Ryan Taylor

The defendants sought to remove Stikeman Elliott LLP as counsel for the plaintiffs and to require destruction of documents containing their solicitor-client privileged information, alleging improper handling of privileged communications.

The court found that the privilege in the relevant emails was jointly held by both the sellers and the companies in the Ellis Group, and that the amalgamated company (Ellis Packaging Limited) continued to hold the privilege after the share purchase.

The motion was dismissed.

Wessuc Inc. sued Todd Brothers Contracting Limited and The Guarantee Company of North America (GCNA) for breach of contract, unjust enrichment, and breach of trust related to a sludge removal contract.

Todd counterclaimed for Wessuc's failure to complete the contract.

The court found that the contract was a lump sum agreement for 6100 m³ of sludge removal, not a per-unit price for total volume including water.

Wessuc abandoned the project by ceasing work and failing to provide a plan for completion, entitling Todd to terminate the contract.

Wessuc's claim for damages and quantum meruit was dismissed as it did not substantially complete the work.

Todd's counterclaim for costs incurred to complete Wessuc's work, including cattail removal, equipment, fuel spill cleanup, and sand/sawdust for drying sludge, was allowed for $53,000.

GCNA was found to have no obligations under the bond due to Wessuc's failure to provide timely and adequate notice.

Wessuc Inc. brought a motion on the second day of trial to withdraw several admissions made in its Amended Reply and Defence to Amended Counterclaim.

The admissions were inconsistent with Wessuc's main pleadings, particularly regarding the contract terms (unit price vs. capped price) and notice under a labour and material payment bond.

The court applied the three-part test for withdrawing admissions (triable issue, inadvertence, and lack of uncompensable prejudice).

The court found that the proposed amendments raised triable issues, the admissions were due to "breathtaking" inadvertence by counsel, and there was no uncompensable prejudice to the defendants, who had continued preparing for trial on the contested issues.

The motion was granted, allowing Wessuc to withdraw the admissions.

No costs were awarded for the two days of court time lost due to the motion, as both parties were deemed at fault for the delay.

The SMA 2 Unitholders sought a declaration that substantive consolidation does not apply to Bridging SMA 2 LP and approval for a second interim distribution.

The Receiver and Unitholder Representative Counsel opposed, arguing the motion was premature as various distribution issues, including the full economic impact of consolidation, remained unresolved.

The court dismissed the motion, deferring to the Receiver's position that a determination on substantive consolidation and further distributions was premature given the incomplete factual record and outstanding distribution issues.

The Plaintiffs brought a motion for a Mareva injunction and ancillary relief, alleging a significant fraud where over $17,000,000 in investor funds were misappropriated from a litigation financing business and diverted to companies controlled by the Defendants to purchase real estate and other assets, resembling a Ponzi scheme.

The court granted the Mareva injunction, finding a strong prima facie case of fraud, a serious risk of asset dissipation (evidenced by attempts to sell properties and the defendants' lack of forthrightness), and that the balance of convenience favored the plaintiffs.

The court also ordered the net proceeds from the sale of a specific property to be held in trust and granted substituted service for two defendants.

In the receivership of the Bridging Funds, the Receiver brought a motion to determine whether unitholders with Potential Statutory Rescission Claims (based on misrepresentations in offering memoranda) or Potential Redemption Claims (based on unfulfilled redemption requests) were entitled to priority over General Unitholder Claims.

The court held that Potential Redemption Claims were not entitled to priority because the redemption requests had not been completed prior to the receivership.

However, the court held that Potential Statutory Rescission Claims were entitled to priority, finding that the statutory right of rescission under s. 130.1(1) of the Securities Act creates a de facto priority and justifies the imposition of a constructive trust over the invested funds.

The appellant insurer appealed an arbitrator's decision dismissing its motion to dismiss the respondent insurer's application for loss transfer indemnity under s. 275 of the Insurance Act.

The dispute arose after a pedestrian was struck by a vehicle insured by the appellant and claimed Statutory Accident Benefits under a motorcycle policy issued by the respondent to the pedestrian's father.

The Divisional Court upheld the arbitrator's findings that the priority scheme in s. 268 of the Insurance Act ranks insurers, not policies, and that the respondent was entitled to indemnification.

The appeal was dismissed.

The Receiver brought an unopposed motion for a Claims and Unitholdings Identification Order and for approval of its activities as described in its 12th Report.

The court found the proposed order practical and reasonable to assist the Receiver with the distribution process.

The motion was granted and the Receiver's activities were approved.

The Receiver brought a motion for an order approving an interim cash distribution of $78 million to the two institutional unitholders in Bridging SMA 2 LP.

The court found it appropriate to make an interim distribution but reduced the amount to $46 million to account for the potential impact of substantively consolidating the various Bridging Funds, an issue that had yet to be determined.

The applicant requested a reconsideration of a previous decision that dismissed her application for caregiver and non-earner benefits on the grounds of res judicata and being statute-barred.

The applicant argued that the Tribunal erred in fact and law and violated procedural fairness, specifically regarding the start date of the limitation period and the deemed receipt of the denial letter.

The Vice Chair found no errors of fact or law, noting that the applicant failed to provide evidence at the original hearing that the denial letter was mailed rather than given on its date.

The request for reconsideration was dismissed as the applicant was attempting to re-argue her case.

The plaintiffs brought a motion for contempt after the defendants failed to attend examinations in aid of execution and multiple subsequent court appearances.

One defendant appeared at the motion and was ordered to attend a rescheduled examination.

The other defendant failed to appear again, and the court issued a bench warrant for his arrest, with his next appearance to consider an order of contempt.

The appellant appealed a site-specific Zoning By-law Amendment and a consent application intended to facilitate the development of a long-term care facility.

Prior to the hearing, the parties reached a settlement and entered into multiple agreements.

The appellant withdrew its appeal against the Zoning By-law Amendment, and the parties jointly recommended a revised condition of consent.

Relying on uncontested land use planning evidence, the Tribunal found the consent satisfied all statutory criteria, allowed the consent appeal in part, and authorized the provisional consent subject to the amended condition.

At a Case Management Conference for appeals concerning a Zoning By-law Amendment and a consent application, the Tribunal found the City's public notice to be defective.

On consent of the parties, who were engaged in settlement discussions, the Tribunal consolidated the appeals, abridged the time for service of a new notice, and scheduled a new Case Management Conference.

The plaintiff brought a motion to compel the cross-examination of a law clerk who swore an affidavit in support of the defendants' pending motion.

The defendants raised a preliminary objection that the plaintiff's motion was unsupported by an affidavit.

The court held that the plaintiff could rely on uncontentious documents in her motion record without an affidavit.

The court also granted the motion to compel cross-examination, finding that the plaintiff had a prima facie right to cross-examine and there was no basis to interfere with it.

The defendants brought a motion for partial summary judgment to declare an option agreement (OA) and an option amending agreement (OAA) valid and enforceable, and to dismiss the plaintiff's oppression and breach of fiduciary duty claims.

The plaintiff alleged the agreements were unenforceable due to lack of explanation, independent legal advice, and fresh consideration, and that the defendants engaged in oppressive conduct and breached fiduciary duties.

The court found the OA and OAA valid and enforceable, rejecting the plaintiff's arguments.

It also dismissed and struck the oppression and breach of fiduciary duty claims, finding them improperly pleaded and unsupported by evidence, and noting the plaintiff's failure to seek leave for a derivative action for corporate wrongs.

The plaintiff's wrongful dismissal claim was allowed to proceed.

The defendant was charged with acting as a vendor of a new home without being registered pursuant to the Ontario New Home Warranties Plan Act.

The defendant purchased a lot, built a home, obtained an occupancy permit, and occupied the residence before selling it approximately one month later.

The central issue was whether the defendant occupied the home within the meaning and intent of the Act.

The court found that the defendant did occupy the home as his primary residence despite minimal furnishings and a short occupancy period.

The charge was dismissed.

The plaintiff moved for an interlocutory injunction and Anton Piller relief against former senior employees, related corporations, and an IT contractor alleged to have misappropriated confidential business information and usurped a corporate opportunity.

The court found a strong prima facie case of contractual breach, fiduciary breach, direct competition, and improper removal and retention of hard drives and server data containing confidential investor, marketing, and business-planning information.

Applying the RJR-MacDonald injunction test and the Celanese framework for Anton Piller orders, the court held that irreparable harm would result from the defendants' entry into a unique market using the plaintiff's confidential materials, and that there was a real possibility relevant electronic evidence would be destroyed.

The injunction and Anton Piller order were granted.