Ronald Flom

The moving parties brought a motion for leave to appeal the decision of Koehnen J. dated June 13, 2024.

The Divisional Court denied the motion for leave to appeal and made no order as to costs.

The plaintiffs brought a motion for leave to issue a Certificate of Pending Litigation (CPL) over a commercial development property, claiming a 10% beneficial interest based on alleged oral agreements and financial contributions.

The defendants opposed, disputing the existence of a binding agreement or trust.

The court found a triable issue regarding the plaintiffs' claim to an interest in the property, satisfying the initial low evidentiary threshold for a CPL.

However, after balancing the equities, the court exercised its discretion to deny the CPL.

The court reasoned that the property was acquired for profit, making damages a satisfactory and calculable remedy, and that the property was not unique.

Furthermore, the CPL would act as an injunction, causing greater harm and inconvenience to the defendants by delaying development and sale while they remained responsible for carrying costs.

This is an appeal from a trial judgment finding the plaintiff, Cassandra Amerato, was wrongly dismissed.

The employer, TST-CF Solutions LP, appealed, arguing the trial judge misapprehended evidence regarding termination and erred in damage calculation.

Ms. Amerato cross-appealed for lost vacation pay.

The Court of Appeal dismissed the employer's appeal, upholding the finding of termination and the damage calculation method.

The court allowed Ms. Amerato's cross-appeal, finding the trial judge misunderstood evidence regarding vacation pay entitlement under the Canada Labour Code, and awarded the claimed amount.

The appellant, Siavash Taheri, appealed a judgment ordering him to pay the respondent, Sina Akhavan, over $2.4 million based on promissory notes.

Taheri argued the trial judge erred in finding two separate loans instead of one, and that the trial transcript quality prevented proper appellate review.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual and credibility findings, and that the transcript deficiencies did not impede review or cause a miscarriage of justice.

The plaintiff, a 16-year employee on long-term disability, was advised her employment was terminated due to corporate restructuring and offered a demoted position at a lower salary.

She accepted the new position to mitigate her damages and sued for wrongful dismissal.

On a motion for summary judgment, the court found she was wrongfully dismissed and awarded 18 months' notice based on her pre-termination salary.

The court held that the employer was not entitled to deduct the long-term disability benefits from the damages award because the plaintiff had contributed to the insurance premiums.

Claims for bad faith and discrimination damages were dismissed.

The 87-year-old defendant, who had significant health issues, brought a motion to give his evidence before trial outside of court and to present his evidence-in-chief by way of affidavit.

The plaintiff consented to the pre-trial video examination but opposed the use of an affidavit, arguing it would be 'counsel created evidence' and unfair in a case where credibility was central.

The court granted the motion, finding that the plaintiff's concerns could be adequately addressed through cross-examination and that the accommodation was appropriate given the defendant's health.

The plaintiff brought a motion for answers to undertakings and refusals in the context of a construction lien action.

The motion was dismissed, and the parties submitted written arguments regarding costs.

The defendant, having been entirely successful, sought costs of $5,674.94 on a partial indemnity basis.

The court reviewed the factors under section 131 of the Courts of Justice Act and Rule 57.01, reduced the defendant's attendance fee, and fixed costs payable by the plaintiff to the defendant at $5,074.94.

The appellant was successful in an oppression action against the respondents.

The respondents had served an offer to settle nine calendar days before trial, which technically amounted to fewer than seven days under the Rules of Civil Procedure.

The trial judge treated the offer as a valid Rule 49 offer and awarded costs accordingly.

On appeal, the Court of Appeal held that the 'no near miss' policy applies to the timing requirement under rule 49.03, meaning the offer was not a valid Rule 49 offer.

However, the Court upheld the costs award, finding that the trial judge was entitled to take the offer into account under his residual discretion pursuant to rule 49.13.

Following a partial appeal reducing damages and prejudgment interest in an oppression action, the court reconsidered the quantum of trial costs and the cost consequences of a pre-trial offer to settle.

The court held that, once the amended judgment and pre-offer costs were compared to the offer, the plaintiff had obtained a result less favourable than the offer.

Rule 49.10 was therefore engaged.

However, because of the defendants' conduct previously found to justify elevated costs, the court ordered substantial indemnity costs in favour of the plaintiff to the date of the offer, partial indemnity costs to the defendants thereafter, and netted the awards.

The defendants also received costs of the rehearing.

The respondent, a silent investor in a private company, brought an oppression action against the managing directors for awarding themselves excessive compensation and failing to provide financial disclosure.

The trial judge found the directors liable for oppression and awarded damages and substantial indemnity costs.

On appeal, the Court of Appeal upheld the findings of oppression and the scale of costs, but found the trial judge erred by not calculating the excess compensation on a net basis over the entire 22-year period, which would have credited the directors for under-compensation in the company's early years.

The Court reduced the damages award from $250,000 to $187,453.51 and remitted the quantum of costs to the trial judge for reconsideration in light of a Rule 49 offer to settle.

The plaintiff brought a motion for partial summary judgment alleging civil fraud arising from altered trust ledger statements relating to land transfer tax amounts in three condominium transactions.

The moving party alleged the defendant misrepresented tax amounts, resulting in a $40,000 discrepancy and sought damages, tracing, and disgorgement.

The court found that the defendant had made a false representation and knew it was false, but determined that the plaintiff failed to establish the required element of loss because the $40,000 had been repaid pursuant to a certified cheque delivered in connection with criminal proceedings.

As a result, the claim for repayment of the $40,000 could not succeed on summary judgment.

Remaining claims, including disgorgement and related relief, were left to be determined at trial.

Following the appointment of a receiver over corporate defendants’ books and records in a commercial dispute involving alleged fraud and breach of agreements, the court determined the quantum of costs payable to the successful plaintiff.

The plaintiff sought partial indemnity costs exceeding $298,000, including substantial disbursements for forensic accounting services.

The defendants challenged the reasonableness of the fees and argued certain expert-related disbursements were not recoverable.

The court held that detailed cost outlines rather than docket production were sufficient, emphasized that costs must be fair and reasonable to the unsuccessful party under Rule 57.01(1), and confirmed that expert forensic accounting fees were recoverable.

Costs were fixed at $180,000 plus HST for fees and $67,566.14 for disbursements, payable jointly and severally by the defendants.

Following a trial where the plaintiff was awarded $250,000 in damages for oppression, the court determined the issues of prejudgment interest and costs.

The court rejected the plaintiff's expert calculation for prejudgment interest, instead applying the Courts of Justice Act rate from the date the cause of action arose.

The court awarded the plaintiff substantial indemnity costs, finding the defendants' conduct in taking excess compensation and deliberately withholding information to be egregious and reprehensible.

The defendants' Rule 49 offer did not apply because the judgment, which included substantial indemnity costs, was more favourable than the offer.

Costs were fixed at $413,000.

The plaintiff moved for the appointment of a receiver over the books and records of several corporate defendants following loans exceeding USD $111 million for casino and gaming ventures in Jamaica and the Dominican Republic.

The defendants failed to provide required financial reporting, access to records, and audited statements despite contractual obligations and prior court orders.

Evidence indicated possible fraudulent reporting, significant discrepancies in financial information, and unexplained diversion of approximately $50 million to related entities.

The court held that the defendants had repeatedly obstructed access to records and that the circumstances justified the equitable appointment of a receiver to secure and review corporate books and records.

The motion was granted.

In a shareholders’ dispute involving a corporation operating casinos abroad, the applicant sought interim injunctive relief against a trustee holding shares as bare trustee for the applicant and another beneficial owner.

The trustee refused to transfer the shares, asserting the beneficial owners were defaulting shareholders under a shareholders’ agreement and therefore could not exercise shareholder rights.

Applying the test in RJR-MacDonald Inc. v. Canada (A.G.), the court found a serious issue to be tried regarding whether the trustee breached fiduciary duties by asserting personal shareholder rights in conflict with his obligations as trustee.

The court also found risk of irreparable harm if the trustee continued acting as though the beneficial owners had no rights.

Interim orders were granted restraining the trustee from exercising rights attached to the trust shares and directing cooperation among the shareholders to maintain ordinary course operations pending the hearing of the application.

The defendants moved to set aside ex parte Anton Piller orders and Mareva injunctions obtained by the plaintiff in a fraud action involving alleged misappropriation of corporate funds and improper commissions.

The court reviewed the strict legal requirements for such extraordinary remedies and emphasized the obligation of full, fair, and frank disclosure on without‑notice motions.

It found the plaintiff failed to disclose material facts, including ongoing communications with certain defendants, repayment negotiations, employment relationships, and other contextual facts that could have influenced the original decision.

The court also found insufficient evidence that certain defendants possessed incriminating documents or posed a real risk of asset dissipation.

As a result, the Anton Piller orders and Mareva injunctions were set aside against all defendants.

A related motion by one defendant to strike portions of the statement of claim was dismissed.

Dispute arising after the sale of a jointly owned apartment building pursuant to a partition order.

The applicant purchased the property from the respondent co-owners and the parties disagreed over responsibility for the real estate commission and the fees of an independent lawyer appointed to oversee the sale process.

The court held that the agreement of purchase and sale made the respondent vendors solely responsible for the real estate commission, despite earlier sale conditions contemplating shared responsibility.

However, the court found the applicant remained obligated to pay its 25% share of the independent lawyer’s post‑agreement fees because the lawyer had been appointed to act impartially for the benefit of all partners.

An order was made directing payment of the applicant’s share of those fees from escrow funds.

The appellants appealed a trial judgment regarding a gas contract dispute, arguing errors in the limitation period, mitigation, contract renewal, and costs.

The respondent cross-appealed, arguing the limitation period should not run due to fraudulent concealment.

The Court of Appeal dismissed the main appeal on the substantive issues, finding no error in the trial judge's treatment of the limitation period, mitigation, or the validity of the renewal contract.

However, the court granted leave to appeal costs and reduced the trial costs award to partial indemnity.

The cross-appeal was dismissed as the issue of fraudulent concealment was not raised at trial.

Following an appeal regarding an equalization award where success was divided, the respondents sought costs of the appeal.

The Divisional Court noted that the appellants were successful on two of the four issues, reducing their required payment by 25%.

Given the divided success and the significant time spent on a tax issue where the appellants were unsuccessful, the court exercised its discretion to make no award of costs.

The appellants appealed a trial judgment that determined the equalization payment required to separate a family business under a consent order.

The Divisional Court upheld the trial judge's findings on the valuation of the businesses, the tax treatment of parked debt under the Income Tax Act, and the scope of the issues tried.

However, the court allowed the appeal in part, finding the trial judge misapprehended evidence regarding an agreement to pay interest on unequal shareholder loans, resulting in a $108,500 credit to the appellants.