William Michael Grant Osborne

The moving parties (appellants) sought a stay of several endorsements pending their appeal of an order directing a buyout of their shares in a condominium development project.

The underlying dispute involved mutual allegations of oppression between two 50% shareholders.

The court applied the RJR-MacDonald test for a stay pending appeal.

It found no serious issue to be tried, noting the broad discretion of the motion judge under the OBCA.

While acknowledging that loss of mortgage security could constitute irreparable harm, the court concluded that the balance of convenience strongly favoured the respondents, who risked losing $25 million in financing and the entire buyout transaction if the stay were granted.

The motion for a stay was dismissed.

The moving parties brought a motion to quash the appellants' appeal of an interlocutory injunction order.

The underlying dispute involved competing oppression applications between 50/50 shareholders of a condominium project.

The Divisional Court found that the injunction order was interlocutory, not final, as it merely preserved the status quo pending the merits hearing.

The court reaffirmed that section 255 of the Business Corporations Act does not provide an appeal as of right for interlocutory orders.

Furthermore, because the standstill period had expired, the proposed appeal was moot.

The motion to quash was granted.

This is a costs decision following the applicant's successful recovery of a loan in the principal amount of approximately $14 million plus accrued interest.

The applicant sought full indemnity costs of $125,890 based on a provision in the loan agreement, while the respondents argued for partial indemnity costs of $50,000.

The court found that the loan agreement provision was sufficiently clear to encompass enforcement costs and awarded substantial indemnity costs of $108,000 inclusive of fees, HST and disbursements.

The court granted judgment in favour of V2 Investment Holdings Inc. for a $12.9 million loan made to Sam Mizrahi and related corporate respondents, finding the debt liquidated and undisputed.

The respondents' arguments of bad faith and equitable set-off, based on alleged promises regarding mortgage registration and intercreditor agreements, were rejected as unsupported by the evidence.

The court found no binding agreement to amend the loan or enter a standstill, and no breach of the duty of honest performance.

Judgment was granted for the outstanding amount plus interest, with directions for further submissions on costs and interest calculations.

The moving parties brought a motion to extend the time to bring a motion for leave to appeal from a decision of Chalmers J. dated June 28, 2021, and for leave to appeal.

The Divisional Court granted the extension of time but dismissed the motion for leave to appeal, awarding costs of $5,000 to the responding party.

Two sets of appellants (manufacturers of optical disc drives) appealed the certification of a price-fixing class proceeding in British Columbia.

The majority held that the discoverability rule applies to extend the two-year limitation period in s. 36(4)(a)(i) of the Competition Act, that fraudulent concealment can toll a limitation period without requiring a special relationship between the parties, that umbrella purchasers (persons who bought from non-defendant manufacturers) have a cause of action under s. 36(1)(a), that s. 36(1) does not bar concurrent common law and equitable claims, and that a plaintiff's expert methodology need only establish that overcharges reached the indirect-purchaser level to certify loss as a common issue.

Côté J. dissented in part, finding that the discoverability rule does not apply to s. 36(4)(a)(i) and that umbrella purchasers have no cause of action under s. 36(1).

Both appeals were dismissed.

Magdy Hamdy sought to assess the accounts of his former counsel, Leon Wickham.

The Assessment Officer referred issues of parties and scope to the court.

The court ordered the assessment of all accounts rendered by Mr. Wickham, including those for family law, partition and sale, and criminal charges, rejecting Mr. Wickham's arguments for limited scope.

The court also ruled that Peter Rickards and his law firm, who supervised Mr. Wickham, were not parties to the assessment.

Mr. Wickham was ordered to provide a Solicitor's Brief and an accounting of funds.

Costs were awarded to Mr. Hamdy on a partial indemnity basis, with full indemnity for written materials, and costs were also awarded to Mr. Rickards against Mr. Wickham.

The plaintiffs, MD Physician Services Inc. and MD Management Limited, sued former employees Duane Wisniewski and Joy Sleeth, and their new employer RBC Dominion Securities Inc., for breach of non-solicitation agreements and confidentiality obligations.

The court found the non-solicitation agreements enforceable, rejecting arguments of lack of consideration, non est factum, ambiguity, vagueness, and unreasonableness.

The court also found that Wisniewski and Sleeth breached these agreements by actively soliciting former clients, despite their claims of merely informing them of their new employment.

RBC Dominion Securities Inc. was found vicariously liable for these breaches.

While a technical breach of confidentiality occurred, it was deemed de minimis and not to attract damages.

The trial was limited to liability, with damages to be addressed later.

Octagon Capital Corporation, an investment dealer, brought an application against Niko Resources Inc., an oil and natural gas company, seeking a declaration that it was entitled to a $211,500 fee.

Octagon claimed that Niko's December 2013 debt restructuring, which involved JGB Management Inc., constituted "further financing" under their May 2013 Engagement Agreement's "Tail Provision." The court dismissed the application, finding that "further financing" meant the supply of additional funds, and the debt conversion by JGB did not involve new money but rather a restructuring of existing debt.

The plaintiff brought a motion for leave to amend his statement of claim under Rule 26.01 of the Rules of Civil Procedure to add a claim for malicious prosecution after related criminal charges had been withdrawn.

The defendants opposed the amendment, arguing the limitation period had expired and the proposed amendment constituted a new cause of action.

The court held that the amendment did not introduce a new cause of action because the material facts supporting malicious prosecution had already been pleaded, except for the favourable termination of the criminal proceedings.

The amendment merely added the subsequently occurring fact of withdrawal of the charges and an alternative legal claim arising from the same factual matrix.

Leave to amend was granted and the plaintiff was awarded nominal costs.

Following dismissal of a motion for an injunction seeking to enforce a non‑competition agreement, the court addressed the issue of costs.

The moving party had sought to enjoin former advisors and a financial services firm from operating a competing branch, but failed to establish an enforceable restrictive covenant or a serious issue to be tried.

The successful defendants sought partial indemnity costs.

The court held that one group of defendants was entitled to costs but denied costs to the corporate defendant due to its pre‑litigation conduct, which the court described as outrageous and contributing to the litigation.

Costs of $40,000 inclusive were awarded to the remaining defendants.

The plaintiff sought interlocutory injunctions enforcing non‑competition and non‑solicitation clauses in a 2004 agreement against several financial advisors and a related investment dealer after the advisors opened a competing branch nearby.

The court applied the RJR‑MacDonald test and considered whether the restrictive covenants were reasonable in geographic scope, temporal scope, and scope of prohibited activity.

Although the geographic scope was arguably reasonable and there was a serious issue to be tried regarding temporal scope, the court found the activity restrictions overly broad and therefore unreasonable.

As a result, the plaintiff failed to establish the required strength of case to justify interlocutory injunctive relief.

The balance of convenience also weighed against granting the injunction because a competing branch would operate regardless.

The motion for interlocutory injunctions was dismissed.

The appellant bank sued several financial institutions and insurers for approximately $100 million arising from a massive equipment leasing fraud involving forged endorsements.

The respondent financial institutions successfully moved for summary judgment dismissing the appellant's claims for negligence, unjust enrichment, and money had and received.

The Court of Appeal allowed the appeal and set aside the summary judgment, finding that the motion judge committed two fundamental errors: reversing the onus by requiring the responding party to establish a genuine issue for trial, and deciding the motions on the assumed fact that the endorsements were forged.

The Court ordered the entire action to proceed to trial, noting that novel claims should be decided on a full evidentiary record.

The applicants, a group of dairy farmers who export their milk, sought judicial review of a decision by the Minister of Agriculture and Food.

The Minister had rescinded a Tribunal order that would have allowed the applicants to export milk without holding provincial quota.

The applicants challenged the Minister's decision on administrative law grounds, including bias and inadequate reasons, and argued that the provincial milk marketing scheme was an ultra vires attempt to regulate international trade.

The Divisional Court dismissed the application, finding that the provincial scheme was a valid regulation of intraprovincial trade that only incidentally affected exports, and that the Minister's decision was not patently unreasonable, biased, or procedurally unfair.