Allan D.J. Dick

The applicant commenced an application challenging her late father's will and seeking dependent support.

On the eve of trial, the applicant reached a settlement with the estate trustee and brought a motion to discontinue the proceeding.

The non-settling respondent opposed the discontinuance and sought to be substituted as the plaintiff.

The court granted the motion to discontinue, finding the applicant would be prejudiced if forced to proceed to trial, while the non-settling respondent could still commence his own proceeding.

The motion for substitution was dismissed due to the respondent's unexplained delay in advancing his own claim.

The moving parties (respondents in the main application) brought a motion to dismiss an application to set aside an arbitral award for lack of jurisdiction.

The responding parties (applicants in the main application) sought to set aside the award on the basis of a reasonable apprehension of bias, as the arbitrator had been retained by the moving parties' counsel in an unrelated matter.

The moving parties argued that under Articles 12 and 13 of the Model Law, the responding parties were required to submit their challenge to the arbitrator first, since the arbitration was still extant regarding costs and interest.

The court dismissed the motion, finding that the arbitrator was functus officio regarding the final award on the merits, and the responding parties were entitled to seek recourse under Article 34 of the Model Law.

The plaintiff was wholly successful on an interim injunction motion and sought partial indemnity costs of $79,836.56.

The plaintiff argued costs should be awarded immediately as there might not be a trial, while the defendants argued costs should be reserved to the trial judge.

The court exercised its discretion to order costs in the cause, noting it is the preferable course for interlocutory injunctions, but allowed the parties to return for a costs determination if no trial is held within 18 months.

The plaintiff franchisor requested the immediate scheduling of a motion for injunctive relief on the basis of urgency during the COVID-19 pandemic, which the defendant franchisees opposed.

The court found that the dispute, which centered on unpaid royalty fees and had been ongoing since September 2019, did not meet the criteria for urgent scheduling under the court's COVID-19 notices.

The request for immediate scheduling was denied, and a timetable was set for the motions to be heard at a later date.

Following a summary judgment in favour of the plaintiff franchisors for unpaid royalties, the court determined costs, the terms of the draft order, and post-judgment interest.

Despite a contractual clause providing for substantial indemnity costs, the court exercised its discretion to award a reduced lump sum of $15,000, finding the plaintiffs' claimed costs excessive for a straightforward motion.

The court also formally dismissed the defendants' counterclaim, which lacked merit, and enforced the contractual post-judgment interest rate of 24% per annum, finding no exceptional circumstances to override freedom of contract.

The representative plaintiff brought a class action on behalf of private issuers who operate ServiceOntario outlets, alleging that Ontario breached its duty of good faith and acted unreasonably in exercising its unilateral discretion to set their compensation.

The plaintiff argued that the compensation was inadequate and failed to keep pace with expenses.

The court dismissed the action, finding no evidence of dishonesty or bad faith by Ontario.

The court held that the duty of good faith applies to the performance of the contract, not to ensuring a commercially reasonable outcome, and that Ontario's compensation decisions were not commercially unreasonable in any event.

The alternative claim for unjust enrichment was also dismissed as the contract constituted a juristic reason for the enrichment.

Following dismissal of an application challenging confirmation of a Master’s Report after a lengthy trial, the successful party sought costs on a partial indemnity basis.

The court reviewed the reasonableness of the hours claimed for responding to and preparing for the motion, noting that the same counsel had participated at trial and were already familiar with the evidence.

The court held that the preparation time claimed for the motion was excessive and reduced it by half.

Applying the principle that costs awards must be reasonable and reflect parties’ expectations as to quantum, the court fixed a reduced lump‑sum costs award.

The defendants applied under Rule 54.09(2) to oppose confirmation of a master's report following a 12‑day construction lien trial.

The master had found that the owner repudiated the construction contract, that performance milestones were implicitly amended due to design and structural changes imposed by the owner, and that the contractor was entitled to damages and a construction lien.

On review, the court applied the appellate standard of review requiring an error in principle or palpable and overriding error.

The court held that the master's factual findings regarding the applicable construction plans, scope changes, and amended milestone sequence were supported by the evidence and entitled to deference.

The application to oppose confirmation of the master's report was dismissed.

The plaintiff brought a motion for approval of a proposed class action settlement and class counsel fees.

The class action involved franchisees alleging the franchisor breached its duties of good faith and fair dealing regarding changes to the franchise system.

The court approved the $8,500,000 settlement, finding it fair, reasonable, and in the best interests of the class members.

The court also approved class counsel fees of $2,125,000 plus HST and disbursements, noting the significant risk assumed by class counsel.

Following a declaration that the plaintiffs validly rescinded their franchise agreement, a reference hearing was held to determine compensation under s. 6(6) of the Arthur Wishart Act.

The court awarded compensation for refunded money, inventory, and equipment, but denied compensation for operating losses because the plaintiffs failed to properly record cash transactions and could not substantiate their claimed expenses.

Total compensation of $290,830.72 was ordered.