Thomas J. McEwen

The defendants brought a motion for summary judgment to dismiss the plaintiff's claim for damages relating to coating equipment allegedly sold during a bankruptcy proceeding.

The plaintiff claimed ownership of the equipment and alleged it was unlawfully sold by the defendants.

The court found a genuine issue for trial regarding possession but determined the ownership issue could be fairly adjudicated on the record.

Due to a lack of supporting documentation, contradictory evidence, and failure to answer undertakings, the court concluded the plaintiff did not own the equipment.

The motion was granted and the claim was dismissed.

The court approved the class action distribution plan, which allocated proceeds proportionally based on prior wind-down payments, and the class counsel's retainer agreement, fees, and disbursements.

The court also approved honourariums for the representative plaintiff and another instrumental class member.

A dispute regarding priority between General Motors' security interest and Class Counsel's first charge was noted for a subsequent decision.

The Bernstein Defendants brought a motion seeking to dismiss the crossclaim of Norma Walton and Ronauld Walton (the "Waltons") for damages due to their failure to pay a $32,000 costs award.

Alternatively, they sought to stay the crossclaim until costs were paid and the Waltons posted $200,000 security for costs.

The court ordered the Waltons to pay the outstanding $32,000 costs plus an additional $12,000 for the current motion within 60 days, failing which their crossclaim for damages would be dismissed.

If these costs were paid, the Waltons were then required to post $200,000 security for costs for their damages crossclaim within another 60 days, failing which it would also be dismissed.

The Waltons' claims for contribution and indemnity were permitted to proceed irrespective of these conditions.

This endorsement addresses three issues following earlier Reasons for Decision: the appointment of KSV Advisory as interim receiver, Deltro's request to reargue its position on repudiation of a Letter of Intent (LOI), and Deltro's request to introduce new affidavit evidence.

The court appointed KSV as receiver, finding no conflict of interest.

Deltro's motion to reargue the repudiation issue was dismissed based on the functus officio principle, as the argument was previously available and no miscarriage of justice was demonstrated.

Similarly, Deltro's motion to introduce new affidavit evidence was dismissed, as the evidence could have been obtained with reasonable diligence and did not meet the high threshold for reopening a case to avoid a miscarriage of justice.

SusGlobal Energy Belleville Ltd. brought a motion to reopen a prior motion seeking leave to sue the receiver (BDO) for damages, and to introduce fresh evidence.

The court dismissed the motion, finding that SusGlobal failed to meet the test for introducing fresh evidence as the evidence was available at the original hearing and would not have changed the outcome.

The court also found no miscarriage of justice in refusing to relax the reasonable diligence rule.

The plaintiff, CG Acquisition Inc., commenced an action against P1 Consulting Inc., Ontario Infrastructure and Lands Corporation (IO), and the Liquor Control Board of Ontario (LCBO) after being disqualified from a Request for Proposal (RFP) process.

The defendants brought motions for summary judgment to dismiss CG's claim, which was framed in tort, alleging breach of a common law duty of fairness and negligent investigation/service provision during the reconsideration of its disqualification.

The court granted summary judgment, finding no freestanding duty of fairness or care owed to a non-compliant bidder, and that the defendants' actions during reconsideration were reasonable and protected by a limitation of liability clause in the RFP.

This decision addresses two post-appeal issues: the costs of administering a class action settlement and the final quantification of damages.

The court ordered the defendant, Cassels Brock & Blackwell LLP, to pay reasonable administration costs.

For damages, following directions from the Court of Appeal, the court adopted the defendant's mathematical approach, awarding $28,745,304.00 to the plaintiff, Trillium Motor World Ltd., rejecting the plaintiff's proposed higher amounts based on proportional mathematical approaches or alleged enhanced bargaining power.

The respondent Picture Perfect Film Assets, LLC (PPFA) brought a motion to stay an application by the MacLaren Art Centre (MAC) concerning the ownership and sale of Rodin bronze sculptures.

PPFA argued for a stay based on forum non conveniens, issue estoppel, res judicata, abuse of process, and the 'good case management rule,' favouring a broader, earlier-filed Washington action.

MAC contended that its Ontario application, rooted in local bankruptcy proceedings and involving Ontario parties and law, was appropriate.

The court dismissed PPFA's motion, finding that Ontario was an appropriate forum and PPFA failed to demonstrate that Washington was 'clearly more appropriate' under the forum non conveniens analysis.

The court also declined to apply equitable doctrines or the good case management rule to stay the Ontario proceedings.

The applicant sought a declaration that the respondent was indebted to it for $2,000,000 USD advanced for a solar project in Barbados, and the appointment of a receiver.

The respondent failed to obtain the required zoning approval within the stipulated 12-month period and repudiated the agreements.

The court found that the respondent was obliged to repay the funds and rejected its claim for equitable set-off based on a separate project in the Dominican Republic.

The court granted judgment for $2,000,000 and ordered the appointment of a receiver, subject to a 30-day grace period for repayment.

The plaintiffs (Ridels) brought a motion for summary judgment against the defendant (Goldberg), relying on findings from a prior action against e3m Investments Inc. and Mr. Cassin.

Goldberg brought a cross-motion for summary judgment, arguing the Ridels' claim was statute-barred by the Limitations Act, 2002.

The court dismissed the Ridels' motion, finding that Justice Pepall's prior findings against e3m did not translate into personal liability for Goldberg, and that Goldberg was not a "privy" to e3m in a way that would bind him.

The court granted Goldberg's motion, finding that the Ridels' action was commenced outside the two-year limitation period, as both the Ridels and e3m (as predecessor) had discovered the claim much earlier than the action's commencement date.

The court rejected the argument that the limitation period was suspended pending the outcome of an appeal in the prior action.

The appellant employer appealed an order dismissing its motion for summary judgment in a wrongful dismissal action.

The employee had been terminated for cause following two off-duty assaults.

The Divisional Court upheld the motions judge's finding that genuine issues for trial existed, including whether the employer had prior knowledge of one assault, whether the employee's developmental disability was known and accommodated, and whether mitigating factors were properly considered.

The appeal was dismissed.

The applicant landlord sought a declaration regarding the interpretation of a rent re-set clause in a 99-year commercial ground lease.

The clause required the property to be valued 'as if it were unimproved'.

The landlord argued this meant the land should be valued as if it were unencumbered and available for freehold condominium development.

The respondent tenant argued the valuation must account for legal restrictions preventing such development.

The court held that the landlord was issue estopped from re-litigating the interpretation decided in a 1990 arbitration.

Alternatively, the court found that the correct interpretation of the lease required the valuation to account for the legal encumbrances restricting the tenant's ability to develop the property.

The defendant estate trustee brought a motion for partial summary judgment to dismiss specific allegations of breach of a settlement agreement, arguing they were statute-barred and estopped.

The plaintiffs, beneficiaries of the estate, alleged breach of fiduciary duty, self-dealing, and fraudulent concealment.

The court dismissed the motion, finding that the issues were deeply intertwined with the broader claims, involved significant credibility disputes, and were not appropriate for partial summary judgment as they could lead to inconsistent findings at trial.

The applicant, acting as estate trustee, challenged the respondent's entitlement to $250,000 that the respondent withdrew from a joint bank account he held with the deceased.

The applicant argued the funds belonged to the estate based on the presumption of resulting trust.

The court found that the bank documents and corroborating evidence demonstrated the deceased's intention to gift the funds to the respondent through the right of survivorship.

The application was dismissed, and the respondent was entitled to retain the funds.

A non-party brought a motion seeking compensation for property management services provided to a property owned by the deceased and the respondents.

The Estate objected on the preliminary grounds that the non-party lacked standing because he had not commenced an originating process, and that the claim was statute-barred under the Limitations Act, 2002 and the Trustee Act.

The court dismissed the preliminary objections, finding that previous court orders had established a procedure for the claim, conferring standing and effectively initiating the proceeding within the limitation periods.

The court also found that the deceased's prior refusal to pay was equivocal, meaning the limitation period had not expired.

The appellant appealed a decision of the Environmental Review Tribunal that confirmed a Renewable Energy Approval for a wind facility project on Amherst Island.

The appellant raised nine issues, including the admission of expert evidence, consideration of mitigation measures outside the approval, factual findings regarding wildlife, and a motion to adduce fresh evidence.

The Divisional Court dismissed the appeal, finding that the Tribunal's evidentiary and procedural decisions were reasonable exercises of its discretion and statutory authority.

The court held it lacked jurisdiction to review the Tribunal's factual findings or admit fresh evidence aimed at challenging those findings, as appeals to the court are strictly limited to questions of law under the Environmental Protection Act.

The defendant brought a motion to set aside a default judgment obtained in 2003 regarding a commercial lease guarantee.

The defendant argued he was never made aware of the Statement of Claim, which was served on his wife via an alternative to personal service in 1990.

The court accepted the defendant's explanation and applied the five discretionary factors from Mountain View Farms, finding it just to relieve the defendant from the consequences of default.

The court also found the original judgment erred in awarding a contractual rate of interest that was not pleaded.

The noting in default and judgment were set aside, allowing the defendant to file a Statement of Defence.

The applicant, an Indigenous person, sought an urgent interim and interlocutory injunction to restrain the broadcast and display of the Cleveland Indians' team name and 'Chief Wahoo' logo during the American League Championship Series in Toronto, pending human rights complaints.

The court found there was a serious issue to be tried regarding whether the name and logo constituted discrimination in the provision of a service.

However, the court dismissed the application because the applicant failed to establish irreparable harm, noting the delay in bringing the application, and found the balance of convenience favoured the respondents due to the material prejudice of last-minute broadcast and uniform changes.

The appellant appealed a Consent and Capacity Board decision finding her incapable of consenting to anti-psychotic medication and a community treatment plan (CTP).

The appeal raised three grounds: the CTP's reference to a prospective referral to CMHA-Peel, the alleged withdrawal of the substitute decision-maker, and the Board's brevity in assessing the appellant's capacity.

The court dismissed the appeal, finding the Board's decision reasonable on all grounds.

The defendant brought a motion to transfer the action from Barrie to Toronto, arguing that all parties, the motor vehicle accident, and the plaintiff's medical treatment were predominantly located in Toronto, with no substantial connection to Barrie other than the plaintiffs' counsel's practice location.

The plaintiffs opposed, asserting that remaining in Barrie would avoid significant delays and be more cost-effective.

The court granted the transfer, finding that Toronto was a significantly better venue based on a holistic application of the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure, emphasizing the convenience of parties and witnesses, the location of events and damages, and the local community's interest.