Sarah Kemp

The applicant purchased the assets of a media company from secured debenture holders pursuant to an Assets Purchase Agreement that expressly excluded employment contracts and related liabilities.

When the predecessor company's union brought an application before the OLRB under s. 69 of the Ontario Labour Relations Act, the applicant settled for unpaid wages and vacation pay owed to employees prior to the closing date and sought indemnification under the APA.

The court held that the settlement payments fell within the excluded liabilities under the APA and that the applicant was entitled to full indemnification of $58,000, comprising the settlement amount and legal fees.

The court further found that the applicant's public announcement of its acquisition did not constitute a breach of the APA's confidentiality clause and would not, in any event, entitle the respondents to set off the indemnification owed.

The applicant sought recognition and enforcement of two Ukrainian judgments against the respondent in Ontario.

The respondent opposed the application on three grounds: (1) the amendment seeking to enforce a 2022 BVI judgment recognizing the Ukrainian judgments was impermissible as a derivative judgment; (2) the claim was statute-barred under the Limitations Act, 2002; and (3) the Ukrainian judgments violated natural justice.

The court found the application was statute-barred, as the limitation period for enforcement commenced when the Ukrainian judgments became final in 2018, not when the 2022 BVI judgment was rendered.

The court also found that seeking enforcement of the 2022 BVI judgment constituted an impermissible derivative judgment.

The application was dismissed with costs awarded to the respondent.

The plaintiff estate sought costs following a trial where it recovered a portion of the $30 million claimed from the defendant, including an 80% interest in a property.

The defendant counterclaimed for sexual abuse, which was dismissed.

Both parties sought costs.

The court found the plaintiff was the more successful party and entitled to costs.

The court declined to award substantial indemnity costs to either party based on unproven allegations of fraud and sexual abuse, finding the allegations did not amount to reprehensible conduct warranting chastisement.

Applying the factors in Rule 57.01, the court fixed the plaintiff's costs at $800,000 on a partial indemnity basis, reflecting its divided success.

The moving parties sought leave to appeal the decision of Parghi J. dated November 21, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding parties.

The Plaintiffs (Arkland Homes Inc. et al. and Zhen Kang) brought an action seeking declarations regarding mortgage standing and to set aside property sales.

This decision addresses three interlocutory motions: the Plaintiffs' motion for an injunction to restrain the sale of the Bannatyne Property, Defendant Qiong Huang's motion for possession of 177 Rumsey Road, and the Plaintiffs' cross-motion for a Certificate of Pending Litigation (CPL) on 171 Rumsey Road.

The court granted the Plaintiffs' injunction and CPL motions, finding serious issues to be tried regarding the mortgage defaults, the application of a significant payment, and allegations of bad faith and improper conduct by the Defendants Ming Wei Liu and Yizi Feng, including the hasty sale of properties below market value and an alarming "self-help" attempt to evict occupants.

The court denied Ms. Huang's motion for possession, concluding that whether she was a bona fide purchaser for value was a genuine issue requiring trial.

The court also ordered consolidation and case management for all related litigation.

The Estate of William Waters sought the return of over $30 million advanced by the deceased to his wife's personal support worker, Gillian Henry, over a ten-year period.

The Estate argued the funds were investments held on resulting trust, while Henry maintained they were gifts made during a secret intimate relationship.

The court found that the deceased, a sophisticated businessman, intended most of the advances as gifts, except for funds invested in a horse stable business (King of Hearts), which were held on resulting trust.

The court also found that the deceased improperly gifted $2.85 million of his incapacitated wife's money to Henry, which constituted unjust enrichment and must be returned.

Henry's counterclaim for sexual battery was dismissed due to lack of credibility and absence of corroboration required under the Evidence Act.

The plaintiff brought a motion seeking the recognition and enforcement of a foreign arbitral award issued by CIETAC against the defendant for over $233 million CAD.

The defendant argued the motion constituted an improper partial summary judgment because the plaintiff's action also included a second stage seeking declarations against the defendant's wife regarding Ontario real properties.

The court recognized the arbitral award, finding no grounds to refuse enforcement under the International Commercial Arbitration Act, 2017, and held that partial summary judgment was appropriate as the recognition issue was discrete and would not cause delay or risk inconsistent findings.

The applicant, Competition Motors Limited (CML), sought to set aside an arbitral award from an Appeal Panel under the National Automobile Dealer Arbitration Program (NADAP) Rules, pursuant to sections 46(1)3 and 6 of the Arbitration Act, 1991.

CML argued the Appeal Panel exceeded its jurisdiction by applying an incorrect standard of review (correctness on facts without deference, akin to a de novo hearing) when reversing an initial arbitral decision that found Toyota Canada Inc. (TCI) unreasonably withheld consent to CML's dealership sale.

The court dismissed CML's application, finding that the issue raised was not one of true jurisdiction under s. 46(1)3, and even if it were, the Appeal Panel acted within its mandate by interpreting and applying the NADAP Rules' unique correctness standard for both law and fact, which allows for a re-evaluation of evidence to reach a "better" conclusion without conducting a full de novo trial.

The court also dismissed the procedural fairness argument as it was contingent on the jurisdictional claim.

The defendants brought a motion to compel the plaintiff estate to produce unredacted solicitor files of the deceased, William Waters, arguing that the "wills exception" to solicitor-client privilege should extend to determine the deceased's intent regarding inter vivos transfers.

The estate claimed the transfers were impressed with a resulting trust, while the defendants asserted they were gifts.

The court found that the previous order allowed for disputes over privilege and that applying res judicata to informal case management directions would inhibit the process.

The court extended the "wills exception" from Geffen v. Goodman Estate to this case, finding ambiguity in the deceased's will regarding the nature of the transfers.

It ordered the production of all information shedding light on whether the transfers were gifts, including information on the deceased's capacity and susceptibility to undue influence, subject to a protective order to prevent a fishing expedition for claims against the solicitor.