Varoujan C. Arman

The plaintiff, Hoodex Industries Limited, brought a motion for leave to amend its amended statement of claim and for an order to have its action tried together with another related action (CV-18-605074).

The motion was largely on consent, except for the defendants Innova Toronto Inc. and Tahsin Bondokji (the "Innova defendants") who opposed both requests.

The court granted leave to amend the statement of claim, finding that the proposed amendments disclosed reasonable causes of action against the Innova defendants, including misappropriation of confidential information, intentional interference with economic relations, conversion, and conspiracy.

The court also ordered the two actions to be tried together, citing common questions of fact, significant overlap of evidence, and the risk of inconsistent findings if tried separately, in line with the principles of avoiding multiplicity of proceedings and ensuring expeditious and least expensive determination of civil proceedings.

Costs were awarded to Hoodex.

An appeal from a summary judgment decision concerning the interpretation of a commercial loan contained in two letter agreements.

The appellants argued that the summary judgment judge erred in law by failing to give full effect to all terms of the agreements and to read them harmoniously.

The Court of Appeal found the judge's interpretation, particularly as set out in paragraphs 67-72 of his reasons, to be reasonable, informed by the factual matrix, and commercially sound.

The appeal was dismissed with costs awarded to the respondent.

The plaintiff, 3113736 Canada Ltd. (formerly Valle Foam Industries (1995) Inc.), sought summary judgment for unpaid invoices totaling $184,319.34 and dismissal of the defendant's (Cozy Corner Bedding Inc.) counterclaim.

The defendant's counterclaim alleged overpayment due to the plaintiff's admitted price-fixing during an earlier period and sought $410,000.

The court found no genuine issue for trial regarding the plaintiff's claim for unpaid invoices.

The court also found that the defendant's counterclaim was released and deemed discontinued by a national class action settlement, which the defendant had not opted out of, despite claiming lack of actual notice.

The court emphasized that adequate notice, not actual notice, is required for class action settlements to bind class members.

Domfoam International Inc., an applicant in CCAA proceedings, sought leave under Rule 39.02(2) of the Rules of Civil Procedure to examine the president (Terry Pomerantz) and an employee (John Howard) of Domfoam Inc. (the Purchaser) as witnesses in relation to the Purchaser's motion to set aside a distribution order.

The core dispute concerned whether proceeds from an anti-trust class action (Dow Proceeds) were conveyed to the Purchaser in a prior transaction.

The court applied a four-part test for granting leave, finding that the examination of Pomerantz was relevant and responsive to matters raised during cross-examination of the Purchaser's lawyer, and that Domfoam provided a reasonable explanation for the delay.

However, leave to examine Howard was denied as the relevant issues concerning him were known prior to the initial cross-examination, and proportionality weighed against it.

The appellant, an egg producer, appealed a motion judge's decision dismissing its motion to belatedly comply with a 2013 judgment order requiring payment into court.

The appellant had failed to pay the judgment funds into court, failed to bring a motion to add respondents as defendants to a related action, and took no further steps to advance its counterclaim for five years.

When the appellant finally returned to court in 2018, it sought permission to proceed with the counterclaim and amend it.

The motion judge applied the test from Rule 48 (dismissal for delay), placing the onus on the appellant to establish an acceptable explanation for the delay and that respondents would suffer no non-compensable prejudice.

The motion judge found the appellant's explanation inadequate and concluded actual prejudice existed.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's legal test or factual findings.

The appellant appealed a summary judgment decision regarding its failure to remove goods from premises as required by an agreement of purchase and sale.

The Court of Appeal upheld the motion judge's findings that the appellant abandoned the goods by refusing multiple opportunities to remove them, that damages were properly calculated based on lost rent, that the respondent did not fail to mitigate damages, and that the respondent was entitled to forfeit a $100,000 holdback due to the breach.

The court rejected arguments that the Commercial Tenancies Act procedures should apply by analogy and found the respondent acted commercially responsibly in selling the goods at public auction.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action regarding alleged defects in the design of an HVAC system, arguing the claim was statute-barred.

The plaintiff argued the claim was not discovered until he received an expert report, as the defendants had assured him the design was not flawed.

The court found that the plaintiff knew of the damage and believed the defendants were responsible well before the two-year limitation period expired, as evidenced by his emails and refusal to sign a release.

The motion for summary judgment was granted and the action was dismissed.

This supplementary costs endorsement addresses the quantum of costs for earlier supplementary submissions.

The court clarified its previous position, acknowledging the defendants' submissions, though ultimately disagreeing with their objection.

The plaintiff was awarded modest costs of $1,000, less than sought but more than proposed by the defendants, reflecting the effort expended and the plaintiff's successful position on the issue.

The court issued a second supplementary endorsement addressing the defendants' objections to paragraph 11 of a draft order.

The defendants, primarily Robert Symons, objected to the requirement to provide detailed financial statements and transaction records for Gerald Gordon Symons dating back to 2000, citing lack of records, formal authority as executor, and relevance.

The court dismissed these objections, affirming that the order reflected its original endorsement and that Robert Symons was expected to use best efforts to acquire the information.

This supplementary endorsement addresses the defendants' objections to the draft order following a previous motion that vacated a stay, appointed an investigative receiver, and awarded costs to the plaintiff.

The defendants' counsel raised concerns about access to records and the quantum and allocation of costs, framing these as issues with the form of the order.

The court found these objections related to the substance of the prior ruling, not its form, and that the draft order accurately reflected the endorsement.

The court signed the plaintiff's draft order and awarded the plaintiff further costs for the necessity of this supplementary exercise, inviting submissions on quantum.

The plaintiff, a judgment creditor, moved to lift a stay of execution on an Ontario judgment recognizing a USD $44 million U.S. judgment, and to appoint an investigative receiver.

The U.S. court had found the defendants engaged in fraudulent transfers and held a defendant in contempt for non-compliance with disclosure orders.

The court lifted the stay, finding the defendants' history of asset disposal and non-compliance constituted special circumstances warranting an investigative receiver, despite the defendants' argument that ordinary remedies had not been exhausted due to the stay.

The applicant, Helen Wong, brought a motion to amend her statement of claim to add three new defendants, including G4S, after the presumptive limitation period had expired.

Wong had suffered a slip and fall injury and initially sued the condominium corporation and its snow removal contractor.

New information, received after the limitation period, suggested G4S and another entity might also be liable for snow and ice removal.

G4S opposed the motion, arguing Wong failed to exercise due diligence.

The court granted the motion, finding that Wong had conducted reasonable investigations and that the incident report provided by G4S did not indicate their responsibility for exterior snow/ice removal, thus the discoverability principle applied to extend the limitation period.

The plaintiff appealed a Master's decision dismissing her motion to add a security company as a defendant to her slip and fall action after the expiry of the presumptive two-year limitation period.

The Master found that the plaintiff had not exercised sufficient due diligence to ascertain the identity of the security company, despite having been notified of its involvement months before the limitation period expired.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Master's conclusion that the plaintiff failed to rebut the presumption of prejudice by demonstrating reasonable efforts to discover the proposed defendant's identity.

The plaintiffs appealed a Master's order compelling them to answer questions during an examination in aid of execution.

The questions related to the plaintiffs' financial affairs, including the Marhaban Trust and proceeds from a quota sale, and the business affairs of non-parties.

The appeal argued that there was insufficient evidence to link the plaintiffs to the non-parties' property and that the Master's reasons were inadequate.

The court upheld the Master's decision, finding sufficient evidence of a connection between the plaintiffs and the Marhaban Trust and other associated companies, and that the Master's reasons were adequate.

A minor amendment was made to the scope of one question.

The plaintiff leasing company sought to enforce a personal guarantee and collateral mortgage granted by family members of the principals of a restaurant business in support of an equipment lease.

The defendants argued that their consent to the guarantee and mortgage was obtained through undue influence and without independent legal advice.

The court examined the principles governing undue influence in guarantee transactions, including the requirement that lenders be alert to manifestly disadvantageous transactions involving close relationships.

Given the vulnerable position of the sureties, the absence of meaningful independent legal advice, and circumstances placing the lender on notice of potential undue influence, the court found the guarantees and mortgage unenforceable.

The claims against the two sureties were therefore dismissed.

The moving party sought summary judgment recognizing and enforcing a United States District Court judgment from Indiana exceeding US$46 million.

The responding parties argued the judgment was not final because an appeal was pending and alleged a denial of natural justice based on the alleged mental incompetence of one defendant during the foreign trial.

The court held that a foreign judgment is final for enforcement purposes when the foreign court has no power to vary or rescind it, even if an appeal is pending and no stay of enforcement exists.

The court further held that the enforcing court’s role is limited to assessing procedural fairness rather than re‑litigating substantive issues such as competence at trial.

The Indiana judgment was recognized and enforced in Ontario, subject to an interim stay of enforcement pending developments in the foreign appeal.

The plaintiff landlord brought a motion for summary judgment against the defendant tenants for breach of a commercial lease, seeking rent arrears and costs for replacing a kitchen exhaust system.

The defendants argued the amounts claimed were excessive, citing betterment regarding the exhaust system and a failure to mitigate damages when re-leasing the premises.

The court granted summary judgment but reduced the damages awarded, finding the landlord was placed in a better position by the new exhaust system and had delayed in securing a new tenant.

Damages were awarded in the amount of $200,040.37, plus pre-judgment interest and costs.

The plaintiff brought a motion to amend the statement of claim to add a security company as a defendant after the expiry of the two‑year limitation period following a slip and fall in a condominium parking area.

The plaintiff relied on the doctrine of discoverability and argued that correspondence and later pleadings revealed the potential involvement of the security company.

The court held that the plaintiff had sufficient information within the limitation period to identify the security provider and failed to exercise due diligence in investigating its identity.

Evidence showed that the plaintiff interacted with the concierge on the day of the incident and counsel received information about the security company months before the limitation period expired.

The court concluded that the proposed claim was statute‑barred and the amendment could not be permitted.

The appellant appealed the dismissal of his application for relief under ss. 134 and 135 of the Condominium Act, 1998.

The Court of Appeal allowed the appeal, finding that the application judge's reasons were inadequate.

The application judge failed to appreciate the issues, did not set out the correct legal test for oppression, provided no basis for concluding there were no breaches of the Act, and failed to explain the exercise of his discretion.

The matter was remitted for a fresh hearing.

The defendant bank brought a refusals motion seeking to compel answers to questions asked on the cross‑examination of an affiant concerning documents reviewed by counsel when drafting a claim.

The information sought related to whether the plaintiff had used documents produced in another action in alleged breach of the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure.

The court held that the requested information constituted solicitor‑client communications and was therefore subject to near‑absolute privilege.

The “future crime and fraud” exception to solicitor‑client privilege did not apply because an alleged breach of the deemed undertaking rule did not approach the level of criminal or fraudulent conduct required to displace privilege.

The motion to compel answers was dismissed.