations Act, 2002, specifically when the respondent knew that a proceeding would be an appropriate means to seek a remedy for unpaid invoices.

The appellant, a condominium corporation, argued the action was time-barred, asserting the trial judge erred in applying discoverability principles and finding a running account.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the limitation period began when the respondent was informed the condominium corporation was not obligated to pay invoices, rather than earlier.

The court upheld the running account finding and the application of discoverability principles, noting the defendant's assurances delayed the plaintiff's understanding of the need for litigation.

The plaintiff corporation sued its former CEO and director, alleging he breached his fiduciary duties by resigning to usurp lucrative hospital management opportunities in London and Abu Dhabi for his own benefit through a new corporate entity.

Following a four-week trial, the court dismissed the action, finding that the opportunities in question were not mature, were not in the plaintiff's direct line of business, and were not available to the plaintiff due to a lack of trust from the contracting parties.

The court concluded that the opportunities arose from the defendant's personal relationships and professional reputation, and therefore did not fairly belong to the plaintiff.

The appellant, Kenaidan Contracting Ltd., brought an appeal from an order of the Superior Court of Justice.

The appeal was dismissed by consent of the parties, with no order as to costs.

The appellant tenant appealed a decision finding it had not validly exercised its option to renew a commercial lease and denying relief from forfeiture.

The tenant argued the landlord waived the requirement for written notice of renewal through email negotiations about rent.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that the landlord did not waive strict compliance with the renewal provision and that the tenant's conduct—including hedging its bets on renewal and paying rent late—did not warrant equitable relief from forfeiture.

Kenaidan Contracting Limited and Bouygues Building Canada Inc. (BKJV) brought a motion for security for costs against Lancaster Group Inc. in a construction lien action.

The court granted leave for the motion under section 67(2) of the Construction Lien Act, finding that BKJV had demonstrated indicia of instability regarding Lancaster's financial health, supported by an Equifax report.

Lancaster failed to provide clear and convincing evidence of sufficient appropriate assets to satisfy an adverse costs order, as its claimed assets were either held by a separate, related entity or encumbered by secured creditors.

Considering the overall justice of the case, including the absence of an impecuniosity claim by Lancaster and the "soft" nature of BKJV's counterclaim, the court ordered Lancaster to pay $60,000 into court as security for costs up to the end of oral discoveries, with the possibility of further security for later stages.

This is an appeal from a trial judge's decision to discharge a mortgage.

The appellant claimed a loan was secured by a mortgage on the respondent's home, which was later re-loaned but remained secured.

The trial judge, unable to determine witness credibility, relied on documentary evidence to find the mortgage had been repaid and effectively redeemed.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the issue of redemption was properly before the court via counterclaim, that the appellant waived technical compliance by admitting repayment, and that the trial judge was entitled to rely on documentary evidence given credibility issues.

The appellant estate appealed a trial judgment that found a funding option in a joint venture agreement for a condominium development to be legally unenforceable due to uncertainty.

The appellant also appealed the trial judge's determination that the valuation date for the sale of the respondent's shares, ordered as an oppression remedy, should be the date of the trial reasons rather than the date the proceedings commenced.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions that the funding option lacked essential terms and that the chosen valuation date was the fairest in the circumstances.

The plaintiff, Kenaidan Contracting Ltd., brought a defamation claim against Lancaster Group Inc. and its officers for statements made in an open letter to the City of Hamilton and subsequent media interviews regarding alleged mismanagement of a Pan Am Games construction project and unpaid invoices.

The defendants brought an anti-SLAPP motion under section 137.1 of the Courts of Justice Act to dismiss the defamation claim.

The court found that the defendants' expressions related to a matter of public interest.

While the plaintiff's defamation claim had substantial merit, the defendants successfully demonstrated valid defences of justification and fair comment regarding the alleged mismanagement and outstanding payments.

The court also found that the harm suffered by the plaintiff was not sufficiently serious to outweigh the public interest in protecting the expression, especially considering the plaintiff's prior self-inflicted reputational damage and the nature of the allegations.

The motion to dismiss the defamation proceedings was granted.

The plaintiff sought to discharge a $220,000 mortgage registered against his property, claiming the funds were never advanced by the defendant.

The defendant counterclaimed for possession, alleging the funds were advanced in cash to the plaintiff's relative in Iran and by paying off credit card debt.

The court found significant credibility issues with all witnesses but relied on documentary evidence showing the defendant received over $220,000 in transfers from Iran, which he acknowledged was sufficient to discharge the mortgage.

The court ordered the mortgage discharged, finding it was effectively redeemed when the defendant received those funds.

The defendants brought a motion seeking to strike the plaintiff's claim against an individual defendant (Sam Mizrahi) for breach of contract and unjust enrichment, an order requiring the plaintiff and its employee to undertake not to interfere with the defendants' economic relations, and security for costs.

The court granted the motion to strike the claim against the individual defendant without leave to amend, finding no reasonable cause of action and that it was frivolous/vexatious.

The motion for injunctive relief was dismissed as there was no underlying cause of action.

Security for costs was granted in the amount of $200,000, payable in installments.