Ted Frankel

The appeal concerned whether post-closing transactions triggered accelerated earn-out payment obligations under a share purchase agreement.

The court deferred to the application judge’s contractual interpretation and factual findings, concluding no trigger event requiring immediate full earn-out payment had been established.

The appeal was dismissed.

The plaintiffs in a class action sought to certify additional common issues.

The Landlord Defendants brought a preliminary motion to prevent this, arguing that a previous "Further Certification Order" (FCO) was a final certification order, or alternatively, that the plaintiffs required leave under s. 8(3) of the Class Proceedings Act, 1992, which should be denied.

The court dismissed the preliminary motion, finding no objective agreement that the FCO was a final certification order and that, consequently, no leave under s. 8(3) was required as the proposed motion was a continuation of the certification process, not an amendment to a final order.

The Court of Appeal for Ontario heard an appeal and cross-appeal concerning a share purchase agreement with earn-out milestones.

The appellants, former shareholders, alleged breach of contract and the duty of good faith by the respondent's predecessor, Origin House, particularly regarding a delayed transaction closing date impacting milestone payments.

The respondent cross-appealed the lower court's finding of a breach of the duty of honest performance.

The Court of Appeal dismissed the appeal, affirming that a finding of breach of the duty of honest performance does not create a legal presumption of loss without an evidentiary foundation of lost opportunity.

The court allowed the cross-appeal, finding a palpable and overriding error in the lower court's determination that the appellants were unaware of the delayed closing date, thereby setting aside the finding of a breach of the duty of honest performance.

The plaintiff, Intercity Properties Limited, brought a motion seeking indemnification for fees and costs related to enforcing an encroachment agreement against 1584904 Ontario Inc. and Community First.

The encroachment (a pylon sign) was removed by 1584904 after the application was commenced, rendering the primary relief moot, leaving only the issue of costs.

The court found both parties acted unreasonably, escalating a simple matter.

While 1584904 was more at fault for breaching the agreement and refusing a reasonable initial costs offer, Intercity also acted unreasonably by continuing a Superior Court application for injunctive relief that was no longer needed and by not pursuing less costly self-help remedies or Small Claims Court.

The court awarded Intercity $7,000 in partial indemnity costs against 1584904, finding this amount reasonable and within the contemplation of the parties at an earlier stage of the proceedings.

This is an appeal from a summary judgment motion that found the appellants liable for knowing assistance and knowing receipt in a fraudulent scheme.

The Court of Appeal found that the motion judge erred by drawing unwarranted inferences of liability based largely on the mere rejection of the appellants' evidence, rather than requiring positive proof.

The motion judge also made speculative and stereotypical findings regarding the appellants' credibility and financial arrangements.

The Court held that the rejection of a witness's evidence does not amount to positive proof of the opposite proposition.

The appeal was allowed, the summary judgment set aside, and the case remitted to the Superior Court for trial.

The plaintiff was overwhelmingly successful on a motion for interlocutory injunctive relief, including Mareva and Norwich orders, and sought costs of $118,417.86 on a substantial indemnity basis.

The defendants sought their own costs or, alternatively, that each party bear its own costs.

The court found the plaintiff was the successful party but applied the principle that costs of an interlocutory injunction are preferably reserved to the trial judge.

The court ordered the costs of the motion to be in the cause.

The plaintiff employer sought interlocutory injunctive relief, including Mareva and Norwich orders, and a certificate of pending litigation against a former employee and his wife.

The employee had created a fictitious vendor company, secretly awarded it contracts from the employer, and received over $675,000.

The court found a strong prima facie case of civil fraud, unjust enrichment, and breach of confidence.

The court granted the Mareva injunction and the certificate of pending litigation, finding a serious risk of asset dissipation.

However, the court declined to issue a Norwich order, instead ordering the defendants to provide a sworn affidavit of assets and bank records.

The applicants sought damages under a share purchase agreement for revenue and license milestone payments, and a working capital adjustment for tax credits.

The court interpreted the SPA provisions, including the "Unearned Milestone Payment Commitment" in the event of an Indirect Sale Transaction, and considered the purchaser's duty of good faith.

The court dismissed claims for milestone payments, finding the contract terms unambiguous and no actionable breach of good faith regarding impediments to earning milestones.

However, the court found a breach of the duty of honest performance for failing to disclose a delay in the closing date of the Indirect Sale Transaction, but no damages flowed from this breach as the applicants could not prove a lost opportunity.

The applicants were awarded the SR&ED tax credits without deduction for consultant fees.

The appellants, Monica Murad, Aaron Murad, and 997322 Ontario Inc., sought to appeal a non-competition order issued by a motion judge during the receivership of Mill Street & Co. Inc. The motion judge had included the appellants in the order, despite their not being directly implicated in obstruction or fraudulent licensing, because the Murad companies operated as family businesses.

The Court of Appeal found no jurisdiction under s. 193(a) of the Bankruptcy and Insolvency Act as the right to compete is a present, not future, right.

Leave to appeal under s. 193(e) was denied because the issue of making a non-competition order against a non-party did not arise, as the appellants were considered "Murad Parties" and treated as parties throughout the receivership.

The appeal was quashed.

The plaintiffs, Quantum Dealer Financial Corporation and NextGear Capital Corporation, brought a motion for summary judgment against the Guillen Defendants (Claudia Guillen Aracely, Jasmin Ivonne Guillen, 2564523 Ontario Inc., and Garnette C. Williams) and sought default judgment against Toronto Fine Cars and Leasing Inc. and Diego Sebastian Diaz.

The plaintiffs alleged that Diego Diaz, controlling shareholder of Toronto Fine Cars, fraudulently dissipated assets from the dealership by selling financed vehicles and failing to remit proceeds.

They further alleged that the Guillen Defendants assisted in and knowingly received these fraudulently obtained funds, using a newspaper business (Compra Y Venta, operated by 256 Corp.) as a money laundering vehicle.

The court found the Guillen Defendants' explanations for financial transactions and marital breakdown narrative to be incredible and inconsistent, exhibiting "badges of fraud." The court granted default judgment against Diego Diaz and Toronto Fine Cars and summary judgment against the Guillen Defendants, finding them jointly and severally liable for the unremitted proceeds, NSF charges, contractual interest, and punitive damages, based on the doctrines of knowing assistance and knowing receipt.

The moving parties (respondents in the main application) brought a motion to vary a prior order that required them to indemnify the responding party for the costs of a court-appointed Monitor.

The Monitor's final report vindicated the moving parties from allegations of ongoing defalcation, which had been the primary basis for expanding the Monitor's powers and imposing the indemnity.

The court applied Rule 59.06(2)(a) to vary the order based on these newly discovered facts, finding it unfair for the moving parties to bear the entire cost of the enhanced monitoring.

The court also declined to enforce the underlying arbitral award pending the moving parties' appeal.

The moving parties (the Donato Parties) sought an order enforcing an arbitrator's confidentiality decision and sealing the arbitral award so it would not form part of the public record in the appeal proceedings.

The court applied the Sierra Club test for confidentiality orders and found that the moving parties failed to establish a serious risk to an important commercial interest that required protection.

The court held that the general public interest in encouraging private arbitration does not automatically justify a sealing order when an arbitral award is appealed to the court.

The motion was dismissed.

The applicant appealed an arbitrator's decision granting a confidentiality order and permanent injunction against the applicant and its counsel for publishing a press release linking to an arbitral award.

The court determined the standard of review was reasonableness.

The court found the arbitrator did not err in interpreting the arbitration agreement's confidentiality provisions, in excluding certain extrinsic evidence, in finding a breach of confidentiality, or in granting a permanent injunction.

The appeal was dismissed.

The appellant appealed a judgment from the Superior Court of Justice dated June 17, 2016.

The parties settled the matter prior to the appeal hearing.

The appeal and application for leave to appeal costs were dismissed by consent, with costs awarded to the respondent in the amount of $25,000, all inclusive.

Following the dismissal of the plaintiff's $10.5 million claim and the granting of the defendant's counterclaim on a motion for summary judgment, the successful defendant sought costs on a substantial indemnity basis.

The court rejected the claim for substantial indemnity costs, finding the plaintiff's conduct did not meet the requisite standard of reprehensible conduct.

Applying the factors under Rule 57.01 and the principle of proportionality, the court reduced the defendant's claimed hours and fixed costs at $80,000 inclusive of disbursements and HST.

The parties agreed that the respondent should have its costs fixed at $66,191.27, inclusive of disbursements and relevant taxes.

The Court of Appeal ordered costs in that amount.

The appellants operated businesses leasing mobile signs.

The respondent municipality enacted a new sign bylaw in 2002 and enforced it by confiscating the appellants' signs.

The appellants sued for negligent enforcement, arguing their signs were exempt because the previous bylaw had expired, leaving their signs lawfully in place when the 2002 bylaw took effect.

The trial judge dismissed the action.

On appeal, the Court of Appeal affirmed the dismissal, finding no evidence that the municipality breached the standard of care or acted unreasonably in enforcing the bylaw, as the municipality had a viable argument for the bylaw's enforceability at the time.

The defendant, King Packaged Materials Company, brought a motion for summary judgment to dismiss the plaintiff's (Construction Distribution & Supply Co. Inc.) action for insufficient termination notice of a distribution agreement and to grant its counterclaim for unpaid products.

The court found that the unwritten, non-exclusive distribution agreement, which lasted 18 years, implied a term for reasonable notice of termination based on industry custom.

Considering factors such as the plaintiff's low dependence on the defendant's products (less than 5% of total sales) and lack of substantial investment, the court determined that the three months' notice provided by the defendant was reasonable.

Consequently, the plaintiff's claim for damages was dismissed, and the defendant's counterclaim for $93,890.49 plus interest for unpaid products was granted.

The plaintiff, Gemcorp International Limited, brought a motion to set aside a Registrar's dismissal order for delay, pursuant to Rule 48.14.

The defendant, Sun Life Assurance Company of Canada, opposed the motion.

The court applied the four-part test from Reid v. Dow Corning Corp., contextualized by Scani v. Prochnicki, requiring an explanation for delay, inadvertence in missing deadlines, promptness in bringing the motion, and no prejudice to the defendant.

The court found the plaintiff failed to provide a credible explanation for the litigation delay, failed to establish inadvertence, and failed to rebut the presumption of prejudice to the defendant, particularly concerning faded memories and the need for broader medical evidence.

Consequently, the motion to set aside the dismissal order was dismissed, and costs were awarded to the defendant.

The defendants, Susan and George Needles, brought a motion to vacate a certificate of pending litigation (CPL) obtained ex-parte by the plaintiff, Nisha Adams, regarding a property they owned where Nisha and her family had lived.

The plaintiff agreed to discharge the CPL but requested terms regarding the sale proceeds.

The defendants argued the CPL should be vacated without terms due to alleged material non-disclosure by the plaintiff on the ex-parte motion.

The Master found that the plaintiff did not fail to make full and frank disclosure of material facts and that she had a reasonable claim to an interest in the land based on mortgage payments and renovations.

The Master ordered the CPL discharged on the condition that the net proceeds of any sale be paid into court.