Robert Bevan Brooksbank

A payment processing company appealed sanctions imposed after it was found in civil contempt for repeatedly obstructing a court-ordered audit obtained by mandatory injunction under a commercial services agreement.

The appellant argued the penalties were disproportionate, challenged the direction to pay audit costs into court, and sought leave to appeal the contempt-motion costs order.

The Court of Appeal dismissed the appeal, holding the arguments depended on unappealed factual findings that the appellant intentionally obstructed the audit and that no basis existed to interfere with the sanctions or the costs order.

The court allowed the cross-appeal, holding that r. 60.11(6) of the Rules of Civil Procedure is not confined to cases where the officer or director has already been found personally in contempt, and remitted the issue of joint and several liability of the sole officer and director for redetermination.

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.

A defendant sought to vary a Mareva injunction and Norwich order granted in connection with allegations of a fraudulent scheme involving the misappropriation of public funds earmarked for homelessness relief.

The defendant sought to exclude future income from the Mareva Order's scope, obtain monthly releases for living expenses and a one-time release for outstanding debts, remove the passport surrender requirement, and remove a phone number from the Norwich Order.

The court dismissed all aspects of the motion, finding the defendant had not met the required test for varying the Mareva Order due to lack of full and frank disclosure, and that the passport requirement and Norwich Order remained appropriate given the circumstances.

The court considered whether Ontario had jurisdiction over a claim by Grand HVAC Leasing Ltd. against four Alberta-based defendants who guaranteed the obligations of Boaz Pharmaceuticals Inc. under equipment leases.

The court found that the guarantees were not made in Ontario, and that there was no real and substantial connection between Ontario and the dispute.

Even if jurisdiction existed, the court would have stayed the action in favour of Alberta as the more appropriate forum.

The claim was stayed, and costs were awarded to the defendants.

The Plaintiffs moved to strike the Defendants' Amended Statement of Defence and Counterclaim for non-compliance with a prior contempt order, which required payment of a fine and costs.

The court found the Defendants' failure to comply was deliberate and their explanations for non-payment were not credible.

Applying the factors from *Falcon Lumber* and principles from *Rana v. Unifund Assurance Company*, the court determined that striking the pleadings was necessary to uphold court orders and ensure the fair administration of justice, given the Defendants' pattern of non-compliance and attempts to renegotiate orders.

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 appellant appealed the dismissal of his oppression application, where the application judge found he was not a beneficial shareholder of the respondent corporations.

The application judge had concluded that an earlier agreement granting the appellant a 9% interest was mutually rescinded when a portion of the corporate group was sold.

The Divisional Court allowed the appeal, finding it procedurally unfair to decide the case on the unpleaded and unargued theory of mutual rescission.

Furthermore, the court found no factual or legal basis for mutual rescission, concluding the appellant remained a 9% beneficial shareholder entitled to his share of the sale proceeds.

This case concerns the contractual interpretation of a "Life of Mine" supply agreement for liquid sodium cyanide between Kinross (as buyer) and Cyanco (as seller).

Kinross sought a declaration that the agreement did not preclude it from sourcing solid sodium cyanide from other suppliers and converting it to liquid for its mining operations.

The court dismissed Kinross's claim, finding that such an action would conflict with the agreement's terms, which established Cyanco as the sole supplier of liquid sodium cyanide required by Kinross's mines for their operations.

The court emphasized reading the contract as a whole, giving words their ordinary meaning, and considering commercial reasonableness.

The moving parties sought leave to appeal an order of Conway J. The Divisional Court dismissed the motion for leave to appeal.

No costs were awarded as the responding parties failed to file a costs outline.

The applicant, Don Bernier, brought an oppression application under the Ontario Business Corporations Act, asserting he was a beneficial and equitable shareholder of Skilcor Food Products Inc. and La Riberie Inc. at the time of their 2017 sales, and was denied his shareholder entitlement.

The respondents denied his shareholder status.

The court found that while an oral agreement for a 9% interest in a "Consolidated group" (Skilcor food assets, La Riberie, and Northbud) existed prior to 2010, this agreement was mutually rescinded by the parties' subsequent conduct, specifically the sale and winding-up of Northbud in 2013.

This rendered the original agreement inoperative as Bernier no longer had the equity contribution (Northbud shares) upon which his interest was based.

The court concluded Bernier was not a shareholder of Skilcor or La Riberie at the time of the sales and therefore lacked standing to bring an oppression claim.

The application was dismissed.

The plaintiffs brought a motion for penalty after the defendants were found in civil contempt for breaching a Mareva Order by placing a mortgage on a property and collecting rent.

The plaintiffs sought a 120-day term of imprisonment and the striking of the defendants' pleadings.

The court declined to order imprisonment, finding it disproportionate to the discrete acts of contempt.

Instead, the court ordered the defendants to pay a $35,000 fine and outstanding costs of $15,474.32 within 60 days, failing which their statement of defence and counterclaim would be struck.

Centurion Mortgage Capital Corporation brought a motion for determination of a mortgage priority dispute with The Guarantee Company of North America (GCNA) regarding a condominium development project.

The court found that counsel for both parties had agreed in May 2016 that Centurion's mortgage would have priority over GCNA's mortgage, except with respect to purchasers' deposits.

The court also held that GCNA was precluded by proprietary estoppel from relying on a registered postponement acknowledgment to assert priority over Centurion's mortgage.

The court declared Centurion's mortgage subordinate only with respect to deposits and ordered the deletion of the postponement acknowledgment from title.

The Plaintiffs brought a motion for contempt against the Defendants for breaching a Mareva Order and a Continuation Order.

The Defendants had encumbered a property, which was subject to the orders, with a mortgage and dissipated rental income without informing the Plaintiffs or their own counsel.

The Defendants argued they acted innocently and that the Mareva Order was obtained with "unclean hands." The court applied the three-part test for civil contempt, finding that the orders were clear, the Defendants had actual knowledge, and their actions were intentional.

The court rejected the Defendants' explanations as incredible given their real estate experience and found them in contempt beyond a reasonable doubt.

The court ordered an accounting and tracing of funds and scheduled a hearing for remedies.

FCA Canada Inc. applied to set aside an arbitration award that ordered it to remove and replace an aftermarket remote starter in Christine Lamontagne's vehicle.

The arbitrator found a "Current Defect" in the vehicle and ordered the remedy.

FCA argued the arbitrator lacked jurisdiction or exceeded his authority, and that the finding of a defect was unreasonable.

The court dismissed FCA's application, finding that FCA waived its right to object to jurisdiction by not raising it promptly as a preliminary issue, and that the arbitrator's decision on the merits was reasonable and within the scope of the arbitration agreement.

The plaintiff landlord brought a motion for summary judgment for rental arrears against the tenant, Nightingale HealtheNet Canada Corporation (NHCC), and its parent company, Nightingale Informatix Corporation (NIC).

The plaintiff argued that NIC was liable based on equitable assignment or part performance, as NIC had paid rent for NHCC for a period after NHCC became financially unviable.

The court granted summary judgment against NHCC but dismissed the claim against NIC, finding no written agreement, guarantee, or sufficient acts of part performance to bind the parent company to the lease obligations.

The court also declined to pierce the corporate veil.