Robert J. Smith

The plaintiff, CPOS Inc., brought a motion for an injunction to compel the defendant, Brandon Hwon Munn Fong, to return and have confidential information professionally wiped from his electronic devices by a third party.

CPOS abandoned its claim of improper solicitation.

The court ordered Fong to describe and delete the documents himself, rejecting CPOS's request for third-party wiping.

This decision addresses the costs of that motion.

Fong sought substantial indemnity costs, arguing CPOS's motion was heavy-handed and unsuccessful on the key issue.

CPOS argued its conduct was not improper and the relief granted was more robust than Fong's offers.

The court found Fong substantially successful on the main issue of the wiping method.

Considering factors under Rule 57, including success, claims, complexity, and offers to settle, the court ordered CPOS to pay Fong costs on a liberal partial indemnity basis.

The defendants brought a motion for security for costs under Rule 56.01(1)(e) of the Rules of Civil Procedure, arguing the plaintiff's construction lien claims were frivolous and vexatious and that the plaintiff lacked sufficient assets in Ontario.

The court found the plaintiff's claim for an increased management fee was contradicted by its own communications and conduct, and its lien claim on a property completed eight years prior was without merit.

Finding the claims frivolous and vexatious, and noting the plaintiff's poor financial health and lack of proven assets, the court ordered the plaintiff to post $35,000 in security for costs in two installments and stayed the action pending payment.

Perley-Robertson, Hill, & McDougall LLP brought a motion seeking a finding of contempt against Grant Bourdeau, an officer and director of Acenzia Inc., for failing to comply with an order to attend an examination in aid of execution and produce documents.

The motion also sought a writ of sequestration against Acenzia Inc. The court found Bourdeau in contempt, ruling that he intentionally breached a clear and unequivocal order by refusing to answer questions and produce documents.

The court ordered Bourdeau to purge his contempt within 60 days by attending the examination, failing which he would face 30 days in jail.

Costs were awarded to the moving party.

The plaintiff, CPOS Inc., brought a motion seeking an order to compel the defendant, Brandon Hwon Munn Fong, to return and professionally wipe confidential information from his personal devices and email account.

The defendant agreed to search and delete the information but objected to an independent consultant performing the search.

The court dismissed the plaintiff's motion, finding no evidence of misuse of information by the defendant and stating that a detailed search of personal devices should not be ordered based on suspicion or speculation.

The court emphasized that such intrusive orders are reserved for exceptional circumstances with convincing evidence of intentional deletion of relevant information.

The court ordered the defendant to provide an affidavit listing documents, produce them upon request, and then delete them.

The applicant sought a declaration that $70,500 she advanced to the deceased was a loan payable by his estate, plus interest.

The estate disputed the claim, arguing insufficient corroboration under s. 13 of Ontario's Evidence Act due to lack of written documentation.

The court found sufficient corroboration through affidavit evidence from the deceased's brother and cousin, combined with financial records, concluding that the funds were indeed a loan.

The estate trustee was ordered to repay the loan with interest.

The applicant sought to set aside an arbitration award, arguing that the arbitrator breached procedural fairness by applying the doctrine of res judicata to prevent a limitation defence against a particularized counterclaim for negligence and breach of fiduciary duty.

The court found that the arbitrator's decision was a substantive legal one, not a procedural unfairness, and that the arbitration agreement precluded appeals on questions of law.

The application to set aside the award was dismissed.

The plaintiff brought an unopposed summary judgment motion against the defendant to determine the quantum of damages following a liability trial where the defendants were found liable for breach of confidence and misappropriating trade secrets.

Relying on uncontradicted expert evidence, the court found no genuine issue requiring a trial and awarded the plaintiff $776,000 in economic damages for lost sales and inability to increase prices, plus prejudgment interest and costs.

The accused was charged with 27 counts of fraud over $5,000 and obtaining money by false pretences.

He solicited $30,000 loans from multiple lenders for a real estate development, falsely promising them a security interest in specific townhouse units.

The accused misappropriated the funds to pay himself a salary and cover personal expenses, and the development failed, resulting in the loss of the lenders' investments.

The court found the accused guilty on all counts, concluding he knowingly made false representations and committed dishonest acts that put the lenders' economic interests at risk.

The defendant brought a motion under Rule 25.11 of the Rules of Civil Procedure to strike paragraphs of the statement of claim, arguing they were irrelevant, scandalous, or an abuse of process.

The challenged paragraphs pleaded that the plaintiff's sole director, Mr. Syed, suffered from bipolar disorder and was incapable of managing his affairs when an agreement of purchase and sale (APS) was signed.

The court granted leave for the plaintiff to amend the claim to plead that the defendant knew or ought to have known of Mr. Syed's mental incapacity and to describe him as the "directing mind" of the corporation.

However, the court limited the scope of mental health evidence to the relevant period of the transaction.

The motion to strike was partially granted with leave to amend, and partially dismissed, as the court found the law on corporate mental incapacity in contract was not sufficiently clear to strike the pleadings entirely.

The Regional Municipality of York brought an application for judicial review seeking mandamus after the Minister failed for several years to make a decision on its environmental assessment for a wastewater project.

After the application was commenced, the Ontario legislature passed legislation that effectively repealed the requirement for a decision and mandated a different wastewater solution, rendering the application moot.

The Divisional Court declined to exercise its discretion to hear the moot constitutional and administrative law issues.

However, due to the government's 'reprehensible' delay and 'egregious' conduct in covertly passing legislation to bypass the environmental assessment process, the court relieved the applicant from a prior agreement to waive costs and awarded the applicant its costs on a full indemnity basis.

The accused, David Wilson, brought an application to admit fresh evidence and seek a mistrial after being convicted of sexual touching but before sentencing.

The fresh evidence was his subsequent acquittal in a separate trial involving a similar fact witness (K.B.) who had testified in the initial trial.

The court considered whether the subsequent acquittal met the Palmer test for fresh evidence and whether the Supreme Court of Canada's decision in R. v. Mahalingan overruled the Ontario Court of Appeal's decision in R. v. G. (K.R.) regarding the retrospective application of issue estoppel.

The court found that Mahalingan did not overrule G. (K.R.) in this context, as the trial was not yet completed by sentencing.

The application to admit the fresh evidence was granted, and a mistrial was declared.

The respondents (moving parties) brought a motion to dismiss the applicants' application for judicial review of a decision to build a correctional facility in Kemptville, arguing the application was filed beyond the 30-day limitation period under the Judicial Review Procedure Act.

The applicants opposed the motion and sought an extension of time, arguing the decision was only communicated via a press release and town hall meeting without formal reasons.

The court found it was not plain and obvious that the application should be dismissed for delay, noting the unique circumstances, lack of formal reasons, and potential non-compliance with the Provincial Policy Statement regarding agricultural land.

The motion to dismiss was adjourned to be heard by a full panel of the Divisional Court.

The court-appointed Receiver and certain plaintiffs brought motions to interpret or amend a 2017 costs order made by Justice Kane.

The costs order, as drafted, appeared to make Carleton Condominium Corporation No. 396 (CCC 396) jointly and severally liable with the Burdet Group defendants to pay $410,000 in costs to the plaintiffs.

However, the same order also awarded CCC 396 $220,000 in costs payable by the plaintiffs.

The court found that the costs order contained an accidental omission and was inconsistent with Justice Kane's written costs decision.

Applying Rule 59.06 of the Rules of Civil Procedure, the court amended the costs order to explicitly exclude CCC 396 from the defendants liable to pay costs to the plaintiffs.

The plaintiff Trustee brought a motion for summary judgment to set aside a conveyance of property from the bankrupt defendant to a close family friend for $1.

The transfer occurred less than three months before the defendant filed for bankruptcy and shortly after she was ordered to pay costs in estate litigation.

The court found the transfer was made at undervalue to a non-arm's length party with the intent to defeat or delay creditors.

The motion was granted, and the conveyance was declared void under section 96(1) of the Bankruptcy and Insolvency Act.

The parties attended before the Divisional Court to advise that a conditional resolution had been reached in the application for judicial review.

On consent, the court adjourned the application to the next available date, to proceed only if the resolution is not completed.

No costs were ordered for the attendance.

The defendants brought a motion for summary judgment to dismiss the plaintiff's $226 million claim for fraud and intentional torts as statute-barred.

The parties met on a 'sugar daddy' dating website, and the plaintiff alleged the defendant lied about having cancer and a broken leg to avoid meeting him.

The court found the plaintiff's own emails demonstrated he knew of the alleged fraud and that a legal proceeding was an appropriate remedy more than two years before he commenced the action.

The motion was granted and the claim was dismissed with costs.

The court released an addendum to its reasons for decision dismissing the applicant's application for judicial review.

In the original decision, no costs were ordered because the panel had not received the parties' agreement on costs.

The parties subsequently advised the court that they had agreed the successful party would be entitled to $140,000 in costs.

The court varied its reasons to award the respondent $140,000 in costs.

The defendant, Andre Bluteau, brought a motion for summary judgment to dismiss the plaintiff, Julie Caron's, action for negligent legal advice.

Bluteau argued that Caron had signed a Full and Final Release covering all claims, including the negligence claim.

Caron contended that she only intended to release claims for costs and relied on doctrines of non est factum and duress, alleging verbal assurances that the release would not preclude a future negligence action.

The court applied principles of contractual interpretation to the Release, finding its terms clear and unequivocal.

The court dismissed Caron's hearsay evidence regarding verbal assurances and found no basis for non est factum or duress, as she had legal representation and ample time to consider the terms.

The motion for summary judgment was granted, dismissing the plaintiff's claim.

The applicant, a school board trustee, sought judicial review of the school board's decisions finding he breached the code of conduct, imposing sanctions, and confirming those decisions.

The breach involved extreme and disrespectful comments made during a debate on adding gender identity and expression to the code of conduct.

The Divisional Court dismissed the application, finding that the board had the authority to reconsider an initial vote that failed to find a breach, and that the subsequent decisions reasonably balanced the applicant's Charter rights with the board's statutory objectives to promote a positive and inclusive school climate.

The appellants appealed an interlocutory injunction restraining them from using the name 'Bombay Frankie' for their restaurant business.

The respondent had applied to register the trademark but had not yet opened a restaurant or established goodwill when the action commenced.

The Divisional Court allowed the appeal and vacated the injunction, finding the motion judge erred in principle by concluding there was a serious issue to be tried.

The court held that a mere trademark application does not confer a right to sue for infringement, and start-up activities do not establish the goodwill necessary for a passing-off claim.