Ryan Wozniak

The appellant challenged an order holding that a dispute over vested options to acquire shares in a related corporate entity had to be resolved in Delaware rather than under the mediation-arbitration clause in his Ontario employment agreement.

The court held that the competence-competence principle did not require referral to an arbitrator because arbitral jurisdiction could be determined through a superficial review of the contractual record.

Reading the employment agreement, option agreement, and incorporated equityholders agreement together, the court held that the options dispute was not contemplated by or connected with the employment agreement and was instead governed by the Delaware forum selection clause.

The court also rejected the argument that the forum selection clause was unconscionable, finding no improvident bargain or evidence that the chosen forum placed a remedy out of reach.

The applicants were successful in their application for judicial review of a Small Claims Court costs decision, which was remitted back to the Deputy Judge for reconsideration and provision of reasons.

In this costs endorsement, the court awarded costs to the applicants despite their counsel acting pro bono, noting that such awards promote access to justice.

The court rejected the applicants' claim for substantial indemnity costs, finding the result was not better than their offer to settle.

Balancing the factors under Rule 57.01(1) and the principle of proportionality, the court fixed costs at $5,000 all inclusive.

The applicants sought judicial review of a Small Claims Court costs decision where the Deputy Judge ordered them, as the successful party on a motion, to pay $1,500 in costs to the plaintiff.

This amount was 15 times the maximum allowable under Rule 15.07 of the Rules of the Small Claims Court absent special circumstances.

The Divisional Court found that the Deputy Judge's failure to provide reasons for the elevated costs award constituted a breach of procedural fairness.

The costs decision was set aside and remitted back to the Deputy Judge for reconsideration and provision of reasons.

The appellant condominium corporation appealed a Superior Court decision that dismissed its negligence claim against multiple defendants for delay in service.

The claim involved construction defects discovered in 2012 and issued in 2014 but not served within the required six-month period.

The appeal judge reversed the master's decision, finding palpable and overriding errors of fact and law.

However, the Court of Appeal found that the appeal judge's decision was based on a transcription error in the master's reasons (where "institutional" was incorrectly transcribed as "individual"), which created a false inconsistency.

The Court of Appeal allowed the appeal and restored the master's decision, finding that the master properly applied the legal principles regarding delay and prejudice.

Following the defendant's unsuccessful motion to transfer and consolidate the action, the successful plaintiff sought costs of $7,082.73 on a partial indemnity basis.

The defendant argued costs should be in the cause or parties should bear their own costs.

The court rejected the defendant's arguments, finding the plaintiff entitled to costs payable forthwith.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court fixed the plaintiff's costs at $6,000 inclusive.

The defendants brought a motion to transfer the action from Newmarket to Toronto to be heard immediately after a related action commenced by the plaintiff in Toronto.

The court dismissed the motion, finding that transferring the action would delay the Toronto action, which was already set down for trial.

The court noted the plaintiff's advanced age and the fact that she had been financing the Toronto litigation for five years.

The court held that the plaintiff's choice of venue was entitled to deference and there was no risk of inconsistent findings.

The appellants appealed a trial judgment that imposed a constructive trust over their properties, declared that Venanzio Pingue was not a shareholder of the respondent company, and removed him as an officer and director due to breach of fiduciary duties.

The trial judge found that Venanzio had misappropriated $592,671.43 from the company and never paid for his shares.

The appellants argued the trial judge erred in interpreting the parties' written agreements and in refusing to admit their expert report.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's interpretation of the agreement or her discretionary decision to exclude the late expert report.

The court also dismissed the motion to admit fresh evidence and the motion for leave to appeal the costs order.

The appellant appealed a motion judge's order staying an action for breach of contract.

The motion judge found that the contract required disputes to be resolved by arbitration in South Carolina.

The central issue was whether the contractual rights assigned to the appellant were limited to those in a Joint Venture Marketing Agreement (JVMA) or included terms from an International Sales Agency Agreement (ISAA) containing an arbitration clause.

The Court of Appeal upheld the motion judge's findings that both agreements were assigned to the appellant and that the parties conducted themselves in accordance with the ISAA, including its arbitration clause.

The appellant appealed an order dismissing its motion to restore a construction lien action to the trial list and denying it the right to deliver a defence to the respondents' counterclaim.

The Divisional Court admitted fresh evidence explaining the delay, which was largely due to the parties focusing on a companion action and the respondents' own delays in fulfilling undertakings.

The Court found the appellant met both the 'ready for trial' test and the test for explaining delay without causing non-compensable prejudice.

The appeal was allowed, the action was restored to the trial list, and the appellant was permitted to file a defence to the counterclaim.

The appellant brought a motion to admit fresh evidence on appeal.

The respondents opposed the motion on the basis that the appellant could not meet the due diligence criterion of the Palmer test.

The Divisional Court allowed the motion, finding that the interests of justice favoured admitting the evidence despite the lack of due diligence, given the uncertainty in the law, the nature of the evidence (procedural history), and the potential serious effect of denying admission.

This is a procedural appeal concerning the construction of the trial record.

The respondents sued the appellants for misappropriation of funds from an apartment building.

At trial, the trial judge relied on expert accounting evidence from the respondents' expert and refused to allow the appellants to adduce their own expert evidence late in the trial.

On appeal, the appellants sought to include in their appeal book both their own expert's report and portions of the respondents' expert's report that had not been made exhibits at trial.

A chambers judge ordered these materials excised from the appeal book.

The appellants appealed this decision to the panel.

The plaintiff brought a motion to extend the time to restore its construction lien action to the trial list and to prevent an impending administrative dismissal, pending its appeal of a previous order that refused to restore the action.

The defendants argued the motion was unnecessary because the Divisional Court has jurisdiction to set aside an administrative dismissal if the appeal succeeds.

The court agreed with the defendants, finding the motion unnecessary and dismissing it, as the appellate court's powers under the Courts of Justice Act and the Rules of Civil Procedure are sufficient to remedy any intervening administrative dismissal.

The applicants sought declarations that the respondent, the mayor of Caledon, contravened the Municipal Conflict of Interest Act by voting on land development matters in which he allegedly had a pecuniary interest.

The court found no evidence that the respondent had a direct or indirect pecuniary interest in the matters voted upon, noting that his property was located several kilometers away from the developments and any potential development of his land was decades in the future.

Both applications were dismissed.

The appellant appealed a Small Claims Court decision awarding the respondent damages for wrongful dismissal based on a continuous period of employment that included time with a previous, separate company.

The Divisional Court allowed the appeal, finding the trial judge erred in law by concluding the previous employer's obligations flowed through to the appellant.

The evidence demonstrated the two companies were separate corporate entities and the respondent had resigned from the first to join the second.

The damages award was reduced to reflect only the period of employment with the appellant.

The applicant, Saeed Yahyavi, brought an emergency motion to restrain the sale of his home by the respondent, Nadi Inc., under power of sale.

The applicant alleged that Nadi Inc. failed to disclose and account for a $250,000 payment received from a settlement in a fraudulent conveyance action, which should have been credited against the judgment debt secured by the mortgage on his home.

The court found that Nadi Inc. knowingly misstated the amount due in the notice of sale by improperly characterizing the settlement funds as punitive damages and costs rather than a realization on the judgment.

The court declared the notice of sale void and enjoined Nadi Inc. from completing the sale.

The applicant was ordered to pay $1,100,000 into court, and the issues regarding the proper amount due were referred to a Master for accounting.

The appellant was employed under a five-year fixed-term contract and was terminated without cause after 23 months.

The motion judge found the early termination clause unenforceable and awarded common law reasonable notice damages subject to mitigation.

The Court of Appeal allowed the appeal, holding that where an employment contract is for a fixed term and lacks an enforceable early termination provision, the employee is entitled to the salary and benefits for the unexpired portion of the term.

Furthermore, the court held that there is no duty to mitigate damages arising from the early termination of a fixed-term contract.

The appellant employer appealed a costs award of $6,000 granted to the respondent employee following a summary judgment motion in a wrongful dismissal action.

The employer argued the motions judge's reasons were insufficient and inconsistent with her findings, given the employee had rejected pre-litigation offers that exceeded the final judgment.

The Divisional Court dismissed the appeal, finding the motions judge properly considered that the employer's offers did not trigger Rule 49 costs consequences and that the employee's unreasonable rejection of pre-litigation offers justified the significantly reduced costs award.

The costs decision disclosed no error in principle and was entitled to deference.

The appellant, a second mortgagee on a matrimonial home, appealed a judgment denying its claim for additional funds and interest based on unregistered amending agreements.

The appellant argued its claim trumped that of an execution creditor.

The Court of Appeal dismissed the appeal, finding the appellant had previously admitted its security only applied to the registered principal amount and had taken an inconsistent position in a separate action.

The court also rejected the appellant's equitable mortgage argument and upheld the costs awards.

Following a summary judgment awarding the plaintiff 16 months' pay in lieu of notice for wrongful dismissal, the parties disputed the calculation of damages.

The court ruled that the plaintiff was entitled to a car allowance and that his commissions should be calculated separately based on actual earnings pro-rated over the notice period.

However, the court agreed with the defendant that the award is subject to statutory deductions, including the repayment of Employment Insurance benefits to the Receiver General.

The court also held that pre-judgment interest must be calculated on the shortfall of payments during the salary continuance period, rather than as a lump sum, following the Court of Appeal's decision in Lowndes.

The moving party brought a motion to vary an order of a single judge that lifted a stay because the moving party failed to provide credible proof of financing without conditions.

The Divisional Court dismissed the motion, finding no error of law or palpable and overriding error of fact in the single judge's decision.

The court also held that the moving party could not seek to vary an earlier order after having accepted it and failed to comply with its conditions.

Costs of $500 were awarded to the responding party.