Alistair Riswick

The plaintiffs brought a motion for the appointment of an inspector under s. 161 of the Business Corporations Act to investigate two defendant companies.

The defendants opposed, arguing the plaintiffs lacked standing as they were no longer shareholders.

The court found the plaintiffs had standing based on original share certificates.

The court granted the motion, holding that the companies' failure to provide financial statements prior to 2012 raised an index of suspicion of oppressive conduct, meeting the low evidentiary threshold for appointing an inspector.

The inspector's mandate was limited to issues not statute-barred.

The Royal Bank of Canada (RBC) sought substantial indemnity costs following a successful summary judgment motion against Michael A. Lunardi.

Lunardi had provided a personal guarantee and raised a defence of non est factum, which was rejected in the prior summary judgment.

RBC's guarantee agreement included a clause for legal costs on a "solicitor and own client basis." The court found that RBC was entitled to substantial indemnity costs as per the contractual term, which was freely entered into and not unconscionable.

The court also determined the appropriate amount, rejecting Lunardi's argument that the costs were excessive, noting that the amount sought was only slightly higher than Lunardi's own partial indemnity costs outline.

The plaintiff bank brought a motion for summary judgment against the defendant guarantor to collect on a commercial loan in default.

The defendant pleaded non est factum, arguing he signed a $1,000,000 personal guarantee without reading it, mistakenly believing his liability was limited to $500,000.

The court applied the three-part test for non est factum and found no genuine issue for trial, noting the defendant was careless in failing to read the document and there was no misrepresentation by the bank.

Summary judgment was granted to the plaintiff.

The appellants appealed a trial judgment granting the respondent subcontractor's construction lien claim for unpaid work.

The appellants argued the trial judge provided inadequate reasons for credibility findings and erred by failing to reduce the claim for incomplete work.

The Divisional Court dismissed the appeal, finding the trial judge's reasons were more than sufficient and deferring to the trial judge's factual finding that the work contemplated by the contracts had been completed before the relationship broke down.

This costs endorsement followed a motion in which the plaintiff, a self-represented litigant, was unsuccessful against two corporate defendants.

The court held the defendants were the successful parties under Rule 57.01 of the Rules of Civil Procedure and entitled to costs, but reduced the amounts sought after balancing fairness, reasonableness, and access to justice considerations.

Although allegations of fraud and misrepresentation had been advanced and not proven, the court declined to award the full amounts claimed and fixed all-inclusive costs at reduced figures.

The plaintiff was ordered to pay both costs awards within 60 days.

The moving defendants sought leave to amend their statement of defence to add a counterclaim, crossclaim, and a third party claim in a mortgage enforcement action brought by trustees for syndicated mortgage investors.

The court held that several proposed amendments attempted to withdraw admissions deemed under a Request to Admit, which could not be done indirectly through amended pleadings.

The court further found that proposed claims for an accounting and set-off were not proper defences to the mortgage claim.

The proposed third party claim relating to an alleged improvident sale of a separate property was unrelated to the main mortgage dispute and appeared designed to delay the proceedings.

Leave to amend the defence and counterclaim and to commence the third party claim was dismissed, but leave to add the crossclaim was granted on an unopposed basis.

The self-represented plaintiff brought a motion to transfer her Small Claims Court action against a home builder to the Superior Court of Justice, amend her claim to increase damages, and add a flooring contractor as a defendant.

The court dismissed the motion, finding that the plaintiff had deliberately chosen the Small Claims Court forum and that there were no new facts to justify a transfer.

Furthermore, the court held that the proposed new claims and the claim against the new defendant were statute-barred under the Limitations Act, 2002, as the plaintiff had knowledge of the defects more than two years before seeking to amend her claim.

This was a costs endorsement arising from an appeal concerning costs at first instance on a motion for summary judgment.

After receiving written submissions from counsel, the court ordered that those costs be costs in the cause.

The amount was not fixed by the appellate court and was left to the summary judgment judge or trial judge, as the case may be.

Following a trial judgment awarding damages to the plaintiff and dismissing the defendants’ counterclaim, the court determined the appropriate costs award.

The plaintiff relied on a Rule 49 offer to settle that was more favourable than the judgment obtained and sought partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The defendants argued the claimed fees were disproportionate to the amount at issue.

The court held that the plaintiff’s rates and hours were reasonable given the claim and counterclaim and that the Rule 49 offer satisfied the requirements of Rule 49.10(1).

The court awarded partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, plus disbursements and HST.

An electrical subcontractor brought an action to recover unpaid amounts for work performed under two construction contracts relating to electrical installations at a commercial property.

The contractor alleged deficiencies, incomplete work, and counterclaimed for costs incurred to complete or repair the work after removing the subcontractor from the site.

The court determined the scope of the main contract and a separate office/showroom contract, finding that the subcontractor had substantially completed its contractual obligations and that additional work performed after a fire constituted a compensable extra.

The contractor’s refusal to pay progress draws and order removing the subcontractor from the site constituted a breach and a failure to mitigate damages.

Judgment was granted for the subcontractor and the contractor’s counterclaim was dismissed.

The respondent purchased a residential property from the appellant and later discovered it had previously been used as a marijuana grow-op and contained mould.

The respondent successfully obtained partial summary judgment on liability.

On appeal, the Court of Appeal set aside the judgment, finding that the motion judge's brief endorsement failed to provide any legal analysis or findings of fact regarding the existence of mould at the time of closing, thereby preventing meaningful appellate review.

At a Commercial List case conference, the court addressed procedural issues relating to documentary production, privilege waiver, and the scheduling of discoveries.

The plaintiffs had expressed a desire to bring a motion to strike certain counterclaims, while certain defendants contemplated a motion for a further and better affidavit of documents.

The court declined to schedule those motions, directing instead that the matters be addressed through examinations for discovery and cooperative document production.

Counsel were directed to resolve production issues, exchange documents, and establish a protocol for property inspections to facilitate an expert valuation report.

The defendant brought a motion under Rule 51.05 of the Rules of Civil Procedure seeking leave to withdraw deemed admissions arising from a failure to respond to a request to admit.

The plaintiff simultaneously moved for judgment based on those deemed admissions.

Applying the three‑part conjunctive test from Antipas v. Coroneos, the court held that the proposed withdrawal raised triable issues, that the defendant had provided a reasonable explanation for the failure to respond, and that any prejudice to the plaintiff could be compensated by costs.

Although the defendant’s conduct demonstrated a “head in the sand” approach, denying withdrawal would have prevented adjudication of a significant monetary dispute on the merits.

The court set aside the deemed admissions, dismissed the plaintiff’s motion for judgment, and ordered costs in favour of the plaintiff.

The applicant transferred legal title of her home to her two sons while retaining a life interest and executing an unregistered declaration of trust naming herself as the beneficial owner.

One of the sons later falsely claimed full ownership of the property to secure a vehicle lease, leading the respondents to register executions against him.

The applicant sought a declaration that she was the sole beneficial owner and that the executions did not attach to the property.

The court found that the applicant had the requisite certainty of intention to create a valid trust in 2003, and therefore her prior unregistered beneficial interest took priority over the execution creditors.

The vendor sought an order requiring the purchaser to replace a $64,000 letter of credit used as a security deposit under an Agreement of Purchase and Sale after the vendor had drawn down the existing letter of credit.

The purchaser argued that the obligation to maintain the security deposit ended once the contractual conditions for its return were satisfied, namely the issuance of final grading certificates and completion of the top coat of asphalt on the subdivision roads.

Interpreting the agreement as a whole, the court held that the obligation to issue or maintain letters of credit was not independent of the obligation to maintain the security deposit itself.

Once the security deposit obligation expired under the amended return provisions, there was no contractual basis to compel the purchaser to issue a new letter of credit.

The application was dismissed and costs were awarded to the purchaser.

The appellants, a debtor and his employer (the garnishee), appealed an order requiring the garnishee to remit funds to the Sheriff pursuant to a notice of garnishment.

The debtor had made an assignment in bankruptcy after the notice was issued and was subsequently discharged.

The Court of Appeal dismissed the appeals, finding that the judgment debt survived the bankruptcy under s. 178(1) of the Bankruptcy and Insolvency Act because it arose from the debtor's misappropriation of funds while acting in a fiduciary capacity.

The Court also held that the stay of execution ceased when the trustee was discharged, and no leave was required to enforce the unconditional judgment.

The applicant landlord sought leave to appeal an arbitrator's decision which found that the respondent tenant was justified in terminating its commercial lease and ceasing rent payments due to a fundamental breach by the landlord regarding a dangerous sub-ceiling.

The Superior Court of Justice granted leave to appeal, finding that the arbitrator's failure to interpret the lease agreement to determine the allocation of repair responsibilities and failure to apply the established legal test for fundamental breach constituted errors of law.

The court set aside the arbitrator's decision and remitted the matter to a new arbitrator for a rehearing.

The applicant requested to amend her human rights application to add the ground of disability and to correct the name of the corporate respondent.

The respondents did not respond to these requests.

The Tribunal granted both amendments, noting the disability ground arose from facts alleged in the respondents' own response and there was no prejudice.

Additionally, a lawyer consulted by the respondents requested an adjournment of the upcoming hearing due to his unavailability.

The Tribunal denied the adjournment, holding that retaining counsel shortly before a hearing does not constitute exceptional circumstances.

The appellant appealed an order interpreting a release executed following the settlement of a dispute.

The Court of Appeal upheld the application judge's finding that the release covered the claim for removal of excess fill, as the facts were known to the appellant when the release was executed.

The Court also upheld the reduction of a letter of credit and the imposition of additional terms.

The appeal was dismissed with costs.

The appellant developer appealed a trial judgment finding it was not entitled to bill respondent builders for certain repairs in a residential building project due to failure to comply with a contractual notice provision.

The developer argued the provision was ambiguous and relied on promissory estoppel.

The respondent builders cross-appealed an order requiring them to post security for potential municipal repairs.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that the notice provision was unambiguous, promissory estoppel was not established, and the builders had a clear contractual obligation to maintain the security deposit.