Highlights of the Practice of J. Gardner Hodder, 1995-2005

Lo Faso v. Kelton & Ferracuti Consultants Limited, (2004) 3 C.P.C. (6th) 368 (C.A.).  Here the court allowed our client’s appeal and agreed that he was entitled, as an execution creditor of a dissolved corporation, to sue upon a claim which had been the property of the corporation prior to dissolution.

Ward-Price v. Mariners Haven Inc. (2004), 71 O.R. (3d) 664 (S.C.J.) - In this case the court confirmed the right of our clients, as members of a plaintiff class, to received legal advice from us when they were deciding whether or not to opt out of
the Class Proceeding.

Ontario (Real Estate & Business Brokers Act, Director) v. NRS Mississauga Inc. (2003), 64 O.R. (3d) 97 (C.A.) - This decision of the Court of Appeal clarified the relationship between trust claimants and security holders in an insolvency situation.

Fox Estate v. Stelmaszyk (2003), 65 O.R. (3d) 846 (C.A.) – This case clarified the nature of a court’s discretion in enforcing accepted offers to settle.

Ward-Price v. Mariners Haven Inc.  (2002), 36 C.P.C. (5th) 189 (Ont.Sup.Ct.) - Here the Superior Court certified our client's claim as a Class Proceeding.

Ross v. Christian and Timbers, Inc. (2002), 18 C.C.E.L. (3d) 165 (Ont. Sup. Ct.) - This interesting matter concerned a Defendant's motion for a stay of proceedings based on an arbitration provision in an impugned employment agreement.

Downtown Eatery (1993) Ltd. v. Ontario (2001), 54 O.R. (3d) 161 (C.A.) - In this case, the Court of Appeal reversed a trial decision and expanded on an earlier decision so as to apply judicial discretion to cause of action estoppel, relating to the bringing of a new action to enforce a judgment against parties who were not parties to the original action.  The decision also represents the first time the Court of Appeal has considered the doctrine of common employer, something which courts in Western Canada have been developing for some time.  In the area of corporate law, this decision represents the first time the Court of Appeal has declared that is not necessary for a creditor, to assert an oppression remedy under the Ontario Business Corporations Act, to show that directors or shareholders intended to prevent the creditor from being paid.  Proof of a creditor's reasonable expectation is sufficient.

Ward-Price v. Mariners Haven Inc. (2001), 199 D.L.R. (4th) 68 (Ont. C.A.), 57 O.R. (3d) 410 (C.A.) - This Class Proceeding included claims for knowing assistance and knowing receipt in respect to a breach of trust.  On motion, the court held that the underlying duties owed were not trust duties.  On appeal, this decision was reversed in favour of the client.

Duncan (Litigation guardian of) v. Neptunia Corp. (2001), 58 O.R. (3d) 754 (S.C.J.) - In this case, the court dismissed a motion brought by a Defendant who sought to prohibit our client from bringing an action in Ontario.

Midtown Wines Inc. v. Mogg Enterprises Inc., [2001] O.J. No. 8 and 167 - This case represents the first time in Ontario that the holder of a General Security Agreement was able to avoid the cost of a court-appointed receiver by obtaining an injunction restraining the debtor corporation from interfering with the exercise of the creditor’s right to appoint a private receiver.

Albrecht v. Sokol (2001), 42 R.P.R. (3d) 101 (Ont. Sup. Ct.) - Court resolved this interesting fact situation on a Vendors and Purchasers application in favour of the client.

Robinson v. Daewoo Canada Ltd. [2000] O.J. No. 3591 (S.C.J.) - This multifaceted  case concerns a number of interesting issues having to do with the enforcement of an 11 million dollar judgment arising from the breach of a computer manufacturing contract.  The client was unsuccessful on a summary judgment motion, and this adverse decision was upheld on appeal.

Ciano v. York University  [2000] O.J. No. 3482  (Ont.C.A.) - This was a class action in which the representative Plaintiff sought to recover university tuition fees corresponding to the period of time that the Defendant York University faculty was on strike.  While acknowledging that Mr. Ciano was not able to attend all of the classes that he contracted for, the Court nevertheless dismissed this claim.  At first instance, the Honourable Mr. Justice Winkler awarded $30,000.00 in costs against the representative Plaintiff before bringing the action.  While upholding the dismissal of the action, the Ontario Court of Appeal held that the matter entailed a novel point of law and ordered that the Plaintiff need not pay any costs.

G.K. v. D.K.  (1999), 38 C.P.C. (4th) 83 (Ont. C. A.) affirming (1997) 35 O.T.C. 319 (Gen. Div.) - This was a significant case dealing with appellate review of instructions to a civil jury. The client had been awarded significant damages for breach of fiduciary duty after a lengthy trial, and the award was upheld on appeal.  Further application for leave to appeal to the Supreme Court of Canada was dismissed.

Xerox Canada Ltd. v. Ontario (Director of Employment Standards)  (1999), 47 C.C.E.L. (2d) 199 (Ont. Div. Ct.), the majority decision of the Divisional Court in this case distinguished some recent appellate cases in which sexual harassment had been found to be just cause for dismissal. Given the strident dissenting reasons of one judge of the panel, this case likely represents an important dividing line on this issue. Again, the client recovered a significant award.

Szecket v. Huang  (1998), 42 O.R. (3d) 400 (C.A.) - This case is another notable victory. In it, the Court of Appeal set out the conditions in which it would be prepared to adopt and apply the dissenting reasons given in a decision of another panel of the same court. The case concerned pre-incorporation contracts, and the clients were awarded approximately $1 million.  The decision was upheld on appeal.

Budd v. Bath Creations Inc.  [1998] O.J. No. 5468 (Gen. Div.) - Damages in lieu of notice for 16 months were awarded to the client who had been employed two months following the sale of a business in which he had previously been employed for seven and a half years as a chartered accountant and business manager.  The notice period was extended because of a non-competition agreement affecting the availability of the Plaintiff to obtain similar employment.  The period was further extended because the employer had been less than forthright and candid about the Plaintiff’s prospects.

Horth v. Slokker Canada Corp.  [1998] O.J. No. 4151 (C.A.) - Here, on appeal, the client successfully overturned an adverse judgment against it arising from a building contract.

Ruggeberg v. Bancomer, S.A.   (1998), 53 O.T.C. 350 (Gen. Div.), aff’d (1999) 122 O.A.C. 310 (C.A.), leave denied [1999] S.C.C.A. No. 289.  The client’s action was stayed on a forum conveniens motion.

Gillespie v. Retail Merchant's Assn. of Canada (Ontario) Inc. (1997), 33 B.L.R. (2d) 307 (Ont. Gen. Div.) - This matter concerned an application to the Court for surrender of a share certificate.

358426 Ontario Ltd. v. Liappas (Trustee of)  [1997] O.J. No. 4962 (C.A.) - This was a solicitor’s negligence case in which the client was unsuccessful on appeal.

Windisman v. Toronto College Park Ltd.  (1996), 28 O.R. (3d) 29 (Gen.Div.) - This was the first class action brought to trial in Ontario under the Class Proceedings Act, 1992. The Plaintiff class obtained a judgment at trial, inclusive of interest and cost, of approximately $2.9 million.

Windisman v. Toronto College Park Ltd.  (1996), 3 C.P.C. (4th) 369 (Ont.Gen.Div.) - This subsequent procedural decision in the Windisman matter established several important principles concerning fees and costs in class actions. The Defendant was ordered to pay approximately $250,000.00 in costs.

Payne v. Carr  (1996), 20 O.T.C. 289 (Gen. Div.), aff’d (2000) 133 O.A.C. 167 (C.A.) -  Disappointingly, the client, whose former solicitor admitted his failure to give proper advice, obtained no recovery.

Geo. Cluthe Manufacturing Co. v. ZTW Properties Inc.  (1995), 23 O.R. (3d) 70 (Div.Ct.) - This case marked the first time that the Advocates Society retained counsel and sought intervenor status in a matter before the courts.  It concerned the rights of a plaintiff to bring action against a defendant’s solicitor based on advice given by that solicitor to the defendant.  The client’s appeal was allowed in part.

Ontario Hydro v. Endacom 2000 Inc.  (1995), C.B.R. (3d) 1985 (Ont. Gen. Div.) - This case concerned the seizure of assets under a debenture.

Ontario New Home Warranty Program v. Carlyle Residences (II) Inc.    [1995] O.J. No. 1596 (Gen. Div.) - This case concerned the procedural obligations of a non-party.

ZTW Properties Inc. v. 799374 Ontario Ltd.   [1995] O.J. No. 2536 (Gen. Div.) - Here the client successfully opposed a summary judgment motion.
 

Further Cases:

A. v. A. (1992), 38 R.F.L. 382 (Ont.Gen.Div) - This case has been referred to a number of times in programs of Continuing Legal Education as an example of how to neutralize the opinion evidence of an expert. The result of the case was novel, as well. John Syrtash, author of Religion and Culture in Canadian Family Law, called the printers and stopped the presses so that his book could make mention of the result in this case.

Erinway Holdings v. Barrette   [1991] O.J. No. 751 - Landlord/Tenant case.

419212 Ontario Ltd. v. Environmental Compensation Corp. [1990] O.J. No. 2006 - A claim for compensation in an environmental matter.

Homes v. Singh  [1989] O.J. No. 2657 DRS 94-06165  - Breach of contract.

R. v. C. (T.)  Ontario Judgments: [1988] O.J. No. 2402 - Rights of young offenders.

Byrne v. Purolator Courier Ltd.  [1987] O.J. No. 2261 No. 299/86 - Breach of contract.

Lila v. Lila  (1986), 3 R.F.L. 226 (Ont.C.A.) - This was a family matter decided by the Ontario Court of Appeal. It was included for many years in the Bar Admission Course materials on Family Law for the proposition it established concerning entitlement to interim support where there is an allegation of a fundamental repudiation of the marriage.

Caleb v. Potts  [1986] O.J. No. 1125 - A Real Estate agent's liability case.

Siduak (c.o.b. P.M. Industries) v. Mironovich (c.o.b. Fashion Gem Imports) [1986] O.J. No. 1953 DRS 94-01126 - Breach of Contract

Jewell v. Zorkin (1986), 4 W.D.C.P. 49 (Ont.Master) - This case concerned an interesting point of pleading in the area of libel law.

R. v. Albino, Oct. 16, 1987, Ontario Lawyers' Weekly - This case concerned an interesting point of criminal procedure asserting an accused's right of election with respect to indictable offences.