Ruth Promislow

The appellant, Glenn Winder, appealed a motion judge's decision that his claim for the intentional tort of intrusion upon seclusion against Marriott International, Inc. did not disclose a cause of action.

The lawsuit stemmed from a data breach of Marriott's Starwood hotels reservation database.

Winder argued that Marriott's collection and storage of personal information, in a manner that did not meet its representations and legal obligations regarding security, constituted an invasion of privacy, vitiating consent.

The Court of Appeal affirmed the motion judge's decision, holding that the tort of intrusion upon seclusion requires an actual intrusion into private affairs, not merely a failure to safeguard information from third-party intrusion.

The court found no facts pleaded to support that Marriott itself disclosed or caused disclosure of the information, distinguishing it from a failure to protect against external hacking.

In a proposed class action arising from a data breach of Marriott's hotel reservation database, the parties stated a question of law under Rule 21(1)(a) as to whether the plaintiff pleaded a legally viable cause of action for intrusion on seclusion.

The plaintiff argued that Marriott, by allegedly obtaining data under false pretenses and failing to protect it, was a 'constructive intruder'.

The court rejected this argument, following binding precedent that the tort of intrusion on seclusion applies only to actual intruders, not to defendants who fail to prevent a third-party hack.

The court concluded the Statement of Claim did not disclose a cause of action for intrusion on seclusion against Marriott.

The plaintiffs brought a motion for default judgment against their former investment advisor and his corporate entities for fraud and breach of fiduciary duty, and for summary judgment against the mutual fund dealer, FundEx, on the basis of vicarious liability.

The court granted default judgment against the advisor and his companies, finding the elements of civil fraud and breach of fiduciary duty were established based on deemed admissions.

However, the court dismissed the motion for summary judgment against FundEx, concluding that genuine issues requiring a trial existed regarding whether the advisor's wrongful acts were sufficiently connected to his authorized conduct to impose vicarious liability, and whether the plaintiffs' claims were discoverable outside the limitation period.

The plaintiffs brought a motion seeking the incarceration of the defendant for contempt of court, alleging he failed to comply with costs orders and failed to complete 250 hours of court-ordered community service.

The court found that the defendant had only proven completion of 44 hours and that his evidence regarding the remaining hours was highly suspicious.

However, the court concluded that the evidence did not demonstrate a wilful intention to mislead sufficient to justify incarceration.

The defendant was ordered to complete the remaining 206 hours of community service by a specified date.

Following a successful appeal setting aside a series of ex parte 'investigative receivership' orders, the successful appellants sought costs against both the original applicant and the court-appointed receiver.

The Court of Appeal held that both were liable for costs.

The applicant was liable on a partial indemnity scale because he initiated and supported the proceedings.

The receiver was held personally liable for costs on a substantial indemnity scale because it acted as a 'real litigator' and pursued an impermissibly overreaching roving receivership, losing its objectivity as an officer of the court.

The Court also clarified that substantial indemnity costs are calculated as 1.5 times partial indemnity costs under Rule 1.03, rather than as a percentage of full indemnity costs.

The applicant obtained a default judgment for fraud against the respondents regarding a tax loss allocation scheme.

He subsequently obtained an ex parte order under s. 101 of the Courts of Justice Act appointing a receiver over the respondents' assets.

Through further ex parte applications, the receivership was expanded into a broad investigative receivership freezing the assets of 43 additional non-party individuals and entities to protect the interests of thousands of other investors.

The Court of Appeal set aside the orders, holding that while s. 101 permits investigative receiverships in appropriate circumstances, the orders here were unjustifiably overreaching and went beyond protecting the applicant's judgment recovery.

The appellants moved to review an order of a single judge of the Court of Appeal that dismissed their motion to set aside a Registrar's Order dismissing their appeal for delay.

The panel admitted fresh evidence showing that the delay was due to the inadvertence of former counsel, who failed to provide the full explanation for the delay or evidence of the appellants' intention to pursue the appeal.

Finding that the appeal raised serious issues regarding the scope of a receiver's authority, the court set aside the dismissal orders, extended the time to perfect the appeal, and awarded costs to the appellants.

The defendants sought leave to appeal an order continuing a Mareva injunction against them.

The injunction was largely based on information obtained by the plaintiff's counsel from the RCMP, which had received it from FINTRAC and US law enforcement.

The defendants argued this disclosure breached privacy laws.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the lower court's conclusion that the RCMP's disclosure of personal information to a private lawyer for a civil fraud action was authorized under the Privacy Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

The court also found the tension between privacy and access to information to be a matter of public importance.

In a receivership-related motion arising from alleged fraudulent investment activities, the receiver sought authorization to utilize frozen funds held by entities subject to prior court orders to pay ongoing investigation costs.

The court held that the circumstances differed from typical insolvency proceedings because many affected entities were not parties and no specific allegations had been pleaded against them.

Exercising discretion under the prior freezing order, the court declined to allow prepayment of the receiver’s investigative expenses from the frozen funds.

The court also rejected a request for a sealing order due to the strong presumption of open courts but granted a confidentiality order restricting the receiver from voluntarily providing information to tax or criminal authorities.

Costs were not awarded due to divided success.

The defendants moved to vary a previously granted Mareva injunction that capped restrained assets at $1.6 million, seeking removal of certain real properties from the injunction based on updated valuation evidence.

The plaintiff did not dispute the valuations but raised concerns regarding outstanding mortgages on some properties and sought to restructure the injunction so that it first applied to one defendant’s assets before reaching another’s.

The court accepted evidence that the mortgages were either discharged or easily dischargeable and concluded that the total value of remaining restrained assets exceeded the $1.6 million cap.

The injunction was varied to permit mortgage discharges and to remove specified properties from the schedule while maintaining sufficient assets under restraint.

The plaintiff’s cross-motion to prioritize enforcement against particular defendants’ assets was dismissed.

The plaintiff sought continuation of a Mareva injunction freezing assets in a civil fraud action alleging an international investment scheme involving silicon germanium transactions.

The defendants opposed continuation of the injunction, sought to expunge FINTRAC materials and a U.S. criminal complaint from the motion record, and alternatively requested that the plaintiff post security for the undertaking as to damages.

The court held that hearsay evidence contained in a U.S. criminal complaint was admissible on a motion under Rule 39.01(4) and that the FINTRAC report was properly disclosed through the RCMP and was both relevant and admissible.

The court found a strong prima facie case of fraud, a risk of dissipation of assets, and no material non‑disclosure.

The Mareva injunction was continued and no order for security was imposed.

The appellant clients appealed a judgment that severely limited the assessment of accounts rendered by their former solicitors, Bennett Jones LLP.

The application judge had ruled that because the clients previously relied on the accounts to seek party-and-party costs in an underlying action, seeking to assess those same accounts constituted an abuse of process.

The Court of Appeal allowed the appeal, holding that the doctrine of abuse of process does not prevent a client from having a solicitor's bill assessed even if the costs were previously fixed by a trial court, as the interests and considerations in the two contexts are distinct.

The defendant brought a motion to cap the monetary scope of an uncapped Mareva injunction that had frozen all of the defendants’ assets in relation to a fraud claim valued at approximately $824,000.

The plaintiff argued the injunction should remain uncapped due to evidence of a broader alleged fraudulent scheme and the possibility of additional victims asserting claims.

The court held that absent other commenced claims, it was unfair to restrain assets far exceeding the plaintiff’s claim.

The Mareva injunction was therefore capped at $1.6 million, reflecting the compensatory claim plus anticipated investigative and legal costs, and limited primarily to real estate assets.

The defendant’s request to examine the plaintiff’s senior counsel regarding the origin of investigative evidence was denied as speculative and unnecessary.

The plaintiffs brought a motion seeking an order requiring a bank to restore funds removed from a frozen account after the bank allowed the freeze to lapse.

The plaintiffs relied on Rule 60.11(9) of the Rules of Civil Procedure and the court’s inherent jurisdiction to compel restoration of the account to its prior state.

The court held that the requested relief could not be granted on a summary motion because the bank was not a defendant in the action and issues such as duty of care, causation, and potential set-off would require a full civil proceeding.

The court concluded that the appropriate remedies would be a contempt motion or a separate action for damages.

The motion was therefore dismissed without prejudice to pursuing those remedies.

Following a prior finding of civil contempt for breaching a court order, the court addressed the appropriate sanction for the contemnor.

The moving parties sought incarceration, arguing that a monetary penalty would have little practical effect.

The court emphasized that imprisonment for civil contempt is a remedy of last resort and considered mitigating factors including the contemnor’s written and in‑person apology and stated willingness to make restitution.

A suspended sentence was imposed with conditions including compliance with all court orders, fulfillment of undertakings in the apology letter, community service, and surrender of firearms.

The plaintiff brought an ex parte motion seeking a Mareva injunction and related relief against several defendants alleged to have participated in an international fraud scheme involving the sale of semiconductor materials.

The evidence suggested the plaintiff lost $840,000 after being induced to transfer funds through a fraudulent distribution arrangement, and that similar schemes had defrauded numerous victims in the United States.

The court found strong circumstantial evidence linking the primary individual defendant to the fraud and determined that the plaintiff had established a strong prima facie case.

Evidence of financial transfers among the defendants and recent property dispositions supported a risk of asset dissipation.

The court concluded the prerequisites for Mareva relief were satisfied and granted the injunction.

The plaintiffs brought a motion seeking orders authorizing a receiver to take possession of a residential property, evict occupants, and secure the property following findings of fraud in earlier proceedings.

A responding party brought cross-motions seeking a declaration that the property constituted a matrimonial home under the Family Law Act and requesting related relief to prevent enforcement against the property.

The court held that the transfer of the property to the responding party had already been determined at trial to be a fraudulent conveyance intended to defeat creditors, and that the responding party could not reopen factual issues after declining to testify or adduce evidence at trial.

The court further found that the responding party had consented to the mortgage transactions and that the Family Law Act did not protect the property from the plaintiffs’ tracing remedies arising from fraudulently obtained funds.

The motion was granted and the cross-motions were dismissed.

Former clients applied under the Solicitors Act to have legal accounts rendered by their former law firm assessed after paying more than $300,000 in fees and disbursements.

The respondent law firm argued the application was barred by the 12‑month limitation in s. 4 of the Solicitors Act, that the accounts had been paid, and that the application constituted an abuse of process.

The court held that commencing an application within 12 months preserves the right to assessment and that, in any event, the two‑year limitation under the Limitations Act may apply.

The court found “special circumstances” under s. 11, including the unexpectedly large fees, the pressure to promptly pay accounts, and the clients’ limited understanding of their right to challenge the bills.

However, because the clients had previously represented certain work as reasonable when seeking costs before another judge, those portions of the accounts were excluded from review.

The remaining portions of the accounts were referred for assessment.

The appellants appealed a judgment setting aside their beneficial interest in a mortgage on a property owned by a bankrupt limited partnership as an unjust preference under the Assignments and Preferences Act.

The appellants argued there was no intent to give an unjust preference and that the interest was granted as security for a present actual advance of money.

The Court of Appeal dismissed the appeal, finding ample evidence of intent to prefer and agreeing with the motion judge that the surrender of existing promissory notes for new ones did not constitute a present actual advance of money.

The appellants appealed a summary judgment decision finding them bound by a December 17, 1999 agreement.

The appellants argued the agreement was based on a misrepresentation regarding the accounting approach used for a pay-out calculation.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that differing views on accounting approaches did not constitute a misrepresentation, especially since the view of the appellant's Chief Financial Officer was known to the appellant.