Thomas J. McEwen

The parties contacted the court following the release of the Reasons for Judgment to advise that the consent damages calculation of $2,214,895.00 inadvertently omitted a one-time payment of $562,000.00.

The court issued an addendum amending the damages awarded to the plaintiffs to $2,776,895.00.

The parties appeared on a motion to settle the terms of a judgment following a class action trial.

The court resolved three disputes between the plaintiff and the defendant law firm regarding the wording of the judgment.

The court held that the judgment should include a mechanism allowing for a potential reduction of the $45 million aggregate damages award, as the court had mistakenly assumed all 181 class members had retained the law firm.

The court also clarified that class members only needed to return a participation form or funding to create a retainer, and that this had to be done prior to the waiver of the Acceptance Threshold Condition.

Following a 41-day trial where the plaintiff succeeded against one defendant (Cassels) but failed against another (GMCL), the court determined the costs awards.

The plaintiff was awarded partial indemnity costs against Cassels, apportioned at 40% of fees and 50% of disbursements to reflect the divided success of the action.

GMCL sought substantial indemnity costs against the plaintiff, arguing the plaintiff made unfounded allegations of misconduct.

The court rejected this, finding the allegations were not reprehensible, and awarded GMCL partial indemnity costs, subject to a 10% reduction for duplication between its two law firms.

The plaintiff was also awarded costs for successfully defending GMCL's counterclaim.

The applicant, an 80-year-old man with advanced-stage aggressive lymphoma, brought a preliminary motion for confidentiality orders in his application for physician-assisted death under the Carter framework.

He sought orders allowing him, his family, and his physicians to proceed anonymously, a publication ban on identifying information, and a sealing order for the application record, proposing to file a redacted version for the public.

The media respondents opposed the anonymity of the physicians and requested a 'counsel's eyes only' review of the unredacted record.

The court granted the motion, finding that the applicant's proposal struck the appropriate balance between the open court principle and the need to protect the privacy and dignity of the applicant, as well as the public interest in not deterring physicians from participating in such applications.

The deceased, Albert Latner, commenced two actions against his son Joshua and Joshua's company.

The first action sought payments owed under a written support agreement.

The second action sought the return of a $13 million payment, claiming it was held on a resulting trust.

The estate continued the actions after Albert's death.

The court allowed the first action, finding that an alleged oral waiver of the support payments violated the parol evidence rule and the agreement's entire agreement clause.

The court dismissed the second action, finding that the defendants successfully rebutted the presumption of resulting trust by proving the $13 million was intended as a gift to equalize financial treatment among the children.

The plaintiff was involved in a motor vehicle accident and commenced tort and accident benefits actions.

After multiple changes in counsel and a capacity assessment confirming she was capable, the plaintiff became self-represented.

The case management judge attempted to appoint Amicus Curiae to assist the plaintiff at trial, but the relationship between the plaintiff and proposed counsel broke down.

The plaintiff insisted on representing herself and refused further assistance.

The court reluctantly discontinued efforts to appoint Amicus Curiae and scheduled the trial and outstanding motions.

A self‑represented defendant brought a motion seeking costs of an action after the action was administratively dismissed for delay under Form 48D.

The responding party argued that the issue of costs had already been determined in earlier proceedings before a master and upheld on appeal to the Divisional Court.

The court held that the doctrines of res judicata and issue estoppel barred the renewed request for costs because the entitlement had already been finally determined.

The administrative dismissal order was issued without knowledge of the prior rulings and did not reopen the issue.

The motion was dismissed and costs were awarded to the responding party on a partial indemnity basis.

The defendants brought a motion to strike various paragraphs of the plaintiffs' Statement of Claim in an action for oppression and breach of fiduciary duty.

The defendants argued the paragraphs were irrelevant, pleaded evidence, constituted conclusions, and were prolix.

The court agreed that many paragraphs, including the 'Overview' and 'Detailed Background' sections, contained evidence, argument, and irrelevant information that could prejudice a fair trial.

The court struck the offending paragraphs and headings with leave to amend, while allowing the plaintiffs to maintain allegations related to the breach of fiduciary duty claim.

The applicant franchisor sought to enforce a restrictive covenant against a former franchisee who continued to operate a similar home medical equipment business at the same location after the franchise agreement expired.

The respondents argued the covenant was unenforceable due to a failure to provide a disclosure document under the Arthur Wishart Act and that the covenant was an unreasonable restraint of trade.

The court found that disclosure was not required because the franchisor was not sufficiently involved in the sale of the franchise.

The court also held that the restrictive covenant was unambiguous, reasonable in its 18-month and 30-mile scope, and protected the franchisor's legitimate business interests.

The application was granted and the respondents were ordered to cease operating the competing business.

In this certified franchise class action arising from the 2009 automotive restructuring, the representative plaintiff alleged that the franchisor breached statutory duties of fair dealing, disclosure, and association when it issued wind-down agreements to affected dealers on short notice, and also alleged that class counsel acted in conflict and failed to protect the dealers' interests.

The court held that the franchisor did not breach its obligations under the Arthur Wishart Act or analogous provincial legislation, found the wind-down release enforceable as a settlement of existing and fully known claims, and dismissed the claim against the franchisor as well as the franchisor's counterclaim.

The court further held that the law firm retained for the dealer group had in fact entered into a solicitor-client relationship with the contributing dealers, that its retainer extended to pre-filing restructuring issues, and that it breached fiduciary, contractual, and tort duties by acting despite an undisclosed conflict with Industry Canada, failing to address the steering committee's internal conflict, and maintaining an unreasonable wait-and-see approach.

Applying a loss-of-chance analysis, the court found that the class lost a real and significant opportunity to negotiate collectively for higher wind-down payments and awarded aggregate damages of $45 million against the law firm.

Schonfeld Inc., acting as a court-appointed Monitor and Receiver, sought to dismiss an action commenced against it by the monitored parties for alleged failure to engage in tax planning.

The monitored parties commenced the action without obtaining leave of the court and subsequently brought a motion for leave nunc pro tunc.

The court held that leave was required under the terms of the Monitor and Receiver Orders.

The court refused to grant leave nunc pro tunc, finding that the proposed claim lacked foundation because the Receiver's mandate did not include tax planning, and the pleadings failed to establish gross negligence or wilful misconduct as required to overcome the Receiver's discharge and release.

The action and a related crossclaim were dismissed.

The plaintiff, a resident of Switzerland with no assets in Ontario, sought court approval for a third-party Litigation Funding Agreement (LFA) to pursue a complex commercial action against the defendants.

The defendants opposed the LFA, arguing it could allow the funder to recover more than 50 percent of the proceeds, and brought a cross-motion for security for costs.

The court found that while third-party funding is not per se objectionable in commercial litigation, the specific terms of this LFA were unfair to the plaintiff and constituted champerty and maintenance.

The motion to approve the LFA was dismissed without prejudice, and the cross-motion for security for costs was deferred.

The applicant sought leave to appeal a $4,000 costs order made in a family law proceeding.

The motion was brought before a three-judge panel of the Divisional Court.

The panel dismissed the motion, holding that motions for leave to appeal to the Divisional Court must be brought before a single judge, not a panel of three judges.

This rule applies regardless of whether the appeal is from an interlocutory order, a costs order, or an administrative tribunal.

This was a costs endorsement following a four-week trial on three discrete issues in a commercial dispute involving oil field valuation and investor interests.

The successful respondents sought full indemnity costs based on alleged misconduct and offers to settle.

The court rejected full and substantial indemnity costs, holding the conduct allegations did not justify elevated costs and that the respondents' offer was not a technically valid Rule 49 offer because it extended beyond the issues tried.

Exercising discretion, the court nonetheless awarded reduced partial indemnity fees and limited disbursements, including a reduced allowance for certain expert fees.

The applicants, a group of mortgage investors, applied to appoint a receiver over the property of the respondent, a not-for-profit corporation operating a church and school, due to an outstanding loan balance of approximately $11.5 million.

The respondent had previously commenced an action against the applicants alleging conspiracy and seeking restitution.

The court dismissed the application, finding it was not just and convenient to appoint a receiver because the respondent raised triable issues, the property value greatly exceeded the debt, and a receivership would effectively end the ongoing litigation and negatively impact the church and school.

The moving defendants sought to vary a case management order requiring related actions to proceed together, to set aside a longstanding Mareva injunction, or alternatively to vary the injunction to permit asset sales and access to funds.

The court refused to sever the consolidated trial process and declined to vacate the Mareva order, finding the delay was not solely attributable to the plaintiff, the factual basis for the injunction had not materially changed, and the moving defendants had provided contradictory and incomplete financial disclosure.

Applying the established injunction and Mareva variation frameworks, the court held the moving defendants had not discharged their heavy burden for broad relief.

Limited variation was granted to allow supervised sale of properties and potential funding of a tax appeal, with any further living or legal expense relief made conditional on compliance and meaningful disclosure.

In supplementary reasons, the court addressed a post-judgment issue concerning currency conversion of previously awarded amounts.

The parties agreed that the amounts identified in two paragraphs of the original reasons should be calculated in US dollars and converted to Canadian dollars using an agreed Bank of Canada exchange rate of 1.166.

The court accepted the parties' consent calculations and amended the judgment accordingly.

The court declined to address other issues raised because they were outside the matters to be decided or constituted further argument on issues already determined.

This costs endorsement followed prior motion rulings concerning advancement and indemnification related to U.S. criminal proceedings.

The court held the successful party was entitled to full indemnity costs because the motion costs fell within the defined term “Legal Fees” under an earlier order governing advancement rights.

The court rejected objections based on alleged duplication of counsel and excessive staffing, particularly where the responding party provided no evidence of its own costs.

The only reduction concerned the investigator’s account, which was cut by 50 percent for attendance at discoveries.

Full indemnity costs were then fixed in the amount stated in the endorsement, plus a separate U.S. dollar amount.

The defendant moved under Rules 21.01(1)(a) and 51.06 for a declaration that the plaintiffs had irrevocably elected to affirm a settlement agreement and therefore could not pursue rescission in the alternative.

In a complex commercial dispute arising from the termination of margin facilities and liquidation of hedge fund assets during the 2009 financial crisis, the court held that the factual matrix, discovery record, and alleged misrepresentations were too complicated to resolve on a paper record on the eve of trial.

The court was not satisfied that the pleadings or discovery admissions established the necessary elements of election, nor that a forced election between inconsistent remedies should be imposed at that stage.

The motion was dismissed, leave to amend was granted, and costs of $100,000 inclusive were awarded to the plaintiffs.

The moving party sought leave to represent three closely held corporate defendants in a banking and receivership action arising from defaulted film production financing and related tax credits.

The court applied the test for lay representation of a corporation, focusing on authorization, connection to the corporations, ability to comprehend the litigation, access to justice, and whether the proposed representative would act responsibly.

Although the court expressed concern about the moving party's lack of objectivity, allegations against counsel and judges, and his apparent wish to relitigate prior matters, it found his conduct had not yet reached the level that would disqualify him.

Leave was therefore granted on a conditional, without prejudice basis because the corporations lacked funds to retain counsel and would otherwise be left without representation.