Winston Fogarty

The applicants and a related party obtained orders enforcing letters of request from a Florida court to compel the respondent to produce documents from electronic devices held by an independent third party (PWC).

The US court ordered the respondent to produce non-privileged documents, but on the deadline, his US counsel moved to withdraw, and the respondent unilaterally instructed PWC to revoke his US counsel's access to the database.

The court directed PWC to restore the US counsel's access, finding that the respondent could not unilaterally frustrate the discovery process by firing his lawyer.

This endorsement addresses a dispute over document production costs in Ontario, arising from letters of request issued by a Florida court to compel the respondent, Mr. Smith, to produce documents and attend examination in aid of US litigation.

The applicants (Perlmutters and Mr. Peerenboom) sought to avoid or shift the costs of Mr. Smith's counsel reviewing documents for relevancy and privilege, arguing Mr. Smith was an interested party and not impecunious.

The court affirmed its prior ruling that Mr. Smith's counsel must conduct the review and that the applicants are liable for these costs on a full indemnity basis, ordering them to pre-pay $200,000 for continued document production.

The parties attended a case conference to address the implementation of a prior order enforcing Letters of Request from a Florida court.

The court clarified that the prior order only applies to examinations conducted in Ontario, not to depositions held in Florida.

The court also ruled that the respondent's Ontario counsel is entitled to review documents generated by keyword searches for relevancy prior to production, provided they produce a log of all hits indicating their relevancy determinations.

Following the dismissal of the appellant's appeal regarding the enforcement of letters of request, the parties made written submissions on costs.

The respondents sought costs, with one respondent relying on offers to settle the appeal.

The Court of Appeal ordered all parties to bear their own costs, noting that the underlying litigation in Florida was ongoing and that Rule 49 of the Rules of Civil Procedure generally does not apply to appeals.

The court found this was not a rare occasion where an offer to settle an appeal should be taken into account.

The appellant appealed an order giving effect to two Letters of Request from a Florida court in a defamation and conspiracy action regarding a hate mail campaign.

The appellant, an Ontario resident, argued his evidence was otherwise obtainable, the requests were unduly burdensome, lacked specificity, and resulted from a flawed foreign process.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's application of the Friction Division factors and his conclusion that the evidence was relevant, necessary, and not otherwise obtainable.

This endorsement addresses the issue of costs following an application to enforce two Letters of Request from a Florida court, directed at David Smith.

The underlying dispute involved allegations of a hate mail campaign orchestrated by Isaac Perlmutter against Harold Peerenboom, with David Smith allegedly involved.

All parties (Isaac and Laura Perlmutter, Harold Peerenboom, and David Smith) sought costs for the Canadian application.

The court found it impossible to meaningfully decide the issue of costs without knowing the ultimate results of the two related Florida actions, as the success or failure of the allegations would significantly impact the entitlement to costs.

Given the ongoing litigation and the direct interest of all parties in the outcome, the court ruled that each party should bear its own costs.

The applicant, a former officer of a municipally-owned utility corporation, sought indemnity and advancement of legal costs for his participation in a judicial inquiry investigating the sale of the utility's shares.

The respondent corporation denied the request, arguing the inquiry was not a proceeding that triggered the indemnity bylaw and that allegations of possible misconduct precluded advancement.

The court held that the inquiry was a proceeding under the bylaw and that section 136 of the Business Corporations Act provided discretionary authority to order advancement of costs.

The court ordered the respondent to advance the applicant's legal costs for the ongoing phase of the inquiry, subject to repayment if the applicant is ultimately found not to have acted honestly and in good faith.

The Proposed Intervenors brought a motion for leave to intervene in an application to set aside an arbitration award arising from the receivership of a Ponzi scheme.

The Proposed Intervenors argued they had an interest in the subject matter, would be adversely affected, and shared common questions of law or fact, as they faced similar claims in separate proceedings.

The court dismissed the motion, finding the Proposed Intervenors had no direct interest in the subject matter, would not be adversely affected by the judgment, and would not make a useful contribution without causing injustice or delay to the immediate parties.

This is a scheduling endorsement in a complex bankruptcy and receivership proceeding.

The court established timetables on consent for upcoming motions to strike in related Small Claims Court matters, a motion to intervene by a law firm, and an application to appeal an arbitration award.

The court also directed the filing of arbitration transcripts and encouraged the parties to agree on terms for turning over certain rent-to-own properties.

An RCMP officer challenged the constitutionality of legislation excluding RCMP members from the federal public sector labour relations regime, alleging infringements of freedom of association, freedom of expression, and equality rights under the Charter.

The majority held that s. 2(d) protects the formation of independent employee associations and lawful collective activity, but does not require Parliament to include RCMP members within a particular statutory labour relations scheme.

The majority further held that the exclusions did not infringe s. 2(b) or s. 15(1), emphasizing that the Charter generally imposes no positive obligation of legislative inclusion absent exceptional circumstances.

The appeal was dismissed, with a dissent concluding that the exclusion had an anti-associational purpose and failed s. 1 justification.