R.S.M. Woods

The plaintiff sought to compel the President and CEO of Caesars Entertainment Windsor Limited (CEWL) to appear as a discovery witness in an action for recovery of gambling losses.

The plaintiff alleged negligence by the casino in allowing him to gamble while intoxicated and as a known problem gambler.

The court applied principles for corporate discovery representatives, finding that the CEO lacked sufficient direct involvement with the events, and compelling his attendance would be oppressive for a non-landmark case.

The motion was dismissed, and no costs were awarded due to counsel's conduct regarding the motion's venue.

The applicants, minority shareholders of Deciem Beauty Group Inc., brought an urgent oppression application under the Canada Business Corporations Act seeking various interim orders against Deciem, Integridad Inc., Pasquale Cusano, and Brandon Truaxe.

The motion sought to remove Mr. Truaxe from Deciem's board, officer, and employee roles, appoint an interim CEO, define the board composition, prohibit Truaxe's interference with business operations and electronic systems, amend the unanimous shareholders agreement, and appoint PriceWaterhouseCoopers LLP to investigate allegations of criminal activity and Deciem's financial condition.

The court found a triable issue of oppression, irreparable harm to Deciem, and that the balance of convenience favored granting the injunction, given Truaxe's erratic and destructive behavior that brought the company to the brink of disaster.

The plaintiffs moved to remove estate trustees and spousal trust trustees, and for a receiver over a holding company, alleging misconduct and oppression.

The defendants cross-moved to dismiss the action for delay and for security for costs.

The court dismissed the motions to remove trustees and appoint a receiver, finding sufficient assets secured the plaintiffs' interests and no corporate oppression.

The court also dismissed the defendants' motion to dismiss for delay against the remaining plaintiff, Leslie Barker, but ordered her to post security for costs as a non-resident.

The third party moved to stay a third party claim on the basis of a forum selection clause in a guarantee agreement governed by German law that designated the courts of Hannover, Germany as the competent forum.

The defendants argued the claim should proceed in Ontario alongside the main action concerning breaches of warranty under a share purchase agreement.

Applying the “strong cause” test from Supreme Court of Canada jurisprudence, the court held that forum selection clauses in international commercial contracts are presumptively enforceable unless exceptional circumstances justify departure.

The defendants failed to demonstrate such circumstances, as the possibility that witnesses and related litigation were located in Ontario was reasonably contemplated when the parties agreed to the clause.

The third party claim was stayed in favour of the Hannover courts.

The applicant sought declaratory relief that certain software licensing agreements were not part of any contract governing its use of software used in manufacturing systems and that it owed no further licensing fees.

The dispute arose after the respondents conducted an audit and claimed additional fees based on a per‑core licensing model introduced after a software upgrade.

The court held that the application procedure under Rule 14.05(3) was inappropriate where key facts regarding delivery and acceptance of licensing terms were disputed.

Because the applicant bore the onus of proving entitlement to declaratory relief and the evidentiary record was incomplete and conflicting, the court declined to determine the contractual issues on the application record.

The application was dismissed and costs were awarded to the respondents.

Dissident shareholders holding more than 5% of a public corporation sought orders under ss. 143 and 144 of the Canada Business Corporations Act requiring the board to call a shareholders’ meeting to remove and replace directors.

The court held the first requisition invalid because it was made by a beneficial rather than registered shareholder and failed to identify proposed director nominees.

Although a second requisition was valid, the directors were entitled to rely on the statutory exception in CBCA s. 143(3)(a) because a record date had already been fixed for an upcoming annual meeting.

While shareholders may in principle call a meeting under s. 143(4) even where a board relies on s. 143(3), the court declined to permit the proposed meeting in the circumstances due to delay by the applicants, limited prejudice from waiting for the scheduled AGM, and the costs of holding two meetings in close proximity.

The court determined costs following civil proceedings between the parties.

On consent, the plaintiffs were ordered to pay the defendant $107,998.61 in legal fees inclusive of GST and HST.

The court also ordered payment of disbursements in accordance with the defendant’s Bill of Costs, subject to reductions required under Tariff A of the Rules of Civil Procedure.

Hotel expenses were reduced to conform with Tariff A s. 21(3), and witnesses’ travel and parking expenses were ordered recalculated under Tariff A s. 21(2)(c), with all other disbursements approved.

Former shareholders of a technology company sought payment of earn‑out amounts under a Share Purchase Agreement following the purchaser’s acquisition of their company.

They argued that profits from a large engineering project should have been included in the calculation of EBIAT for purposes of triggering the earn‑out thresholds and that revenue had been improperly deferred.

The court held that the project did not meet the contractual requirements for inclusion because the earnings were not attributable exclusively to design services using the acquired company’s unique intellectual property and the project had not been awarded specifically due to that IP.

The court also preferred the defendant’s accounting evidence and found no improper revenue deferral affecting the threshold calculations.

Accordingly, the plaintiffs failed to establish entitlement to the earn‑out payment.

Following the refusal of an interlocutory injunction sought by the landlord applicants to compel a hotel operator to continue operating a hotel under a particular brand, the court determined the issue of costs.

The applicants argued that an indemnity clause in a lease entitled them to full indemnity costs from a former tenant alleged to have breached the lease.

The court held that the indemnity clause did not permit the landlord to recover litigation costs from a prior tenant where the present tenant supported the motion and where the lease’s procedures regarding a change of operating name had not been followed.

Even if the clause applied, the court would decline to exercise its discretion to award costs to the applicants.

Costs were awarded instead to the successful respondent hotel operator.

The applicants sought an interlocutory injunction compelling a hotel operator to continue managing and branding a hotel under a particular brand pending determination of a permanent injunction application.

They argued the lease required continued operation of the hotel using the brand and associated operational infrastructure despite expiry of the hotel management agreement.

The court applied the RJR‑MacDonald test and held that the lease provisions did not clearly impose an obligation requiring the operator to continue providing the full operational benefits of the brand.

The alleged harm, primarily reduced participation rent and potential reputational impacts, was found to be quantifiable and compensable in damages.

The balance of convenience favoured the operator, which would otherwise be compelled to operate a business relationship it no longer wished to maintain.