Sean F. Dunphy

The court determined costs following a successful application where oppression and breach of fiduciary duty were found, leading to a corporate wind-up.

The applicant sought substantial indemnity costs, which were awarded due to the seriousness of the misconduct, including breaches of statutory and fiduciary duties, self-dealing, and obstructive litigation conduct by the respondents.

The court also directed that the costs of the litigation be borne solely by the individual respondents, with adjustments made during the corporate winding-up process to prevent the applicant from indirectly bearing the respondents' costs.

A motion to strike brought by the respondents was also dismissed with costs to the applicant.

The Monitor sought court advice and directions regarding a proposed extension of an Asset Purchase Agreement (APA) closing date and alleged material breaches of confidentiality obligations by the purchaser, Lagasco Inc., in a Companies' Creditors Arrangement Act (CCAA) proceeding.

The court authorized the Monitor to agree to a final three-week extension of the APA, noting the purchaser's good faith in dealing with unexpected financing issues, but expressed serious concerns about the confidentiality breaches.

The court directed the Monitor to ensure the extension was without prejudice to rights arising from these breaches and to prepare for a potential resumption of the sales process if the APA failed to close.

A Paraguayan pension fund sued over a multi-year fraudulent investment scheme involving shell corporations, forged and misleading investment materials, secret kickbacks to insiders, and concealment of the true nature of several Canadian investments.

The court found that the moving parties’ funds were diverted through Genesis, First Canadian, Union, and Columbus Note structures by deliberate fraudulent misrepresentations, breaches of fiduciary duty, knowing assistance, and knowing receipt.

The court imposed liability for over $20.8 million in damages against the principal fraud actors, declared broad constructive trust and tracing remedies, and awarded punitive damages against the principal individual wrongdoers.

Additional liability was imposed against parties involved in the Columbus Notes transactions, and full indemnity costs were awarded to the plaintiff, with substantial indemnity costs on Union Securities’ cross-claim.

The plaintiff, Canadian National Railway Company (CN), brought a motion to compel the production of files and examination for discovery of three non-party lawyers: Mr. Brown, Mr. Lof, and Ms. Assuras.

The motion arose from a Mareva and Anton Pillar order and a subsequent summary judgment against Greyslone and Belview, which were found to have no legal status at the time of certain transactions and failed to account for $661,000.

Ms. Assuras, counsel for Greyslone and Belview, opposed the motion, asserting privilege, while Mr. Lof and Mr. Brown took no position.

The court found Mr. Czerlau's (who instructed Ms. Assuras) testimony to be evasive and misleading, and inferred that Greyslone and Belview were not acting at arm's length to Mr. Holmes, suggesting they were shams.

Consequently, the court proposed to draw negative inferences against Greyslone and Belview's bona fides, disallow claims of privilege, and ordered the production of the entire files of Ms. Assuras, Mr. Lof, and Mr. Brown to the plaintiff, subject to a 14-day period for further submissions.

The accused, Muse Abdirahim, brought a severance application under s. 591(3)(a) of the Criminal Code for three sets of armed robbery charges.

The Crown resisted, intending to use similar fact evidence.

The court granted severance in part, ordering a separate trial for charges related to the second incident (Mac's Milk) due to the objective reasonableness of the accused's intention not to testify and the tenuous nature of the Crown's similar fact evidence for that incident.

However, severance was denied for the first (Stay Inn) and third (Cell Phone store) incidents, as DNA evidence strongly linked them, the similar fact application was deemed viable, and concerns regarding trial efficiency, risk of inconsistent verdicts, and victim inconvenience outweighed the prejudice to the accused.

This application concerned the validity of primary wills for two testators, John Douglas Milne and Sheilah Marlyn Milne, which granted executors discretion to determine which assets were subject to the will based on whether probate was required.

The executors sought certificates of estate trustee with a will for these primary wills.

The court dismissed the applications, finding the primary wills invalid due to a lack of certainty of subject matter.

The court held that the subject matter of a trust, including a testamentary trust, must be objectively ascertainable at the time of death, without relying on the retroactive discretion of the estate trustees.

The secondary wills, which included all property without such discretionary exclusions, were deemed valid.

The applicants, first mortgage holders, sought an order for three months' interest under s. 17 of the Mortgages Act or their mortgage terms, after their mortgaged properties were sold by a court-appointed receiver.

The court dismissed the application, holding that s. 17 does not apply to payments of sale proceeds by a court-appointed receiver to a secured creditor.

A receiver is not a "person entitled to make such payment" under s. 17, nor is it an agent of the debtor or subsequent mortgagee.

The court found no material distinction between private and court-appointed receivers for the purpose of s. 17, emphasizing the provision's historical intent to protect mortgagors seeking relief from forfeiture, not to benefit mortgagees realizing on security.

The applicant, a co-founder and equal shareholder of Boothworks Inc., was dismissed and removed as a director and officer by the other two co-founders.

The applicant sought a fair market value purchase of his shares, alleging oppression.

The respondents counter-applied, alleging breach of fiduciary duty and seeking damages for loss of a major client (Spin Master) that had a personal relationship with the applicant.

The court found that the respondents' actions constituted oppression, as they unfairly disregarded the applicant's reasonable expectations of equality in the company.

The court dismissed the counter-application, finding no breach of fiduciary duty by the applicant or other counter-respondents, as the client relationship was personal to the applicant and not an asset of Boothworks.

The court ordered the respondents to purchase the applicant's shares at fair market value, with specific valuation guidelines.

The applicant, as estate trustee, brought an oppression application alleging breach of fiduciary duties and corporate opportunity appropriation by the individual respondents concerning the "Greystar" transaction and mismanagement of Di Battista Gambin Developments Limited (DBG).

The court found that the individual respondents breached their fiduciary duties and statutory obligations under the OBCA by appropriating a corporate opportunity (Markham property) for Greystar's benefit and engaging in self-dealing through a $3 million mortgage from DBG to Greystar without proper disclosure or shareholder approval.

The directors also abdicated their responsibilities, leading to an unjustified accumulation of cash.

The court concluded that the conduct was oppressive and unfairly prejudicial, warranting a remedy of either winding-up DBG and Whitwood or a buy-out of the applicant's interests by the DiBattista respondents at fair market value, along with an accounting of benefits from the Greystar transaction.

The plaintiff, AstraZeneca Canada Inc., applied for a Mareva injunction against the defendants, alleging a sophisticated fraud scheme involving duplicate claims and inflated drug reimbursements under AstraZeneca's patient programs.

The court found a strong prima facie case of fraud based on multiple suspicious factors, including a significant presence of duplicate claims, a large spike in reimbursement volumes, unusual drug claim patterns, lack of corresponding drug purchases, and frustrated audit attempts.

Applying the five requirements for a Mareva injunction, the court found full and frank disclosure, fulsome particulars of the claim, sufficient assets in Ontario, and a serious risk of asset dissipation due to the defendants' evasive actions (e.g., avoiding audits, sudden business closure, sale of an expensive car, and travel).

The balance of convenience favoured the plaintiff, and there was a risk of irreparable harm without the injunction.

A worldwide injunction was granted against the individual defendants and most corporate defendants, with Shepherd RX Pharmacy Inc. temporarily excluded due to insufficient evidence at this stage.

This decision addresses the issue of costs following the dismissal of an application brought by beneficiaries against estate trustees.

The court reaffirmed its earlier decision to award costs to the respondent estate, applying the "loser pay" principle in estate litigation.

The court found the applicant's claims lacked merit and criticized his conduct throughout the litigation, including inefficient pursuit of claims, numerous adjournments, and groundless allegations of misconduct.

The applicant's plea of impecuniosity was rejected due to a lack of supporting evidence.

The court awarded substantial indemnity costs of $155,000 to the respondents, to be offset against future distributions to the applicant from the estate.

The Toronto Star and Kevin Donovan sought to unseal the estate files of Barry and Honey Sherman, who were murdered.

The estates, represented by their trustees, opposed this, citing privacy, dignity, and safety concerns for the victims' survivors due to the ongoing murder investigation and lack of known motive/perpetrator.

The court balanced the open court principle against these interests, finding that the respondents' privacy and security concerns outweighed the public interest in further disclosure of administrative estate details.

The court ordered the files sealed for an initial period of two years, with the possibility of renewal.

The defendants Chamath Palihapitiya and El Investco 1 Inc. brought a motion for summary judgment, arguing the plaintiffs lacked evidence for their claims, particularly conspiracy.

The plaintiffs opposed, asserting that the conspiracy claims against the moving parties could not be severed from claims against other defendants not party to the motion.

The court dismissed the motion, finding that granting summary judgment for a subset of defendants risked inefficiencies, conflicting findings, and multiple appeals, especially given the proximity of the trial and the intertwined factual matrix.

The applicant sought an oppression remedy or winding-up order against his brother and the family business, Clifton Plastics Ltd., regarding payments made to the brother after their father's retirement and subsequent incapacity.

The respondent brought a counter-application for an accounting and wrongful dismissal damages.

The court found no oppression but ordered a winding-up under s. 207 of the OBCA, requiring the applicant to purchase the respondent's shares at fair market value, reduced by $35,000 due to unequal contributions, and without attributing value to alleged shareholder loans.

The applicant, Dundee Oil & Gas Limited, sought approval for the sale of substantially all its assets and the assignment of associated executory contracts under s. 11.3 of the CCAA.

The court initially adjourned the matter to require further evidence regarding the purchaser's financial stability and ability to manage environmental remediation obligations.

After reviewing supplementary evidence, including cash flow forecasts and the purchaser's operational plans, the court was satisfied that the purchaser would be able to perform the obligations.

The court approved the transaction and the assignment of the contracts.

The applicants brought a motion for directions regarding four potential testamentary documents left by the deceased.

The court found that a 2000 holograph will was valid, but subsequent unsigned alterations increasing specific bequests were invalid.

A 2009 handwritten document was found to be a valid codicil that revoked the bequest of the residue to the deceased's estranged daughter.

This revocation resulted in a partial intestacy regarding the residue.

Despite the deceased's clear intention in the 2009 codicil to disinherit his daughter, the court held that under section 47(1) of the Succession Law Reform Act, the daughter was entitled to the residue as the sole surviving issue on intestacy.

Following the dismissal of an application to enforce Letters of Request from a US court, the court determined the costs payable by the applicants.

Pursuant to a prior consent order, the applicants were ordered to pay $260,888.72 for the respondents' reasonable direct costs of collecting and producing documents, which included third-party vendor fees and legal review time.

The court also awarded the respondents $75,000 in partial indemnity costs for successfully defending the application, finding the amount reasonable and proportional given the importance and stakes of the cross-border litigation.

The applicant husband brought an application seeking directions on the interpretation of his deceased wife's will, the removal of the estate's executors, and an immediate distribution of $652,705.35.

He argued that the will's treatment of his life interest in one-quarter of the residue created a partial intestacy upon his death.

The court rejected this interpretation, applying the golden rule of construction to find that the testatrix intended the remainder of his share to be divided among the other three shares.

The court also dismissed the claims for immediate distribution and removal of the executors, finding no maladministration and noting that the estate's delayed income was due to a separate foreign estate not controlled by the executors.

The applicant's husband died intestate, leaving a complex international estate.

The applicant sought an extension of the six-month deadline under section 6 of the Family Law Act to elect between an equalization payment and her entitlement under the Succession Law Reform Act.

The court granted a one-year extension, finding that the applicant needed more time to assemble a reasonable knowledge base to make an informed choice, the delay was incurred in good faith, and there was minimal prejudice to the estate.

Victims of a Ponzi scheme sued the bank used by the fraudster, alleging negligence and knowing assistance in breach of trust for failing to shut down the fraudster's accounts.

The court held that the plaintiffs did not prove their investments were held under an express trust, and the evidence did not establish that the bank had actual knowledge of the fraud or its moral equivalents of wilful blindness or recklessness.

Applying Livent and prior banking-fraud authorities, the court further declined to recognize a novel duty of care owed by a bank to third-party victims based only on constructive knowledge of a customer's fraud.

The action was dismissed in full.