William McLennan

The appellants, founders of International Capital Management Inc., sold their client portfolio to Optimize Inc. in 2017 through referral and non-competition agreements.

The agreements provided that Optimize would pay fees to ICM, but could demand repayment if more than 15% of the transferred assets were subsequently moved to entities associated with the Sanchez brothers.

When the appellants' associated firm, T.I.P. Wealth Manager Inc., received over 15% of the transferred assets, Optimize terminated the agreements and demanded repayment of all fees paid.

The motion judge granted summary judgment in favor of Optimize, finding no genuine issue for trial regarding the 15% threshold and characterizing the fee repayment clause as an enforceable forfeiture clause rather than an unenforceable penalty.

The appellants appealed, challenging both the summary judgment finding and the characterization of the remedy clause.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's analysis.

This costs endorsement follows the Court of Appeal’s decision allowing the appellants’ appeal in part.

The court found that the trial judge erred in requiring Mak Mera Limited to repay US$405,000 and in awarding $200,000 in defamation damages to James Bay Resources Limited.

The appellants were awarded costs of the appeal and, after submissions on trial costs, the court awarded the appellants $400,000 in trial costs, payable by James Bay, as a fair and proportionate amount in light of the appeal outcome and the parties’ relative success.

The Court of Appeal for Ontario dismissed the appeal of Lori Gallant, who sought a court order to fix the rental rate for a renewed term of a commercial lease with Sherril Johnson and Fitzroy Johnson.

The court held that the lease’s renewal clause was merely an agreement to agree, providing no basis for the court to set a rental rate or imply a method for doing so.

The court also found no breach of good faith by the respondents in the rental negotiations.

The respondents were awarded costs.

This decision concerns two related shareholder applications under section 241 of the Canada Business Corporations Act involving SpassMed Inc. and its affiliates.

The court reviews the procedural history, including consolidation of the applications, amendments to the relief sought, and the appointment of an interim monitor.

Due to significant disputes of fact and credibility, the court orders that the consolidated application be converted to an action to allow for a full trial process.

The Plaintiffs sought leave to amend their claim to add new causes of action and parties, including knowing assistance, knowing receipt, misappropriation, conversion, unjust enrichment, and piercing the corporate veil, and to particularize allegations against a non-party and a discontinued defendant.

The GBRSAS Defendants opposed, arguing new causes of action were statute-barred and prejudice would result.

The court granted leave for most proposed amendments, finding they were alternative relief or different legal conclusions based on existing facts, or arose from the core factual matrix.

However, leave was denied for breach of contract claims against individual defendants, as these were new causes of action based on unpleaded facts and were statute-barred.

Leave was also denied to withdraw admissions regarding misrepresentations made by a settling defendant due to lack of reasonable explanation.

This appeal arose from two actions tried together concerning breaches of a license agreement and fiduciary duties related to powder-coating business ventures.

The trial judge found that Robert Langlois breached a License Agreement and fiduciary duties to the "ACS plaintiffs" (7868073 Canada Ltd. et al.), with Jeffrey Sugar and Gary Sugar knowingly assisting.

Profits were disgorged to the ACS plaintiffs, and a separate action by Gary Sugar was dismissed as moot.

The appellants (Gary Sugar and the "Langlois appellants") challenged the trial judge's findings on the License Agreement's validity and termination, the existence and continuation of fiduciary duties, and the misappropriation of corporate opportunities.

The ACS plaintiffs cross-appealed the costs award.

The Court of Appeal dismissed all appeals and denied leave to cross-appeal costs, affirming the trial judge's conclusions that the License Agreement was valid and not terminated, that fiduciary duties continued, and that corporate opportunities were misappropriated.

James Bay Resources Limited, having been awarded damages for breach of contract and defamation in a prior decision, sought costs of $607,759.

The court awarded costs of $309,401.91 inclusive of HST against Mak Mera Limited only, making no costs award against Adewale Olorunsola due to divided success.

The court significantly reduced the requested costs, citing over-lawyering, lack of detail in the bill of costs, the applicant's conduct unnecessarily increasing litigation costs (e.g., late document production, issues with counsel retention leading to trial adjournment), and the disproportionality of the claimed costs to the damages awarded.

The court applied a 30% reduction to account for these factors and specific deductions for certain claimed expenses.

This appeal concerns a share-purchase transaction under a unanimous shareholders' agreement (USA) that went awry.

The appellants, Leeder Automotive Inc. and 2786818 Ontario Inc., sought to compel the respondent, Douglas Warwick, to sell his shares.

The application judge dismissed their application, finding that Leeder had repudiated the share-purchase agreement by failing to comply with the USA's valuation provisions.

On appeal, the Court of Appeal affirmed the application judge's finding of repudiation, although it corrected her legal error by clarifying that the share-purchase transaction constituted a standalone contract capable of repudiation, rather than merely an implementation of the USA.

The Court found that Leeder's failures to obtain an independent real estate appraisal and to prepare financial statements in accordance with GAAP, including the improper exclusion of a significant settlement, amounted to fundamental breaches, justifying the respondent's acceptance of repudiation.

The appeal was dismissed.

This decision addresses a motion concerning the authenticity of a photocopied letter that the defendants sought to introduce as an exhibit during cross-examination.

The plaintiff objected, arguing insufficient authentication.

The court, after a voir dire, clarified the low evidentiary threshold for admissibility, ruling that the witness's initial statement that the signature "appeared to be his" was sufficient to mark the document as an exhibit.

The ultimate determination of the letter's authenticity and weight was reserved for the trier of fact at the conclusion of the trial, emphasizing that authenticity disputes are best resolved at the case's end.

The plaintiff, James Bay Resources Limited, brought a motion for leave to introduce three previously undisclosed documents at trial, pursuant to Rule 53.08 of the Rules of Civil Procedure.

The defendants opposed the admission.

The court applied the updated discretionary Rule 53.08(1) test, which requires a reasonable explanation for the failure to disclose, no uncompensable prejudice to the opposing party, and no undue delay.

While the explanation of inadvertence was considered weak, the documents were highly relevant, and the defendants had conducted discovery on them without demonstrating actual prejudice or requesting an adjournment.

The court granted leave to admit the documents and awarded the defendants costs on a substantial indemnity basis.

The plaintiff, Bay-Yorkville Developments Ltd. (BYDL), brought a motion to consolidate its action against Ferguson-Neudorf Glass Inc. (FNG) with a pre-existing main action involving Toronto Standard Condominium Corporation No. 2282.

FNG opposed the consolidation and sought to schedule a summary judgment motion on limitations grounds.

The court granted the consolidation, finding that the actions shared common questions of law and fact, arose from the same transactions, and that consolidation would avoid multiplicity of proceedings and promote efficiency.

The court further ruled that FNG's summary judgment motion should be heard only after discoveries were completed, emphasizing the need for a comprehensive record in complex construction litigation.

The appellants, Sandeep Singh and 9660143 Canada Inc., appealed an order dismissing their third-party claim against The Nationwide Groups Ltd. The third-party claim alleged that Nationwide's appraisal undervalued a property, leading to a failed real estate transaction.

The Court of Appeal upheld the motion judge's decision, finding that Nationwide did not owe the appellants a duty of care.

The court reasoned that there was no special relationship of proximity between Nationwide and the appellants, as Nationwide was retained by the buyer's lender, and the appellants did not plead reliance on Nationwide's appraisal.

The appeal was dismissed.

The plaintiff sought a two-year custodial sentence for the defendant, who was previously found liable for multiple acts of civil contempt, including transferring assets to put them beyond the court's jurisdiction and failing to disclose assets.

The defendant, who was already serving a 12-month sentence for prior contempt, requested a conditional sentence.

The court found the defendant's conduct to be a flagrant and repeated defiance of court orders, warranting a strong signal of deterrence and denunciation.

The defendant was sentenced to 16 months in jail without the possibility of parole, with conditions allowing for early release if the contempt is purged.

Following a successful motion to strike the plaintiff's statements of claim, the defendants sought costs of $15,702.14 on a partial indemnity scale.

The plaintiff opposed the costs award, arguing that his impecuniosity and partial success in retaining a battery claim against one defendant justified a reduction or no costs.

The court rejected the plaintiff's arguments, finding that the defendants' success was not diminished by the remaining battery claim and that impecuniosity did not justify a reduction in these circumstances.

The court awarded the defendants costs as requested.

The plaintiff, a union member, commenced an action against three union officials for defamation, battery, and negligence arising from a union election dispute.

The defendants moved to strike the statement of claim.

The plaintiff delivered a fresh as amended statement of claim and later brought a cross-motion for leave to deliver a second fresh as amended statement of claim to add the union as a party and assert a claim for civil conspiracy.

The court struck all claims without leave to amend, except for the battery claim against one defendant, finding that the proposed civil conspiracy claim and the claims against the union were statute-barred under the Limitations Act, 2002.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action for investment fraud on the basis that it was statute-barred.

The plaintiffs had invested funds between 2006 and 2008 but stopped receiving payments shortly after.

Despite making inquiries and receiving no payments or return of principal by May 2013, the plaintiffs did not commence their action until September 2016.

The court found that a reasonable person in the plaintiffs' circumstances ought to have known of the claim by May 2013 at the latest.

The motion was granted and the action was dismissed as statute-barred under the Limitations Act, 2002.

This decision encompasses the Phase II supplementary reasons and the appended Phase I trial reasons regarding a dispute over a Share Purchase Agreement (SPA) for an insurance brokerage.

In Phase I, the court found that the defendants breached the SPA and acted oppressively by constructively dismissing key employees, which negatively impacted the target EBITDA.

The court also ruled that any reduction in the purchase price for failing to meet the target EBITDA was limited to the value of the Preferred Shares.

In Phase II, the court adopted the parties' joint submissions resolving the remaining factual and legal issues regarding specific EBITDA adjustments, directing the parties to proceed to Phase III to calculate the final deferred payment.

The plaintiff sold its shares in a specialized transportation insurance broker to the defendant under a Share Purchase Agreement.

The agreement included a deferred payment for preferred shares, which could be reduced if the company failed to meet an earnings target during a three-year warranty period.

The company failed to meet the target, and the plaintiff brought an action for oppression and breach of contract, alleging the defendant sabotaged the earnings by constructively dismissing key employees and misallocating commissions.

The court found that the defendant constructively dismissed two key salespeople and acted oppressively, breaching the plaintiff's reasonable expectations.

The court ruled that any reduction in the purchase price was limited to the preferred shares and awarded the plaintiff credits for certain misallocated commissions, while reserving other issues for further submissions.