Tag Archives: Fogler Rubinoff

Court Appointed Receiver Liable to pay Substantial Indemnity Costs

Earlier this year ( June 9th ), I wrote about a case in which the Court of Appeal for Ontario set aside “breathtakingly broad” receivership orders that put in place an “investigative receivership”.  This month, the court released its ruling on costs arising from its decision. See Akagi v. Synergy Group (2000) Inc. 2015 ONCA 771. 
On the appeal, the court  had set aside ex parte orders issued by Justice Colin Campbell of the Superior Court of Justice (Commercial List).  The court concluded that the orders appointing the receiver stood “on a fundamentally flawed premise” and were “unjustifiably overreaching in the powers they granted”.  
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Ontario Courts Refuse to Stay Action Against Nigerian Defendants

The Court of Appeal for Ontario released its decision in James Bay Resources Limited v. Mak Mera Nigeria Limited, 2015 ONCA 781  this week.  This is an appeal by Nigerian appellants who had lost a motion to stay an action brought by James Bay Resources Limited (“James Bay Resources”) on the ground that the Ontario courts lacked “jurisdiction simpliciter” and Ontario was not the convenient forum for the determination of the dispute between the parties. 
James Bay Resources entered into a Memorandum of Understanding (“MOU”) with the appellant, Adewale Olorunsola (“Sola”) on March 3, 2011.  The MOU was negotiated and signed in Ontario.  It set out an arrangement between the parties with respect to the acquisition of Nigerian oil and gas assets. 
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Court of Appeal Finds Judicial Bias in Bizarre Child Custody Case

In a recent decision (Clayson-Martin v. Martin, 20015 ONCA 596), the Court of Appeal for Ontario overturned a family trial judge’s decision on the basis of a reasonable apprehension of bias.
The case involved a custody and access dispute over children aged 10 and 7.  At trial, the judge granted the wife sole custody of the children.  The wife appealed that decision because it provided for the children to have generous access to the husband.  The wife submitted that access should have been terminated because the husband tried to kill her.  The case garnered some notoriety in the news because of the alleged attempted murder.  The couple separated as a result of an incident which occurred while they were on vacation in Jamaica.  Each party alleged that at the end of the vacation, while they were on a deserted road from which the husband had wanted to photograph their hotel, the other attacked with a knife. 
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Avon Settles Bribery Related Class Action

Avon Products Inc. (“Avon”) recently settled a class action lawsuit brought against the beauty products company and two former executives concerning Avon’s compliance with the US Foreign Corrupt Practices Act(“FCPA”).  Avon settled the lawsuit despite the fact that the US District Court for the Southern District of New York (“Court”) had granted a motion to dismiss the lawsuit.  In the action, certain of the company’s shareholders had alleged that Avon and its former executives had issued materially false and misleading statements concerning Avon’s compliance with the FCPA by concealing that the company had given bribes to Chinese government officials by various means, including providing lavish gifts and paying travel expenses improperly. 
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Supreme Court Permits Enforcement Proceedings Against Chevron

In closing another chapter in what has been a very long story, the Supreme Court of Canada ruled unanimously that forty-seven Ecuadorian villagers can proceed with their Ontario lawsuit against Chevron Corporation (“Chevron”) and Chevron Canada Limited (“Chevron Canada”) to recognize and enforce a U.S. $9.51 million judgment that they obtained against Chevron in the courts of Ecuador.
This writer has written about this case before. After the plaintiffs commenced an action in the Ontario Superior Court, Chevron moved to permanently stay the action on the basis that the Ontario Court had no jurisdiction to hear the matter. The motion judge ruled in the villagers’ favour with respect to the issue of jurisdiction. However, the judge exercised the court’s power to stay the proceedings on its own motion on the basis that pursuing a recognition and enforcement proceeding against Chevron in Ontario, where Chevron claimed it had no assets, would be futile and a waste of time and resources. 
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Supreme Court Rejects Racial Profiling Claim Against Bombardier

Bombardier Inc. (“Bombardier”), the Montreal based aerospace company, operates two aerospace training centers – one in Montreal and the other in Dallas, Texas – at which pilots are trained on the types of aircraft produced by Bombardier.  Bombardier holds a training certificate from the US Federal Aviation Administration under which it is authorized to provide the necessary training to pilots holding US licenses. 
Almost immediately after the terrorist attacks of September 11, 2001, the United States implemented enhanced security measures.  Such measures included enacting, in November of 2001, the Aviation and Transportation Security Act (the “Act”).  The Act required that any organization (including Bombardier) wishing to provide pilot training to an individual who was not a US citizen, submit the individual’s name to US authorities for security screening:  Screening of Aliens and Other Designated Individuals Seeking Flight Training.  The security training was carried out by the US Department of Justice (“DOJ”) until the end of September 2004.  At that time, the United States passed even stricter security screening requirements and transferred control over screening to the Department of Homeland Security.
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Court of Appeal Upholds Substantial Indemnity Costs Award

In the dog days of summer, cases that one might otherwise ignore, suddenly cry out for attention.  One such case is Matthew Brady Self Storage Corporation v. InStorage Limited Partnership 2014 ONCA858 which deals with the exciting issue of the cost consequences of offers to settle.
The principals of Matthew Brady Self Storage Corporation (“Matthew Brady”) jointly purchased with the principal of InStorage Limited Partnership (“InStorage”) a vacant factory in Windsor, Ontario and converted it into a self-storage facility.  InStorage was part of a group of corporations in the business of operating self-storage facilities and had approximately 50 sites in operation at the time.  Matthew Brady was incorporated for the purpose of acquiring and converting the property for the joint venture. 
The plans of the joint venture partners were altered when InStorage ran into financial difficulties.  This circumstance led to further negotiations and a new arrangement whereby the principals of Matthew Brady agreed to put up the entire purchase price so that Matthew Brady would become the sole owner of the Windsor property pending completion of the project.  The parties entered into a put/call agreement under which Matthew Brady could force InStorage to purchase the property through a “put” and InStorage could force Matthew Brady to sell the property to it through a “call” beginning one year following substantial completion of the retrofit and for three years after that.  
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ILN Today Post


On June 26th 2015 the Ontario Superior Court, following a trial, convicted Metron’s project manager, Vadim Kazenelson of numerous counts of criminal negligence causing death and bodily harm in relation to the collapse of a swing stage. (See 2015 ONSC 3639.) Four workers fell 14 stories to their death and one other was seriously injured. Metron Construction Inc. had already pleaded guilty and the Ontario Court of Appeal had, despite the threat of bankruptcy, increased the company’s fine on appeal from $200,000 to $750,000 see 2013, 300 C.C.C.(3d)212. More…

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New Trial Ordered after Judge Signs up for Dating Site

In a recent (and very odd) decision – R. v. H. (C.D) 2015 ONCA102 – the Ontario Court of Appeal set aside a trial judge’s acquittals of an accused on a number of charges including sexual assault, possession of a weapon and unlawful confinement and ordered a new trial on the grounds that the trial judge’s conduct gave rise to a reasonable apprehension of bias. 
The trial judge had acquitted the accused of sexual assault of his wife, but had found him guilty of the included offence of simple assault.  However, before sentencing the accused, the trial judge declared a mistrial based on a reasonable apprehension of bias that arose out of a meeting that he had in his chambers with the police officer in charge of the case immediately after he delivered the reason for his verdicts.
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County Held Liable To Farmer For Excessive Use of Road Salt

In the case indexed as Steadman v. Lambton (County) 2015 ONSC 101, the plaintiff, (“Steadman”) and his wife, lived on a farm bordering Nauvoo Road in Lambton County, Ontario (“County”).  Mr. Steadman had been a full-time farmer for all of his adult life.  His wife was a retired nurse.  
Mr. Steadman farmed wheat and soybeans on his land and had been doing so for more than 40 years.  In the mid to late 1990s he observed crop damage due to the County spraying salt on Nauvoo Road.  He sued the County for nuisance, claiming crop losses, diminution of the value of his farm.  Mr. Steadman also claimed that the farm was now burdened with a “stigma’ of having been damaged by the salt.   
The County defended the action claiming that the real culprit was the poor drainage on Mr. Steadman’s property; he had taken no steps to fence the property and restrict the wind’s distribution of salt or use gypsum to mediate the effects of salt on his land.
The matter proceeded to trial before Justice Carey of the Ontario Superior Court of Justice.
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