Simon Bieber

The Ontario Securities Commission appealed an order appointing a receiver over Cacoeli Asset Management and related entities pursuant to section 129(1) of the Securities Act.

The appellants argued that the appointment of a receiver requires a strong prima facie case of breaches of the Act.

The Court of Appeal upheld the lower court's decision, holding that the correct evidentiary standard is a serious concern that there have been possible breaches of the Act.

The court found that the OSC had met this standard based on evidence that funds raised from investors for specific projects were diverted to other purposes without investor disclosure or consent.

The applicant sought an order disqualifying and removing the arbitrator in a mediation-arbitration proceeding between a condominium corporation and a hotel corporation regarding disputes over cost-sharing, maintenance, and utilities.

The arbitrator disclosed that a proposed expert witness for the applicant had recently referred an unrelated litigation matter to the arbitrator's law firm, with the arbitrator tasked with carriage of that matter.

The arbitrator initially identified a clear appearance of conflict and proposed three options, including his resignation or waiver by both parties.

However, after the respondent objected to the arbitrator's withdrawal, the arbitrator reversed his position and refused to resign.

The court found that while a single business referral might not justify disqualification, the subsequent events—including the arbitrator's initial determination of a clear appearance of conflict, his reversal of position, and the manner in which he attempted to manage the conflict—gave rise to a reasonable apprehension of bias.

The application was granted and the arbitrator was disqualified.

This is a costs endorsement following a judgment in which the court found Yahya Dikeni Hashiru liable for unjust enrichment in the amount of $713,089 and Spotless Consultancy Inc. liable for fraud in the amount of $2,726,050 plus punitive damages of $250,000.

The plaintiffs sought substantial indemnity costs of $100,000 against both defendants.

The court awarded substantial indemnity costs of $100,000 against Spotless based on the fraud finding, but awarded only $60,000 against Hashiru on a lesser scale given that the successful claim was for unjust enrichment rather than fraud.

The court also ordered a post-judgment Mareva injunction in aid of execution for 9 months and granted tracing orders regarding two Ghanaian entities.

This decision concerns the sanction for contempt and the allocation of costs following findings that the defendants failed to comply with a court order (the "Turnover Order") in a complex commercial dispute.

The court awards full indemnity costs to the plaintiffs for the contempt motion, reduced by 25% due to Charter breaches, and substantial indemnity costs to the defendants for a successful Charter-based stay motion.

The court also addresses the principles of set-off and mutuality of debt in the context of competing costs awards.

This decision concerns two related shareholder applications under section 241 of the Canada Business Corporations Act involving SpassMed Inc. and its affiliates.

The court reviews the procedural history, including consolidation of the applications, amendments to the relief sought, and the appointment of an interim monitor.

Due to significant disputes of fact and credibility, the court orders that the consolidated application be converted to an action to allow for a full trial process.

The appellants appealed a trial judgment that granted declaratory relief to the respondents and dismissed the appellants' counterclaim for fees.

The appeal focused on whether management agreements were unauthorized and if the respondents were estopped from arguing their invalidity.

The Court of Appeal found no palpable and overriding error in the trial judge's interpretation of the agreements or her finding on estoppel.

The appeal was dismissed, and leave to appeal the costs order was also dismissed.

This endorsement addresses a contempt motion brought by the plaintiffs against the defendants for non-compliance with a prior trial decision, and a cross-motion by the defendants to stay the contempt motion due to alleged Charter breaches by the plaintiffs.

The court found the defendants in contempt for several failures to comply with the original order, including withholding records and refusing to execute necessary assignments.

However, the court also found that the plaintiffs committed Charter breaches (failure of timely disclosure and case splitting) in their prosecution of the contempt motion, which curtailed the evidence that could be relied upon.

The stay motion was dismissed, but the scope of contempt findings was limited due to the excluded evidence.

The court ordered the defendants to comply with outstanding obligations within 30 days.

This endorsement addresses the costs of an eight-day trial where the plaintiffs were entirely successful in their claims and in dismissing the defendants' counterclaim.

The plaintiffs sought substantial indemnity costs, arguing the defendants' conduct, including unsubstantiated fraud allegations and disclosure failures, warranted an elevated scale.

The defendants opposed the quantum and scale, and the plaintiffs also sought costs against the defendants' principal, Mr. Tajbakhsh, and an unidentified third-party funder.

The court awarded the plaintiffs $1 million in substantial indemnity costs, finding the defendants' conduct, while not amounting to fraud on the court, justified the elevated scale.

However, the court declined to award costs against Mr. Tajbakhsh personally or the third-party funder, as the high threshold for non-party costs (abuse of process or fraud) was not met.

The court also explicitly prohibited the defendants from using Limited Partnership funds to satisfy the costs award.

The defendants, including five John Doe police officers, brought a motion seeking a publication ban, sealing order, and pseudonym order to protect their identities in a civil action concerning the shooting death of Ejaz Choudry.

The court dismissed the motion, finding that the defendants failed to meet the high evidentiary burden required to justify an exception to the open court principle.

The court emphasized the public interest in transparency and police accountability, particularly in cases involving state action and racialized communities, and found the evidence of risk to the officers' safety to be speculative.

The defendants by counterclaim (West Face Capital Inc., Gregory Boland, and Bruce Langstaff) moved for a Mareva injunction to prevent the plaintiffs by counterclaim (The Catalyst Capital Group Inc., Callidus Capital Corporation, and Newton Glassman) from removing assets from Ontario.

The moving parties alleged that Mr. Glassman was relocating to the Bahamas and dissipating assets to avoid potential judgments arising from a massive corporate espionage and defamation campaign.

The court found that while the moving parties established a strong prima facie case of deceitful and tortious conduct by Mr. Glassman, they failed to prove a real risk that assets were being removed with the specific intent to defeat creditors.

The court also found the moving parties delayed in bringing the motion and failed to establish irreparable harm.

The motions for a Mareva injunction were dismissed.

This appeal concerns a failed real estate transaction where both parties mistakenly believed the property was subject to a prescriptive easement.

The purchaser, Roalno Inc., refused to close without a price abatement or extinguishment of the supposed easement.

The vendors refused these terms.

Roalno sued for specific performance with an abatement.

The trial judge dismissed the action, finding Roalno breached the agreement by refusing to close.

The Court of Appeal upheld this decision, concluding that Roalno had anticipatorily breached the contract by demanding new terms based on a legally erroneous belief, and that the vendors had accepted this repudiation, thereby ending the contract.

The court also clarified that statutory rights under the Road Access Act do not constitute an easement or right-of-way under the agreement's warranties.

The plaintiff and a defendant mortgagee brought a motion for summary judgment and distribution of sale proceeds paid into court following the sale of two properties by power of sale.

The court found that the defendant owners had engaged in fraudulent conduct, including registering sham mortgages and fraudulently discharging a valid mortgage, to defeat creditors.

The court granted summary judgment, reinstated the fraudulently discharged mortgage, and ordered the distribution of the sale proceeds to the valid mortgagees, including their legal costs on a complete indemnity basis.

The plaintiffs, limited partners in three real estate development limited partnerships, sought declarations validating their special resolutions to remove and replace the original general partners.

The dispute arose after the original general partners issued capital calls to pay management fees to an affiliated company, which the plaintiffs argued were unauthorized.

The court found the capital calls were invalid as the management agreements were not approved by special resolution and the general partners failed to seek external financing first.

The court upheld the plaintiffs' special resolutions removing the original general partners due to multiple unremedied defaults, including failure to provide access to financial records, co-mingling of funds, and unauthorized related-party transactions.

The defendants' counterclaims were dismissed.

The plaintiff provided electrical engineering and consulting services for a cannabis grow operation on tribal lands in California.

The project was shut down by a federal law enforcement raid, and the plaintiff was left with unpaid invoices for its work and materials.

The plaintiff sued the defendant, who had provided the funding for the project, arguing that the site manager who hired the plaintiff was acting as the defendant's agent.

The court found that the defendant and the tribe were in a partnership to operate the project, and that the site manager had actual authority to contract on behalf of the partnership.

The defendant was held liable for the unpaid invoices plus contractual interest.

The Law Society of Ontario brought a motion for contempt against Mr. Sutharsan for breaching a 2021 injunction that prohibited him from providing unauthorized legal services.

Mr. Sutharsan consented to the contempt order, and the matter proceeded to a penalty hearing.

The LSO sought 30 days incarceration.

The court, applying the five-factor test for civil contempt sanctions, found Mr. Sutharsan remorseful and his breaches not egregious enough to warrant incarceration.

The court imposed a penalty of 100 hours of community service and ordered Mr. Sutharsan to pay $6,000 in costs to the LSO, payable at $300 per month.

This is an appeal from a decision dismissing an action for abuse of process due to the appellant's failure to immediately disclose a settlement agreement.

The appellant, Skymark Finance Corporation, entered into Minutes of Settlement with a key defendant, Lorraine Smith, which fundamentally altered the litigation dynamics by changing an adversarial relationship into a cooperative one.

Skymark failed to disclose this agreement for eight months, only doing so after being threatened with an abuse of process motion.

The motion judge stayed the action, and the Court of Appeal upheld this decision, reiterating the strict obligation for immediate disclosure of such agreements and confirming that the absence of prejudice does not excuse non-compliance.

The plaintiffs brought a post-trial motion to compel the defendants to cooperate in executing the sale and property management issues directed in a previous judgment, which found the plaintiffs to be 50% beneficial owners of the subject property.

At the hearing, the parties agreed on the form of the formal judgment and the mechanics for listing the property, managing it in the interim, and handling rental income.

The court ordered the defendants to cooperate with the plaintiffs in selling the property and to pay rents into court or trust, less agreed-upon expenses, with an order going as submitted by mutual agreement.

Following a successful 7-day trial regarding a commercial property dispute, the plaintiffs sought costs on a partial indemnity basis up to the date of their Rule 49 offer, and substantial indemnity thereafter.

The court found the plaintiffs' offer was more favourable to the defendants than the final judgment.

Noting the defendants' repeated failures to produce documents and delay tactics over the 9-year litigation, the court awarded the plaintiffs $650,000 in costs inclusive of disbursements and HST.

The plaintiffs' motion for interlocutory injunctive relief and a certificate of pending litigation was dismissed.

The defendants and non-party Project Companies sought costs.

The plaintiffs opposed an award of costs or argued for a reduced amount, but failed to provide their own costs outline.

The court rejected the plaintiffs' arguments to deny costs or defer them to the trial judge.

Applying the principle that an attack on costs without providing one's own dockets is an 'attack in the air,' the court found the claimed amounts reasonable and awarded partial indemnity costs of $65,000 to the defendants and $39,000 to the Project Companies.

The applicants brought a Charter challenge against the public funding of Roman Catholic separate schools for non-Catholic students and high school students in Ontario.

The respondent moved to strike the application under Rule 21.01.

The court granted the motion, finding that the Supreme Court of Canada had already determined these issues in the Reference re Bill 30 decision, which held that minority education rights under section 93 of the Constitution Act, 1867 are immune from Charter scrutiny.

The court concluded there was no new legal issue or fundamental change in circumstances that would allow it to depart from binding precedent, rendering the application doomed to fail.