RECENT CASES

Bonisteel v. Investment Planning Counsel of Canada et al.

Successfully defeated a motion for summary judgment alleging that the Plaintiff, who had been advised to transfer the commuted value of his Teacher’s Pension Plan into an Individual Pension Plan, had suffered no damage.

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Masales v. Cole

Successfully defeated a motion for summary judgment alleging an expired limitation period in a claim against a rogue investment advisor at a major international financial services company. The Defendants argued that the Plaintiffs were sophisticated investors and the action was out of time pursuant to the Limitations Act, 2002. The Court found that there was a genuine issue requiring a trial as to whether the Plaintiffs knew that they had a claim against the Defendants. The Court held that the test for discoverability is a fact-based analysis and contains discrete subjective and objective elements that should not be conflated.

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Gunggo Co. Ltd. v. Tieu et al.

Awarded costs of $9,500 for the Plaintiff’s improper noting of the Defendants in default and obtaining default judgment without notice. The Plaintiff was well aware that the Defendants were actively defending the action. The Court held that the actions of the Plaintiff were less than civil and were not to be condoned.

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J.G. v. L.K. and L.K. (additional reasons on costs)

Successfully claimed costs of a seven-day trial on a substantial indemnity basis.

Ontario Chrysler Jeep Dodge Inc. v. Delisle

Successfully brought a motion for summary dismissal and obtained a large costs award on behalf of an individual defendant by counterclaim in a corporate employment matter. In dismissing the counterclaim as against the now retired president and director of the corporate plaintiff, the Court held that directors and officers cannot be personally liable for wrongful dismissal, unless they act outside of their roles as directing minds of the corporation.

J.G. v. L.K and L.K

Successfully claimed that the transfer by a wife of property to her mother mere months before separation from her husband constituted a fraudulent conveyance.

A professional partnership (supplemental decision on damages)

In its initial judgment (described below), the Court identified the types of damages payable (most of which had never been disputed by the Defendants), but left the specific figures to determination by the parties. They could not agree on the specific amounts owing for vacation pay and pension, and sought the Court's assistance. Stewart J. accepted the Defendants' submissions in their entirety.

A professional partnership

Successfully defeated the Plaintiff’s claims that he was entitled to dissolve the Defendant accounting partnership upon his withdrawal and that he was entitled to be paid for a portion of the partnership’s goodwill, after a four-week trial. The Court found that, despite there being no written partnership agreement at the time of the Plaintiff’s departure, the terms of the agreement were clear from the conduct of the partners over the many years that the Plaintiff was a partner. This conduct indicated that a departing partner is not entitled to a payment for goodwill on departure, and such departure does not trigger the dissolution of the partnership.

Two-Tyme Recycling v. Toronto-Dominion Bank

Successfully obtained leave to amend the Statement of Claim. The Defendant resisted the Plaintiff's amendments on the grounds that they withdrew admissions, that the Plaintiff was asserting a new cause of action after the expiry of a limitation period and that the amendments would be an abuse of process because they contradicted prior affidavit evidence and judicial determinations. In granting leave, the Court found that the amendments did not withdraw admissions and that even if they did, the Plaintiff met the test for doing so. The Court also found that the limitation period did not start to run until the Plaintiff had actual knowledge of the new cause of action, which did not occur until it reviewed the Defendant’s documentary productions relating to the original claim.

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SkyPower v. SunEdison Canada

Successfully defeated an application to set aside an arbitral award obtained by the Respondent. The Respondent had made loans, whose repayment depended on completion of punch list items at each of two solar energy construction projects, to the Applicant. At arbitration, the conditions for repayment were found to have been satisfied and the Applicant was ordered to repay the loans to the Respondent. In reviewing the Arbitrator's decision, the Court found that the Arbitrator had not failed to decide an issue before him and had not denied the Applicant natural justice or procedural fairness. SkyPower sought leave to appeal from the Court of Appeal, but its application was dismissed.

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SUCCESSFUL REPRESENTATION