Todd J. Burke

The parties, brothers and joint owners of a real estate development company, terminated their business relationship via a share purchase agreement.

The plaintiff was to receive 50% of the after-tax profits of a specific subdivision (Forest Creek) as part of the purchase price for his shares.

A dispute arose over the calculation of these profits and other related payments.

The court found that the defendant was not under a fiduciary obligation to the plaintiff and that the contract was not unfair.

The court interpreted the contract to mean the plaintiff was only entitled to profits from the Forest Creek subdivision and not other projects.

The court made specific findings on the calculation of profits, shareholder loan adjustments, and other payments, ultimately finding the defendant owed the plaintiff a significant sum.

The plaintiffs sought leave to appeal an interlocutory costs order that reserved the costs of their successful injunction motion to the trial judge.

The plaintiffs argued there were conflicting decisions and good reason to doubt the correctness of the order.

The Divisional Court dismissed the motion for leave, finding that the motion judge properly exercised his discretion in ordering costs in the cause, consistent with the normal practice for interlocutory injunctions, and that differing outcomes in other cases reflected discretionary fact-specific determinations rather than conflicting legal principles.

The plaintiffs sought substantial indemnity costs following their successful motion for an interlocutory injunction.

The defendant, Mr. Cabezas, argued that costs should be reserved for the trial judge or significantly reduced.

The court, exercising its discretion under the Courts of Justice Act and Rules of Civil Procedure, ordered costs in the cause.

The decision emphasized that it is generally preferable to reserve costs for interlocutory injunctions to the trial judge, given the absence of a final determination of rights and the plaintiff's undertaking as to damages.

Conflicting positions on factual complexity and proportionality also made it difficult to fix costs at this stage.

The applicant filed a Request for Order During Proceedings to re-activate her human rights application, which had been deferred pending the conclusion of proceedings before the Financial Services Commission of Ontario (FSCO) and professional colleges.

The applicant provided evidence that the FSCO application was withdrawn following a settlement with the respondent insurer, and the college proceedings were completed.

The Tribunal granted the request to re-activate the application and directed that a preliminary/summary hearing be scheduled to determine whether the application should be dismissed under section 45.1 of the Human Rights Code or for having no reasonable prospect of success.

The applicant sought to enforce a foreign Letter of Request for Judicial Assistance by requesting oral examination of a respondent's representative.

The request for oral examination was dismissed, though the respondent had previously agreed to produce documents.

The respondent sought full indemnity costs, arguing that as a stranger to the foreign litigation, it should not bear costs for successfully opposing the request.

The applicant argued for divided success and lower costs.

The court found the respondent wholly successful in opposing the oral examination and awarded full indemnity costs of $13,926.31.

This application concerned the enforcement of a Letter of Request for Judicial Assistance from a Florida court, seeking an oral examination of a representative from the National Gallery of Canada (NGC) regarding the ownership of Monet paintings by Frederic Bouin, who was involved in matrimonial litigation with the applicant.

The NGC had previously produced documents but opposed the oral examination.

The court applied a six-factor test for enforcing letters rogatory, finding that the applicant failed to demonstrate that the sought-after examination evidence was relevant, necessary, or not otherwise obtainable, as Mr. Bouin himself was available for examination in the US proceedings.

Consequently, the court declined to order the oral examination.

The appellants' son, a British soldier, was killed in a helicopter crash in Afghanistan.

The appellants brought a negligence action in the Ontario Superior Court against the federal Crown and others.

The motion judge struck the claim against the federal Crown for lack of jurisdiction under s. 21(1) of the Crown Liability and Proceedings Act, finding the claim arose in Afghanistan.

On appeal, the appellants argued the 'real and substantial connection' test should apply.

The Court of Appeal dismissed the appeal, holding that the specific statutory language of s. 21(1) governs and the substance of the claim arose in Afghanistan.

The University of Toronto Graduate Students’ Union (UTGSU) challenged a referendum on its continued membership in the Canadian Federation of Students (CFS) and CFS-Ontario (CFS-O), arguing that the Chief Returning Officer (CRO) made unreasonable decisions regarding polling stations and mail-out ballots, which led to a failure to meet quorum.

The CFS sought a declaration that UTGSU remained a member.

The court found that the relationship between the organizations and their members was contractual, governed by bylaws.

The court declined to imply a term into the bylaws to alter quorum calculation for disenfranchised voters.

It also found that the CRO's decisions were within his discretion and not made in bad faith, applying a subjective standard to his judgment.

Consequently, the court granted the CFS's application, declaring UTGSU's continued membership, and dismissed UTGSU's counter-application.

The Plaintiffs, Accreditation Canada International and Accreditation Canada, brought a motion to extend and vary an interlocutory injunction against former employees, José Luis Cabezas Guerra and Bieu (Marty) Van Huynh, and their company, Efficiency on Health Services Canada Inc. The Plaintiffs alleged breach of contract, fiduciary duty, and confidence due to the Defendants' use of confidential information and solicitation of clients under misleading trade names.

The court applied the R.J.R. Macdonald test for injunctions, finding a strong prima facie case, irreparable harm, and that the balance of convenience favored the Plaintiffs.

The motion for an interlocutory injunction was granted.

The University of Guelph moved to compel affiants of the University of Guelph Central Student Association (CSA), Canadian Federation of Students (CFS), and Canadian Federation of Students-Ontario (CFS-O) to re-attend cross-examination, answer objected questions, and produce documents.

The motion addressed seven outstanding refusals concerning the personal beliefs of a former executive, recommendations from a law firm (solicitor-client privilege), redactions to a memorandum and reports (solicitor-client and common-interest privilege), a tolling agreement (relevance), and redactions to settlement emails (common-interest privilege).

The court dismissed requests regarding personal beliefs and legal advice, upheld most redactions based on privilege, but ordered disclosure of the final executed tolling agreement and removal of certain redactions from settlement emails related to timing.

The defendants, a treating psychologist and a children's aid society, brought motions under Rule 21 to strike the plaintiffs' statement of claim.

The plaintiffs' action arose from a child protection investigation and criminal charges based on allegations of abuse made by a child previously adopted by the plaintiffs.

The court struck the claim against the psychologist without leave to amend, finding she owed no duty of care to the parents of her patient and was statutorily obligated to report suspected abuse.

The court also struck the adult plaintiffs' claims in negligence and various intentional torts against the children's aid society defendants, finding no duty of care was owed to the parents during a child protection investigation.

Leave to amend was granted for claims of misfeasance in public office and Charter damages.

A national student federation sought declarations that a student union remained a member and owed unpaid membership fees after the union held a referendum purporting to withdraw from the federation.

The court held the referendum invalid because it did not comply with the federation’s bylaws governing defederation, including requirements that a petition from individual student members initiate the process and that proper notice be provided.

The court found the referendum had been initiated and orchestrated by the student union’s executive rather than by individual members, contrary to the bylaws, and that other procedural requirements were not followed.

Because the referendum was invalid, the student union remained a member of the federation and was contractually obligated to remit membership fees.

Damages were awarded for unpaid fees accrued since the purported withdrawal.

The applicant filed a human rights application alleging discrimination in the delivery of a service based on disability, family status, and marital status.

The respondents requested that the application be deferred pending the completion of concurrent proceedings before the Financial Services Commission of Ontario (FSCO) and professional colleges.

The Tribunal found significant overlap between the facts and issues in the application and the FSCO arbitration, raising a real risk of inconsistent findings.

The application was deferred pending the conclusion of the FSCO proceeding.

Apotex's generic version of a patented drug was kept out of the market for two years by Eli Lilly using the Patented Medicines (Notice of Compliance) Regulations.

After the patent was invalidated, Apotex sued for unjust enrichment, seeking disgorgement of Eli Lilly's monopolistic profits.

The Court of Appeal upheld the Divisional Court's decision to strike the claim, finding that Apotex suffered no corresponding deprivation of the monopolistic profits because it would never have earned them.

The appellant, Day & Ross Inc., appealed a Small Claims Court judgment ordering it to pay $18,100 to the respondent, a factoring company that purchased invoices from a motor carrier.

Day & Ross had withheld payment, claiming equitable set-off for a spoiled load of cauliflower that it had paid the shipper for.

The Divisional Court dismissed the appeal, upholding the trial judge's findings that Day & Ross acted as a load broker with no legal obligation to pay the shipper, that there was no implied assignment of the shipper's claim, and that equitable set-off did not apply.

Following a successful jurisdiction and crown immunity motion, the defendants sought costs on a substantial indemnity basis.

The court considered allegations of abusive conduct by the self‑represented plaintiffs, including abusive phone messages, disorganized pleadings, and scandalous allegations against parties, counsel, and courts.

The defendants argued that the complexity of crown immunity issues and the plaintiffs’ conduct significantly increased litigation costs.

The court concluded that the plaintiffs’ conduct justified substantial indemnity costs.

Costs of $23,896.92 were awarded to the defendants.

Following a prior decision finding the plaintiff in contempt of court for breaching an order restricting communications with the defendants, the defendants sought costs on a substantial indemnity basis.

The court noted that the plaintiff left numerous lengthy abusive voicemail messages in breach of a court order and had also attempted to bring an unmeritorious cross‑motion for contempt.

The court found that the plaintiff’s conduct unnecessarily lengthened the proceeding and significantly increased the defendants’ legal costs.

Applying principles governing substantial indemnity costs in cases involving vexatious or abusive litigation conduct, the court concluded that such elevated costs were warranted.

Costs of $14,981.47 were awarded to the defendants on a substantial indemnity basis.

The defendants brought a motion seeking a finding that one of the plaintiffs was in contempt of court for breaching an earlier court order requiring all communications with defence counsel to be in writing and prohibiting telephone or voicemail messages.

Despite the order, the plaintiff left numerous abusive voicemail messages for defence counsel over several days.

The court applied the established three‑part test for civil contempt and found the order was clear, the breach was deliberate and wilful, and the evidence proved contempt beyond a reasonable doubt.

While the contemnor admitted the conduct and apologized, the repeated nature of the breaches and the defiant tone of the messages aggravated the misconduct.

The court imposed a monetary sanction rather than imprisonment but warned that future breaches could attract more severe penalties.

Following dismissal of a motion for leave to issue a Certificate of Pending Litigation over commercial property, the court determined the appropriate costs award.

The responding party sought partial indemnity costs of approximately $28,900 after incurring roughly $40,000 responding to the motion.

The court held that interlocutory motion costs should compensate for work specifically related to the motion rather than all investigative or merits-based preparation that may also serve the underlying action.

Applying the factors in Rules 57.01 and 57.03 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, the court fixed costs at $20,000 on a partial indemnity scale.

The award was payable within 30 days.

The appellants appealed a decision dismissing their motion to strike a portion of the respondent's amended claim seeking disgorgement of profits based on unjust enrichment.

The respondent, a generic drug manufacturer, argued it had an independent cause of action outside the Patented Medicines (Notice of Compliance) Regulations due to the invalidity of the appellants' patent and alleged false representations.

The Divisional Court allowed the appeal, holding that the Patent Regulations constitute a complete code and leave no room for stand-alone equitable remedies like unjust enrichment in these circumstances.

The claim was struck for disclosing no reasonable cause of action.