Todd J. Burke

Following the dismissal of the applicant's application to amend the articles of incorporation of the National Police Federation, the respondent sought costs on a substantial indemnity basis.

The applicant sought his own costs or that each party bear their own costs, arguing the matter raised novel points of law and access to justice issues.

The court awarded the respondent costs on a partial indemnity basis in the amount of $20,000, finding that the applicant did not act in bad faith and that there was a dearth of jurisprudence on the interpretation of the relevant Act.

The applicant, a member of the respondent not-for-profit corporation, submitted a proposal to amend the corporation's articles to make the decisions of the Nominations and Elections Committee final and binding on the board of directors.

The respondent refused to include the proposal in the notice of its annual general meeting.

The applicant brought an application to compel its inclusion.

The Superior Court of Justice dismissed the application, finding that the proposal was illegal because it sought to restrict the core management powers of the directors.

Under the Canada Not-for-Profit Corporations Act, such a restriction can only be achieved through a unanimous member agreement, not a special resolution to amend the articles.

The applicant, an RCMP officer on leave, sought an oppression remedy under the Canada Not-For-Profit Corporations Act after the respondent's Board of Directors overruled its Nominations and Election Committee and declared him ineligible to stand for election as a director.

The applicant argued the Board acted in bad faith and contrary to past practice.

The court dismissed the application, finding that the applicant did not meet the by-law requirement of being from National Headquarters, as he had not yet been transferred there.

The court held that the Board acted reasonably and within its duty to enforce the by-laws, and the applicant had no reasonable expectation that a candidacy violating the by-laws would be approved.

The applicant sought entitlement to life insurance proceeds to reimburse expenses for her father's care prior to his death.

The respondent sought removal of the applicant from her positions as estate trustee and trustee of a trust holding corporate shares, and challenged the validity of the deceased's will and trust provisions.

The court found the applicant entitled to the insurance proceeds based on a binding agreement, upheld the validity of the will and trust, declined to remove the applicant as director or estate trustee, but removed her as trustee of the shares due to conflict of interest.

The applicant husband sought to bifurcate family law proceedings, separating professional liability claims (breach of fiduciary duty and intentional infliction of mental distress arising from a prior psychotherapist-patient relationship) from matrimonial claims (divorce, support, and equalization).

The respondent wife opposed bifurcation, arguing the claims were inextricably linked as part of a continuous pattern of coercive control.

The court dismissed the motion, finding that hearing the matters together was more just, efficient, expeditious, and proportionate, particularly given the respondent's intention to testify about the entire relationship in the family law proceeding and the absence of any benefit from a stepwise approach.

The court considered motions for costs personally against George Windsor, who commenced proceedings on behalf of Gilles Jozias Overtveld and Gi-Las Management and Maintenance Ltd. without proper authority.

The action was found to be duplicative, meritless, and a waste of resources.

The court fixed costs on a substantial indemnity basis against Mr. Windsor personally, disallowed him from charging legal fees to the plaintiffs, and set out the principles for awarding costs in such circumstances.

The plaintiffs, Mitel Networks Corporation and Mitel Networks, Inc., sought a declaration that the defendant, Division Integral de Telefonia S.A. de C.V. (“Divitel”), breached a distribution agreement and requested judgment for outstanding payments, as well as the preservation and return of all products.

The court details the extensive efforts required to serve Divitel in Mexico under the Hague Service Convention, including multiple Letters Rogatory and publication in Mexican newspapers.

Divitel was noted in default, and the court granted default judgment in favour of Mitel for $1,607,707.32 CAD ($1,174,966.98 USD), as well as costs and disbursements.

The court found the costs reasonable given the complexity and international service requirements.

This appeal concerned a dispute over indemnification and escrow provisions in an asset purchase agreement, specifically whether an amendment to a Notice of Application was statute-barred.

The Court of Appeal dismissed the appeal, affirming the application judge's decision that the amendment was not statute-barred, despite an error in the application of s. 16(1)(a) of the Limitations Act, as it did not introduce a new cause of action or remedy.

The court also upheld the interpretation of the Escrow Agreement regarding notice delivery, finding that registered mail was not a valid method of delivery.

NorthStar Earth & Space Inc. sought an urgent interlocutory injunction against Spire Global Subsidiary, Inc. to prevent the deorbiting or decommissioning of three failed satellites and the termination of image downloading services.

NorthStar argued these interim measures were necessary pending an arbitration concerning Spire's alleged breaches of a Constellation Services Framework Agreement.

The court granted the injunction, finding a reasonable possibility that NorthStar would succeed on the merits, particularly regarding Spire's anticipatory breach of its obligation to replace satellites and its obligation to continue operating the failed satellites.

The court also found NorthStar would suffer irreparable harm due to a limitation of liability clause and the irreversible nature of deorbiting, and that the balance of convenience favored granting the injunction.

NorthStar was ordered to pay a monthly fee for the continued operation of the satellites, and Spire was ordered to pay NorthStar partial indemnity costs.

The plaintiffs, representing Ottawa taxi plate holders and brokers, brought a class action against the City of Ottawa for its response to Uber's entry into the local market in 2014.

The court found that the City owed a duty of care to the taxi industry based on a long-standing, collaborative relationship and was negligent in failing to enforce its 2012 taxi by-law against Uber.

However, the court dismissed the plaintiffs' claims that the City's actions violated section 15 of the Charter or the Human Rights Code, finding no disproportionate discriminatory impact based on race or immigrant status.

The court also dismissed the claim that the City's taxi licensing fees constituted an unlawful tax, finding a reasonable nexus between the fees and the cost of services provided.

The applicants, SpaceBridge, sought declarations that an indemnity claim made by the respondents, Baylin, under an asset purchase agreement (APA) and related escrow agreement was invalidly delivered, and for the return of $1,826,512 paid out of an escrow fund.

The core dispute revolved around the interpretation of contractual notice provisions, specifically whether delivery by registered mail was a permitted method under the Escrow Agreement, which had different notice modalities than the APA.

The court found that registered mail was not a valid mode of delivery under the Escrow Agreement, meaning Baylin's claim certificate was not properly delivered, and thus SpaceBridge's 30-day objection period never commenced.

Consequently, the payment from the escrow fund was improper, and Baylin was ordered to return the funds.

The court also dismissed Baylin's arguments regarding limitation periods and estoppel, but clarified that the ruling did not invalidate Baylin's underlying indemnity claim under the APA, which could still be pursued through litigation.

The applicant commercial tenant sought a declaration that it had been overcharged for base rent and requested a retroactive rent rebate of at least $450,000.

The tenant argued that the rent charged exceeded market rates and relied on certain lease provisions referencing rentable area and market rents.

The court dismissed the application, finding that the parties had freely negotiated and agreed to the rent increases as the tenant expanded its footprint.

The court held that the lease did not contain a general right to a retroactive rent adjustment based on market rates.

The College of Psychologists of Ontario brought professional misconduct allegations against a member, including sexual abuse, abuse, and sexual harassment of a patient.

The member pled no contest and an Agreed Statement of Uncontested Facts was filed.

The Discipline Committee found that the member engaged in professional misconduct by kissing, inappropriately touching, and consuming alcohol with a patient, as well as engaging in overly personal communications.

The Committee accepted a joint submission on penalty, ordering a reprimand, an indefinite suspension until the member provides an undertaking to resign and never reapply, and costs.

The defendant, Dr. Philip Ricciardi, brought a motion to prohibit Brian Ludmer from acting as counsel for the plaintiffs, Jefferson Wiggins et al., in a professional negligence action.

The defendant argued that Mr. Ludmer, having extensively interacted with Dr. Ricciardi as the plaintiff's previous family law counsel, would inevitably be a witness or rely on personal knowledge, creating a conflict of interest under the witness-advocate rule.

The defendant also raised a potential conflict regarding the limitation period defence.

The court granted the motion to prohibit Mr. Ludmer from acting due to the witness-advocate conflict, finding that his questioning would imply an 'unsworn offer of the lawyer’s version of the facts.' However, the court dismissed the limitation period conflict argument, as the plaintiff waived any claim against Mr. Ludmer.

This endorsement addresses three motions: the applicant's motion to strike portions of the respondent's affidavit, the respondent's cross-motion to strike portions of the applicant's affidavit and exhibits, and the applicant's motion to compel answers refused during cross-examination.

The applicant, a former director of the Canadian Internet Registration Authority (CIRA), challenged his disqualification as a board candidate and sought corporate documents related to CIRA's financial affairs, including employee severance packages.

The court dismissed both parties' motions to strike, affirming that preliminary motions to strike on evidentiary grounds are generally inappropriate and admissibility should be left to the application judge.

The applicant's motion to compel answers was allowed in part, compelling answers related to the bona fides of his document request and board briefings on financial settlements, but upholding refusals on questions concerning the merits of whistleblower allegations or legal opinions.

Success was deemed evenly divided, with no order as to costs.

The moving parties, the Canadian Federation of Students (CFS), brought a motion for an interim injunction to prohibit the responding party, the Carleton University Students' Association (CUSA), from proceeding with a referendum regarding disassociation from CFS.

CFS argued the referendum violated its bylaws, which dictate a specific process and timeline for such votes.

CUSA contended the referendum was merely consultative and non-binding.

Applying the RJR-MacDonald test, the court found a genuine issue to be adjudicated and that proceeding with the referendum would cause irreparable harm by subverting the regular process to which all members are bound.

The court granted the mandatory order prohibiting the referendum.

The applicant tenant brought an urgent application to prevent the respondent landlords from terminating a commercial lease or exercising distraint after the tenant unilaterally withheld rent.

The tenant claimed the rent was calculated incorrectly by including the parking lot.

The parties agreed on consent that the tenant would pay all arrears and ongoing rent to keep the lease in good standing pending a hearing on the merits of the rent abatement.

The court fixed costs of the urgent motion at $18,000 payable by the tenant.

The appellant, Annabelle Maritza Edgeworth, appealed an order which dismissed most of the claims in her action.

Her action alleged that the respondents (lawyers, an insurer, and a medical assessor) conspired to suppress a defence medical report in a prior personal injury case, leading to claims for unlawful means conspiracy, intrusion on seclusion, conspiracy to injure, and misrepresentation.

The Court of Appeal upheld the motion judge's decision, finding that a failure to comply with a procedural rule (r. 33.06) was not a "wrongful act" for unlawful means conspiracy, and the intrusion on seclusion claim failed as the medical examination was consented to.

The court also affirmed the removal of the appellant's counsel due to a conflict of interest.

The appeal was dismissed with costs.

The College of Psychologists of Ontario brought professional misconduct allegations against the member for failing to adequately supervise a psychotherapist who provided services to an adolescent, an area outside the member's authorized practice.

The member admitted to the allegations, including inadequate supervision records and billing irregularities.

The Discipline Committee accepted a joint submission on penalty, ordering a 12-month supervised coaching program and $3,500 in costs.

The plaintiff, an Ontario-based charity, brought an action for a declaration that it owed no money to the defendant, a US-based charity operating in Colombia, under a funding agreement.

The agreement contained a forum selection clause designating Ontario.

The defendant moved to stay the Ontario action, arguing that the dispute should be heard in Colombia where it had initiated proceedings to annul the forum clause.

The court dismissed the motion, finding that the defendant failed to demonstrate 'strong cause' to override the parties' contractual choice of forum, as the dispute primarily involved contractual interpretation and accounting rather than broad factual inquiries in Colombia.