Rosemary Anne Fisher

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal for the reasons given by the motion judge and held it was bound by prior appellate authority.

On the respondent's concession, the court permitted the appellant to amend its corporate name to reflect its former and current names.

Costs of the appeal were awarded to the respondent.

Judgment creditors brought an application seeking approval of a proposed agreement of purchase and sale for a commercial property or, alternatively, the appointment of a receiver in aid of execution to facilitate enforcement of a monetary judgment.

The court reviewed the governing principles for appointing an equitable receiver, including the requirement for special circumstances where traditional execution mechanisms would be ineffective or impractical.

The evidence demonstrated that the judgment debtors failed to comply with settlement timelines requiring sale or refinancing of the property and did not adequately cooperate with the sales process.

Given delays, conflicting interests among stakeholders, and concerns that the existing listing process did not satisfy the Soundair principles for court-supervised asset sales, the court concluded that a receiver-controlled sales process was necessary.

A receiver was therefore appointed with authority to market and sell the property, and partial indemnity costs were awarded to the applicants.

The appellants appealed a summary judgment in favour of the Business Development Bank of Canada (BDC) on a loan and guarantee.

The motion judge found that the corporate appellant was in default to RBC, which triggered a default on the BDC loan pursuant to a subordination agreement.

The Court of Appeal upheld the summary judgment, finding no genuine issue for trial and concluding that the motion judge did not err in admitting an affidavit attaching RBC's business records or in dismissing the appellants' cross-motion to stay the summary judgment motion.

The plaintiffs, Nashaat and Taghreed Aly, claimed a partnership interest in a family grocery business, Nader Halal, operated by Adel Tohamy.

The court found a valid oral agreement from 2001 granting the Alys a 20% interest.

In a related family law application, Adel's former wife, Naiema, sought to set aside two separation agreements that released her claims to the family businesses and spousal support.

The court set aside both agreements under s. 56(4) of the Family Law Act due to Adel's deliberate failure to disclose significant assets, unconscionability, and duress.

The court also found the defendants engaged in spoliation of evidence by destroying financial records and ordered the appointment of a receiver over the businesses pending the damages phase of the trial.

The defendant brought a motion under Rule 51.06 seeking dismissal of the action based on alleged admissions concerning the lease and the proper party to advance the claim.

The plaintiff also moved under Rules 5.04(2) and 26.01 to amend its statement of claim to add several affiliated corporate plaintiffs asserting losses arising from the failure of a franchised coffee shop allegedly caused by the landlord’s breach of a commercial lease.

The court held that the defendant failed to establish the stringent requirements for judgment based on admissions under Rule 51.06 because material factual and legal issues remained for trial, including interpretation of the lease obligations regarding paving.

The court further held that adding the proposed corporate plaintiffs after the expiry of the two‑year limitation period constituted the addition of new parties rather than correction of a misnomer.

Relying on appellate authority, the court found that the proposed amendment would violate the Limitations Act, 2002 and cause non-compensable prejudice to the defendant.

The defendant brought a motion under Rule 51.06 seeking dismissal of the action based on alleged admissions concerning the lease and the proper party to advance the claim.

The plaintiff also moved under Rules 5.04(2) and 26.01 to amend its statement of claim to add several affiliated corporate plaintiffs asserting losses arising from the failure of a franchised coffee shop allegedly caused by the landlord’s breach of a commercial lease.

The court held that the defendant failed to establish the stringent requirements for judgment based on admissions under Rule 51.06 because material factual and legal issues remained for trial, including interpretation of the lease obligations regarding paving.

The court further held that adding the proposed corporate plaintiffs after the expiry of the two‑year limitation period constituted the addition of new parties rather than correction of a misnomer.

Relying on appellate authority, the court found that the proposed amendment would violate the Limitations Act, 2002 and cause non-compensable prejudice to the defendant.

The court heard several pre‑trial motions in a business dispute involving alleged partnership interests and related claims.

The defendants sought to exclude evidence arising from mediation meetings and related communications on the basis of settlement privilege.

The court held that discussions during meetings arranged to mediate the dispute were bona fide settlement negotiations conducted in contemplation of litigation and therefore protected by settlement privilege.

However, alleged statements made to a third party regarding destruction of financial records were not protected because there was no evidence of a common intention to engage in settlement discussions.

The court also addressed requests for witnesses to testify by Skype, permitting remote testimony for one peripheral witness but requiring in‑person testimony for another whose evidence was central to a spoliation claim.

The court provided procedural directions for a consolidated trial involving corporate oppression claims, family law claims, and disputes over alleged ownership interests in several companies and properties.

Multiple parties proposed competing structures for the order in which the issues should be tried.

The court held that the determination of ownership interests in the companies and properties must occur first before any remedies could be considered, as premature remedies could prejudice other parties’ claims.

The court rejected a proposal to resolve one party’s oppression action in its entirety before the others and instead structured the trial into staged phases addressing ownership, family law and corporate claims, and finally remedies.

The court also imposed strict deadlines for motions, disclosure, and examinations prior to trial.

The court addressed three related proceedings involving family law claims and corporate oppression claims concerning ownership and profits of several closely held companies.

The issues included whether a former spouse retained a share interest in corporate entities following separation agreements and whether other parties were entitled to equity interests or damages relating to the same companies.

The court determined that the proceedings involved overlapping factual issues concerning share ownership, corporate value, and entitlement to profits.

To avoid inconsistent findings, duplication of evidence, and unnecessary costs, the court ordered that the three proceedings be tried together as a single consolidated trial under Rule 6.01 of the Rules of Civil Procedure.

Procedural directions were issued governing pleadings, motions, and scheduling of the unified trial.

The applicant bank brought an application under s. 243 of the Bankruptcy and Insolvency Act for the appointment of a receiver and manager over the respondents' assets.

The respondents opposed the application, arguing it was premature and that they should be given more time to address the outstanding demand for payment.

The court found that the respondents were in default, had failed to make agreed-upon payments from a prior adjournment, and that the applicant's security position was eroding.

Concluding that it was just and convenient to do so, the court granted the application and appointed a receiver.

The appellant appealed a trial judgment, arguing the trial judge erred in refusing an adjournment due to late disclosure, making blanket credibility findings, allowing an amendment to the interest rate claimed, finding an agreement on an 18 per cent interest rate, and awarding excessive costs.

The Court of Appeal dismissed all grounds of appeal, finding no prejudice from the late disclosure, sufficient support for credibility findings, that the interest rate amendment was not a new claim, and sufficient basis for the interest rate agreement.

The application to file fresh evidence was also dismissed, and costs of the appeal were awarded to the respondent.

The appellant sold a property to the respondent, who covenanted not to resell it without first building a specific type of house.

The respondent breached the covenant by reselling the property for a profit without building the house, though the subsequent purchaser did build a compliant house.

The trial judge found the appellant suffered no compensable damages and declined to order disgorgement of the respondent's profit.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's refusal to exercise his discretion to award disgorgement damages in the absence of exceptional circumstances.

The appellant mortgage broker appealed the trial judge's dismissal of its action against the respondents for unpaid commissions.

The appellant argued the respondents should be liable for breach of contract, oppression, or as principals by piercing the corporate veil.

The respondents cross-appealed the trial judge's refusal to award them costs.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's refusal to pierce the corporate veil or find oppression in what was an ordinary breach of contract by the corporate defendant.

The cross-appeal was also dismissed, as the trial judge's decision to deprive the successful respondents of costs due to their borderline dishonest conduct was justified.

The appellant appealed a costs order of $131,000 awarded to the respondents following a successful motion to stay the action.

The Court of Appeal found that the motion judge erred by relying too heavily on the hours spent and the costs grid, resulting in an award that was not fair and reasonable and exceeded the reasonable expectations of the parties.

The Court reduced the costs award to $67,500, emphasizing that the time claimed for preparation was excessive for a motion that was not complex.

The appellant appealed an order staying his Ontario contract action against the respondents on the basis that Ontario lacked jurisdiction simpliciter and Florida was the most convenient forum.

The appellant argued the motion judge erred by relying on a privileged letter, finding the agreement contained a Florida arbitration provision, and failing to consider the risk of a multiplicity of proceedings.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the Muscutt test, the letter was not privileged, and the factual findings were supported by the evidence.

The appellant appealed the dismissal of her motion to set aside a default judgment.

She argued that the plaintiff followed the wrong procedure in obtaining the default judgment based on a prior court order.

The Court of Appeal dismissed the appeal, finding that the prior order did not impose an obligation on the plaintiff to move for judgment, nor did the Rules of Civil Procedure require it on the facts of the case.

The default judgment was properly granted.

The appellants, secured creditors of a bankrupt company, sought leave under s. 215 of the Bankruptcy and Insolvency Act to commence an action against the trustee in bankruptcy for negligence, conversion, breach of fiduciary duty, and breach of trust regarding the sale of the bankrupt's assets.

The motions judge dismissed the appeal from the Registrar's refusal to grant leave.

The Court of Appeal upheld the decision, finding that the trustee was acting as an agent for a prior secured creditor when selling the assets, and that the appellants had failed to object to the sale at the first meeting of creditors.

The appellants challenged an order in a bankruptcy proceeding concerning ownership of property and the bona fides of an alleged trust in favour of one respondent.

The Court of Appeal held that the motion judge acted within his discretion under the bankruptcy rules in deciding the merits on a motion rather than directing a trial of an issue, particularly given the appellants' primary position below.

Although conflicting evidence could have supported a different finding, the finding made was open to the motion judge on the totality of the record.

The appeal was dismissed with costs.

The appellant creditor appealed a finding that the company was insolvent under s. 20(1)(d) of the Business Corporations Legislation Act.

The Court of Appeal was not persuaded that the master erred in making that finding.

The appeal was dismissed with costs.