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.

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.

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 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 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.

The appellant appealed a motion judge's decision finding her action was statute-barred.

She sought to admit a 2003 cheque as fresh evidence to show a payment on the mortgages.

The Court of Appeal dismissed the application to adduce fresh evidence because the appellant provided no explanation for failing to adduce it before the motion judge, and dismissed the appeal.

The appellants appealed a summary judgment enforcing an equipment financing lease, arguing the lease was illegal and void for contravening the Electrical Safety Code.

The Court of Appeal dismissed the appeal, finding that the lease contained non-recourse provisions and that not every statutory breach invalidates a commercial contract for illegality.

The court concluded there was no genuine issue for trial regarding the lease's enforceability.

The appellant proceeded by way of power of sale but the Notice of Sale did not reference an obligation under the Agreement of Purchase and Sale.

The respondent tendered the full amount of the debt specified in the Notice of Sale.

The Court of Appeal upheld the application judge's finding that the appellant was bound to deliver the discharge upon tender of the specified amount, as finding otherwise would impermissibly clog the equity of redemption.

The appellant purchased 88 lots from the respondent developer.

The parties disputed who was responsible for paying certain development charges to the municipality under their Agreement of Purchase and Sale.

The motion judge found the respondent was not required to pay charges due after the registration of the Plan of Subdivision, interpreting 'prerequisite' temporally.

The Court of Appeal allowed the appeal, holding that interpreting the contract as a whole required 'prerequisite' to mean an obligation to pay, giving effect to a clause permitting payment after registration.