Sean M. Grayson

The decision concerns the interpretation of a settlement agreement between siblings Marvin Rubner, Joseph Rubner, and Brenda Bistricer regarding the division of special shares in Kalber Developments Incorporated, a family corporation, and the estate of their mother, Eda Rubner.

The court finds that the Kalber Settlement Agreement and the Will Settlement Agreement do not operate as a disclaimer or renunciation by Brenda of her interest in the special shares, and that Joseph, not being a party to the agreements, cannot claim a benefit under them.

The application by Marvin is granted, and costs are fixed against Joseph.

The plaintiff sought to certify a class action alleging breach of fiduciary duty, knowing assistance, and knowing receipt against investment advisors and their associated companies.

The claims arose from the defendants' recommendation of investments in Invoice Payment System Corporation (IPS), a company in which the advisors had a significant undisclosed ownership stake and from which they received commissions.

While the Court of Appeal had previously found the pleadings disclosed a cause of action for a class-wide fiduciary duty, this court dismissed the certification motion.

The court found that the proposed common issues regarding the existence, nature, and breach of a class-wide fiduciary duty could not be determined in common across the class, as individual inquiries into each client's specific circumstances, level of trust, reliance, and understanding of disclosures were necessary.

Consequently, the claims for knowing receipt, knowing assistance, and remedies also failed the certification test.

This case involved a shareholder dispute where OneMove Capital Corporation sought to affirm the validity of its proposal under s. 99 of the Ontario Business Corporations Act (OBCA) to remove and replace a director, and to compel Dye & Durham Limited to include this proposal in its information circular.

Dye & Durham brought a counter-application to omit the proposal and sought a declaration that OneMove and Tyler Proud breached a 2020 Investor Rights Agreement (IRA).

The court ruled that a shareholder cannot use the s. 99 proposal mechanism to remove a director, as director removal requires a special meeting requisitioned under s. 105 of the OBCA.

However, the court also found that OneMove's proposal, if permissible, would not fall under the "personal grievance" exception of s. 99(5)(b) or (b.1), as it related significantly to the company's business affairs.

Furthermore, the court determined that the IRA did not prohibit OneMove from seeking to remove its nominee director through proper OBCA channels, and dismissed Dye & Durham's other alleged breaches of the IRA as theoretical.

This motion addressed three issues: the addition of parties to a trust dispute, the appropriate method of service for parties residing in Israel under the Hague Service Convention, and costs.

The court ordered the addition of the issue of Gershon Kaplan and Adina Gordon as party defendants, including the Children's Lawyer for minor/unascertained beneficiaries, finding their presence necessary for effective adjudication.

Regarding service abroad, the court held that Article 10(a) of the Hague Service Convention authorizes service of an originating process by postal channels, rejecting the argument that "send" does not include "serve" and clarifying that prior case law suggesting otherwise (e.g., Wilson v. Servier Canada Inc.) is no longer good law.

The court directed service on the added parties in Israel by a method authorized by Article 10, including registered mail.

No costs were awarded due to the plaintiff's non-opposition on the first issue and the novelty of the second issue.

This is an appeal from the Divisional Court, which upheld a certification judge's decision that a class action claim for breach of fiduciary duty against investment advisors did not disclose a cause of action.

The Court of Appeal for Ontario examined whether the claim adequately pleaded an ad hoc fiduciary relationship, considering factors beyond just professional rules.

The Court found that the lower courts erred by narrowly interpreting the pleading, and that the claim, taken as a whole, sufficiently pleaded vulnerability, trust, reliance, and discretion, in addition to breaches of professional standards.

The appeal was allowed, declaring that the claim did disclose a cause of action for breach of a class-wide fiduciary duty, and the matter was remitted for redetermination of other certification criteria.

The appellant appealed a decision refusing to certify her class proceeding for breach of fiduciary duty against her investment advisors.

The appellant argued that the advisors' professional rules and codes of ethics established a fiduciary relationship on a class-wide basis.

The Divisional Court dismissed the appeal, holding that an ad hoc fiduciary duty between a financial advisor and a client requires a multi-factor, case-by-case analysis, and cannot be established solely based on professional rules and ethical codes.

This was a costs decision following the plaintiff's unsuccessful motion to certify a proposed class proceeding alleging breach of fiduciary duty, knowing assistance, knowing receipt, breach of contract, and oppression.

The court reviewed the general costs principles under s. 131 of the Courts of Justice Act, rule 57.01(1) of the Rules of Civil Procedure, and the specific principles governing class proceedings costs, emphasizing fairness, reasonableness, and access to justice.

Although the successful defendants sought substantial indemnity costs based on serious unproven allegations and the continued pursuit of non-certifiable claims, the court held the action was not frivolous or vexatious and declined punitive costs.

Partial indemnity costs were awarded in the amounts claimed by the successful defendants.

The plaintiff brought a motion to certify a class action against her investment advisors and related corporations, alleging breach of fiduciary duty, knowing assistance, knowing receipt, breach of contract, and oppression in relation to the sale of promissory notes.

The court dismissed the certification motion, finding that the claims did not satisfy the cause of action, common issues, and preferable procedure criteria under the Class Proceedings Act, 1992.

The court held that the existence of a fiduciary duty and any breach thereof would require individualized assessments, and that the secondary claims for knowing assistance and knowing receipt were similarly flawed and lacked a basis in fact.

In a long-standing and highly acrimonious family trust dispute, the court considered multiple motions, including motions to dismiss for delay and abuse of process, and motions for a further and better accounting.

The court found that the plaintiffs (two of the sons) had engaged in an abuse of process through a 'scorched-earth' litigation strategy, including failing to produce relevant documents they controlled, changing counsel repeatedly, refusing to mediate, and launching collateral attacks.

Consequently, the court dismissed their actions.

However, recognizing that the trusts still required an accounting for the benefit of the other beneficiaries (the grandchildren), the court ordered the remaining trustees to provide a further and better accounting, and ordered the redemption of the matriarch's shares in the underlying holding company.

The appellant, Marvin Rubner, appealed a lower court decision that found no binding settlement agreement had been reached between him and his brother, Joseph Rubner, regarding their real estate business interests.

The application judge had concluded that Joseph's counsel had limited authority to negotiate only the minutes of settlement, not the "Deal Points" and that Marvin's counsel was aware of this limitation.

The Court of Appeal dismissed the appeal, affirming that the application judge's interpretation of the agreement and application of the test for ostensible authority were questions of mixed fact and law, reviewable only for palpable and overriding error, which was not demonstrated.

The respondent brought a motion to stay an application commenced by the applicant to set aside a Notice to Arbitrate.

The core issue was whether the parties had reached a binding settlement agreement regarding a family business dispute.

The court found that the applicant's counsel only had authority to negotiate comprehensive minutes of settlement, not to bind the applicant to the material terms or 'deal points' proposed by the respondent.

As there was no mutual intention to agree, no binding settlement was reached.

The motion for a stay and the application to appoint an arbitrator were dismissed, and the application to set aside the Notice to Arbitrate was granted.

This appeal concerns whether a court has jurisdiction to extinguish a third party's gross overriding royalty (GOR) interest in land through a vesting order in a receivership proceeding.

The Court of Appeal held that while the court has jurisdiction under section 243 of the Bankruptcy and Insolvency Act to grant vesting orders, the motion judge erred in exercising that jurisdiction to extinguish the appellant's GORs, which constituted interests in land akin to ownership interests rather than fixed monetary claims.

However, the appellant failed to appeal within the prescribed 10-day period under the BIA Rules, and the justice of the case did not warrant an extension of time.

The appeal was dismissed, though the appellant retained the $250,000 payment it had received.

The plaintiffs advanced funds to the defendants for a real estate investment.

When the investment failed, the plaintiffs obtained a Certificate of Pending Litigation (CPL) against the defendants' personal residence.

To facilitate the sale of the residence, the parties agreed to discharge the CPL and hold $600,000 from the sale proceeds in court pending a further motion.

The plaintiffs moved to keep the funds in court under Rule 45.02, while the defendants sought their release.

The court found that the plaintiffs established a right to a specific fund, a serious issue to be tried, and that the balance of convenience favoured preserving the funds.

The plaintiffs' motion was granted.

Following a motion where the moving party successfully sought to withdraw admissions involving approximately $14,000,000, the court determined the issue of costs.

The court found that the responding parties took a tactical and precarious position in opposing the motion, as the granting of leave was foreseeable absent any evidence of prejudice.

Costs were awarded to the moving party fixed at $15,000.

The moving party, in the midst of complex family trust litigation, sought leave to withdraw admissions made in a previous affidavit and to file three new affidavits.

The moving party argued the admissions regarding multi-million dollar shareholder loans were made inadvertently due to confusion and reliance on her former, now-deceased counsel.

The responding parties opposed, arguing the admissions were formal and the new evidence was an attempt to repair her case mid-hearing.

The court granted the motion, finding the admissions were likely inadvertent, raised a triable issue, and caused no non-compensable legal prejudice to the responding parties.

The court emphasized the need to decide the case on its true merits rather than a solicitor's or party's mistake.

The respondent was successful on a half-day motion brought by the applicants to remove her solicitors and add a defendant.

She sought costs on a substantial indemnity basis of $81,193.45, or alternatively on a partial indemnity basis of $61,637.67.

The court found that substantial indemnity costs were not warranted and that the requested amounts were disproportionate.

Costs were fixed and awarded to the respondent in the total amount of $42,520.33.

The applicants brought a motion to remove Cambridge LLP as solicitors of record for Sheila O’Donovan and to add Adam Cappelli as a party respondent.

The court applied a nine-factor test to assess the solicitor removal request, considering the likelihood of Mr. Cappelli being a witness and potential conflicts.

The court found no real conflict and upheld the client's right to choose counsel.

The motion to add Mr. Cappelli as a respondent was dismissed due to the advanced stage of the proceedings and delay by the applicants, though without prejudice to a future application for passing accounts.

The court issued an endorsement following the dismissal of the plaintiff's summary judgment motion on a mortgage guarantee.

This endorsement addresses the costs of that motion and the plaintiff's subsequent request for a mini-trial or expedited trial.

The court reserved the costs of the summary judgment motion to the trial judge, finding it more just given that the claims and defences remained live and the work done would reduce trial costs.

The plaintiff's request for a mini-trial was denied, as it would not allow for proper development of defences due to prior evidentiary deficiencies and lack of discovery.

The court reiterated the need for a case conference to address the action's progress, particularly in light of a key individual's failing health, and to consider an expedited trial.

The plaintiff, 2383431 Ontario Inc., sought summary judgment against individual defendants who guaranteed a mortgage for Rose of Sharon (Ontario) Retirement Community.

The defendants argued the guarantee was limited to interest only and raised equitable defences related to construction defects and the relationship between the original mortgagee (IWOK) and the builder (Unimac).

The court dismissed the motion for summary judgment, finding that the complex factual matrix, including the disputed scope of the guarantee and the relationships between the parties, presented genuine issues requiring a trial.

The judge emphasized that the record did not allow for confident findings of fact or a proportionate resolution of the dispute.

The appellant former directors and officers of Look Communications Inc. sought advance funding for their legal costs to defend an action brought against them by the corporation for breach of fiduciary duty.

The corporation resisted the claims under s. 124(4) of the Canada Business Corporations Act, arguing the appellants had not acted in good faith.

The application judge refused advance funding, finding the corporation had established a strong prima facie case of bad faith regarding equity cancellation payments and legal retainers.

The Court of Appeal dismissed the appeal, confirming that s. 124(4) applies to actions brought by the corporation and that the strong prima facie case standard is the appropriate test for denying advance funding.