Zohar R. Levy

The appellant appealed a summary judgment enforcing his guarantee of a corporate overdraft credit facility.

He argued that the bank's assurances regarding dual signing authority and online account access were conditions precedent to the guarantee, and that the bank was liable for misrepresentation and negligence for allowing withdrawals before these safeguards were in place.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the assurances were not conditions precedent, the guarantee contained an entire agreement clause, and the bank did not owe a duty to deny credit facilities until the safeguards were implemented.

This five-judge appeal reconsidered the common law governing non-disclosure of partial settlement agreements in multi-party civil litigation.

The court held that the prior rule mandating an automatic finding of abuse of process and an automatic stay, without proof of prejudice or regard to proportionality, was wrongly decided and should be overruled.

The proper approach requires a contextual and discretionary abuse of process analysis focused on unfairness, prejudice, oppression, harm to the administration of justice, and a proportionate remedy, with r. 49.14 of the Rules of Civil Procedure reinforcing that framework.

Applying that approach, the court allowed two appeals and remitted those matters, while dismissing two others where the record was sufficient to determine the result.

The court approved a proposed settlement and certified the action for settlement purposes under the Class Proceedings Act, 1992.

The class consists of approximately 100 investors in a failed real estate limited partnership project.

The settlement restores the class members’ proportionate interest in the property, now with greater development density and less debt, and is considered generous.

The court found the settlement fair, reasonable, and in the best interests of the class, and approved class counsel’s fees.

The action will continue only as between the defendants for unresolved crossclaims.

The moving parties sought leave to appeal a July 2, 2024 decision of Justice Black.

The Divisional Court granted leave to appeal on the single issue of whether the Anton Piller order was correctly enlarged to include the business and phone computer of one of the moving parties.

Leave to appeal on all other issues was dismissed.

The court also granted a stay of paragraphs 2 to 4 of the underlying order pending the appeal, with no costs awarded due to divided success.

The plaintiffs sought to amend their claim to include Cara Vaccarino as a defendant and requested an order for the mirroring of her electronic devices and email account to preserve confidential and proprietary information.

This request arose after it was discovered that another defendant, Ms. Anderson, had forwarded confidential information to Ms. Vaccarino.

Despite Ms. Vaccarino's assertion that she did not recall opening or using the email, the court found it appropriate to order the mirroring to preserve evidence and determine the use of the information.

The court ordered the mirroring to cover the period from June 1, 2023, to the present, with counsel to coordinate the least disruptive process.

The Plaintiffs, Evertz Technologies Inc. et al., brought a motion seeking to continue confidentiality provisions regarding settlement agreements (Pierringer Agreements) reached with the Lawo Defendants, who had settled out of the multi-party litigation.

The Providius Defendants, non-settling parties, opposed the continuation of confidentiality, arguing that the terms of the settlement agreements directly impacted them and were necessary for a new action they intended to bring against Evertz and Lawo.

The court dismissed the Plaintiffs' request, finding that Evertz failed to meet the high burden for a confidentiality order under the Sierra Club and Sherman Estate tests, as the commercial interest in confidentiality did not transcend the parties' specific interests and maintaining confidentiality would significantly prejudice the Providius Defendants' ability to plead and obtain a fair trial in their intended action.

The appellants appealed a certification order in a price-fixing class action regarding packaged bread.

They argued the motions judge erred by excluding indirect purchasers who bought bread from non-defendant retailers.

The Divisional Court dismissed the appeal, finding that the motions judge properly settled the certification order to reflect his reasons and the nature of the single conspiracy pleaded, which required the product to pass through both a defendant producer and a defendant retailer.

This is a motion for leave to intervene brought by the Canadian Civil Liberties Association (CCLA) in an appeal concerning the dismissal of an anti-SLAPP motion.

The underlying dispute involves a defamation and harassment action by 40 Days for Life against Brooke Dietrich for online protest activities.

The CCLA sought to intervene to make submissions on the application of protest jurisprudence to online expressive activity and the development of the tort of internet harassment in light of freedom of expression.

The Court of Appeal for Ontario granted the CCLA leave to intervene, finding that it could make a useful contribution on public policy issues without causing injustice or undue prejudice to the parties, despite the motion being brought at a late stage.

The plaintiffs brought a motion for leave to appeal an order excluding from the class for certification persons who claim damages for purchases of packaged bread directly or indirectly sold by a defendant producer without being resold by a defendant retailer.

The Divisional Court granted the motion for leave to appeal on this issue and reserved costs to the panel hearing the appeal.

The defendants brought a motion for leave to appeal an order of Morgan J. dated December 31, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded in favour of the plaintiffs in the amount of $15,000 all inclusive, payable jointly and severally by the defendants.

The applicant estate sought a preservation order to prevent the respondent mining company from dealing with a 1.5% net smelter return royalty interest.

The interest had escheated to the Crown after the corporate owner was dissolved in 1989, and was recently sold by the Public Guardian and Trustee to the respondent.

The applicant acknowledged lacking standing to challenge the sale without a special statute to revive the dissolved corporation, which the Legislature had already refused to pass.

The court dismissed the application, holding that Rule 45.01 does not permit a standalone application for a preservation order in contemplation of a future, possible lawsuit by a party that currently lacks standing.

The appellant, Detour Gold Corporation, appealed a summary judgment declaring that the respondent, Prism Resources Inc., held a valid and enforceable royalty interest in Detour's mining claims as an interest in land.

The appeal concerned the interpretation of a 2004 letter agreement between Prism and Conquest Resources Inc., Detour's predecessor, and the application of principles from Bank of Montreal v. Dynex Petroleum Ltd. and Sattva Capital Corp. v. Creston Moly Corp. The Court of Appeal dismissed the appeal, affirming that the motion judge correctly found Prism's royalty to be an interest in land, based on the parties' intention inferred from the agreement, surrounding circumstances, and admissible subsequent conduct.

The appellant, Detour Gold Corporation, brought an unopposed motion for leave to file a five-page reply factum.

The Court of Appeal granted the motion, using the opportunity to critique the current appellate rules that necessitate such motions.

The judge advocated for an automatic right to file brief reply factums to enhance written advocacy, improve judicial preparation, and reduce unnecessary litigation costs, highlighting a procedural gap in both civil and criminal appellate rules.

The moving party brought a motion under Rule 59.06 to vary an interlocutory injunction that prohibited him from competing with or soliciting customers of the responding party.

The court found that the responding party had failed to pursue their case with reasonable dispatch, as pleadings were not yet closed 15 months after the injunction was granted.

Furthermore, the contractual non-competition and non-solicitation periods in the Professional Services Agreement had already expired.

The court granted the motion in part, terminating the non-competition and non-solicitation obligations against the moving party personally.

The respondent, a UK-based company, brought a motion to stay the application against it for lack of jurisdiction simpliciter, or to set aside service ex juris.

The applicant cross-moved to amend its Notice of Application to plead additional grounds for service outside Ontario and to add a claim for inducing breach of contract.

The court granted the applicant leave to amend, finding no non-compensable prejudice.

However, while the court found service ex juris was validly effected under the amended rules, it concluded that it lacked jurisdiction simpliciter over the foreign respondent because none of the presumptive connecting factors from Van Breda were established.

The application against the foreign respondent was stayed.

Following a previous decision, the parties reached an agreement on the costs of the motion.

The court ordered the plaintiffs to pay the defendant $10,000 inclusive of HST and disbursements, in accordance with the parties' agreement.

The plaintiff employers brought an urgent motion for an interim interlocutory injunction to restrain a former employee from disclosing confidential information, soliciting clients, and competing with their live events business.

The court applied the RJR-Macdonald test and found that while there was a serious issue to be tried, the plaintiffs failed to demonstrate irreparable harm, as any potential damages could be quantified and compensated financially.

The balance of convenience favoured the defendant, as an injunction would prevent him from earning a livelihood in his chosen field.

The motion was dismissed without prejudice to a full hearing on a complete record.

The applicant sought leave to appeal or set aside two arbitral awards issued in favour of the respondent regarding a commercial dispute over the manufacture of blow moulding machines.

The court dismissed the application, finding that the applicant had waived its right to object to the arbitrator's jurisdiction by failing to raise the issue until closing arguments.

Furthermore, the court held that the 'final and binding' language in the parties' arbitration agreement precluded any right of appeal under s. 45 of the Arbitration Act.

The court also rejected arguments that the arbitrator failed to consider evidence, acted unfairly, or demonstrated a reasonable apprehension of bias, concluding that the arbitrator's findings were reasonable and well-founded.

Following a declaration that the respondents were vexatious litigants, the applicants sought costs on a full or substantial indemnity basis.

The court awarded costs on a substantial indemnity basis due to the respondents' abusive conduct.

However, the court reduced the costs claimed by one applicant because their counsel was located in Toronto, finding it unreasonable to expect the unsuccessful party to pay higher Toronto rates for a matter heard in the Ottawa region.

The representative plaintiff brought a motion for approval of a $5,000,000 settlement in a class proceeding against a Children's Aid Society regarding a privacy breach where confidential client information was leaked online.

The court found the settlement fair, reasonable, and in the best interests of the class.

The court also approved class counsel's contingency fee of approximately $1.6 million plus disbursements, applying the Smith Estate factors, and approved a $5,000 honorarium for the representative plaintiff to be paid from counsel's fees.