A.M. Mullins

The plaintiff moved for summary judgment for $81,385.99 for unpaid fish deliveries against the defendants, claiming the individual defendants were personally liable as partners of an unincorporated entity.

The defendants argued the corporate entity Tridente Group Ltd. was the proper contracting party and admitted $22,095.38 was owed by that corporation.

The court found genuine issues requiring a trial regarding the total amount owed and the personal liability of the individual defendants, but granted partial summary judgment for the admitted amount against Tridente Group Ltd.

The applicants sought an order of mandamus to compel the Town of Georgina to approve a fill application and issue a permit.

The court reviewed the requirements for mandamus and the parties' positions on the standard of review and municipal discretion.

Ultimately, the court raised a jurisdictional issue, noting that under section 6(1) of the Judicial Review Procedure Act, applications for relief in the nature of mandamus must generally be brought in the Divisional Court.

The court granted the parties 60 days to make submissions on jurisdiction, failing which the application would be dismissed.

The Minister of Finance, on behalf of the uninsured defendant driver, brought a motion seeking to preclude the co-defendant insurer from relying on a policy exclusion for operating a vehicle without consent.

The moving party argued that because the insurer had previously settled the plaintiff's statutory accident benefits claim, relying on the exclusion in the tort action constituted an abuse of process.

The court dismissed the motion, finding that the accident benefits settlement was explicitly without prejudice and did not constitute an admission of liability that would prevent the insurer from defending the tort claim on its merits.

The defendant developer moved to discharge a construction lien registered by the plaintiff contractor, arguing the lien was registered out of time because the parties had entered into five separate contracts rather than one global contract.

The plaintiff cross-moved for summary judgment, asserting there was only one contract for the entire subdivision project.

Applying principles of contract interpretation, the court found the explicit provisions of the contractual materials clearly established five separate agreements.

Consequently, the plaintiff's lien was registered out of time and was invalid, particularly as it was registered against premises where no work or materials were supplied.

The defendant's motion to discharge the lien and release funds paid into court was granted.

The plaintiff equipment rental company moved for summary judgment against the defendant developer for rental charges and damages related to equipment left on the defendant's site after the general contractor went bankrupt and abandoned the project.

The plaintiff advanced claims of unjust enrichment, quantum meruit, and conversion.

The court dismissed the motion, finding no evidence that the defendant used or benefited from the equipment after the contractor abandoned the site, nor any evidence that the defendant caused damage to the equipment.

The plaintiff sued the defendant appraisers for professional negligence after an arbitrator rejected their real estate appraisal, resulting in the plaintiff receiving a lower buyout price for its property interest.

The defendants brought a third party claim against the plaintiff's former lawyers, alleging the lawyers negligently represented the plaintiff during the arbitration and caused the losses.

The lawyers moved to strike the third party claim, arguing it merely alleged a failure to mitigate and was barred by issue estoppel.

The defendants cross-moved to amend the claim and add another law firm as a third party.

The court struck the portions of the third party claim that amounted to a failure to mitigate the initial loss caused by the appraisal.

However, the court allowed the broader claims regarding the lawyers' negligent representation at the arbitration to proceed, finding they disclosed a tenable cause of action.

The court also granted the defendants leave to add the proposed third parties.

The plaintiff bank brought a motion for summary judgment against the defendant auto collision company for the value of a financed truck.

The individual defendant had financed the truck through the plaintiff but gave it to the corporate defendant to convert into a tow truck and use in its fleet.

The corporate defendant claimed a lien under the Repair and Storage Liens Act for conversion, repair, and storage costs, and subsequently transferred ownership to itself.

The court found the corporate defendant failed to comply with the Act, had no valid lien, and wrongfully converted the vehicle, awarding the plaintiff damages based on the truck's appraised value.

The plaintiff brought a motion for summary judgment against the defendants for breach of fiduciary duty and misrepresentation related to a failed real estate development project.

The plaintiff sought rescission of the contract and recovery of his $500,000 investment.

The defendants argued that the claims were statute-barred by the Limitations Act, 2002, and raised genuine issues regarding the existence of a fiduciary duty, the cause of the project's failure, and the calculation of damages.

The court dismissed the motion for summary judgment, finding that there were multiple genuine issues requiring a trial, including the nature of the relationship between the parties, the state of the defendants' knowledge, and the limitation period.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff in 2010 regarding a failed immigration consulting contract.

The defendants argued they were not properly served and that the claim was not a liquidated demand.

The court found that service was properly effected pursuant to a substituted service order and that the claim for a refund of the contract price was a liquidated demand.

Applying the test to set aside a default judgment, the court held that the defendants failed to move promptly after learning of the judgment and that the plaintiff would suffer significant prejudice due to the death of key witnesses.

The motion was dismissed.

The applicant brought a motion to adjust child and spousal support based on the respondent's actual income, which was higher than previously reported.

The respondent, who is self-employed, had a fluctuating income that dropped significantly in 2015 according to an expert report.

The applicant sought to impute income for 2015 based on a three-year average under section 17(1) of the Federal Child Support Guidelines.

The court ordered support based on the expert's income valuations for 2012-2014, but declined to average the income for 2015, instead using the expert's estimated lower income for that year and suspending spousal support.

Following an 11-day jury trial for a motor vehicle accident, the plaintiff was awarded $3,000 in damages, which was reduced to $500 due to the statutory deductible.

The defendants were successful on the threshold motion.

Both parties sought costs.

The court found divided success and noted the recovery was within Small Claims Court jurisdiction.

The court awarded the plaintiff $9,000 in trial costs and the defendants $2,500 in costs for the threshold motion.

The plaintiff abandoned a motion for directions regarding garnishment and priority issues.

The non-party, Fraser Mason, sought costs of $63,644.52 on a partial indemnity scale for the abandoned motion.

The court found the claimed amount excessive, noting that portions of the costs related to other aspects of the litigation and that both parties had engaged in aggressive litigation tactics.

The court fixed costs at $10,000 payable by the plaintiff to Fraser Mason, but stayed enforcement until Fraser Mason paid outstanding costs awards previously ordered against him.

The applicant, facing numerous charges including conspiracy and trafficking fentanyl, brought a Rowbotham application for state-funded counsel.

While the court found that representation by counsel was essential for a fair trial and that the applicant had exhausted Legal Aid options, it concluded she had not established a lack of financial means.

The court noted that the applicant's spouse earned a significant income and had a legal obligation to support her, which she had not pursued.

The application was dismissed without prejudice to a future application on a better evidentiary basis.

The plaintiff alleged she suffered injuries while using a shoulder press machine at a gym and sued the operator for negligence, claiming the machine was defective and not properly maintained.

A jury found that the plaintiff had signed a membership agreement containing waiver provisions and that the defendant took reasonable steps to bring those provisions to her attention.

The trial judge determined the enforceability and scope of the waiver.

The court held that the membership agreement remained in effect through automatic renewal and that the waiver clearly and unambiguously released the defendant from liability for negligence, including claims arising from use of gym equipment.

The waiver was also sufficient to exclude liability under the Occupiers’ Liability Act.

The claim was barred by the waiver.

The plaintiff brought an action against his sister, the defendant, alleging she misappropriated funds from their late father's estate while acting as his power of attorney.

The plaintiff sought over $800,000, claiming their father lacked capacity to make inter vivos gifts and was subjected to undue influence.

The court found that the father had the requisite capacity to make the gifts, initiated them independently, and was not under the defendant's undue influence.

The court also approved the passing of accounts prepared by an independent accountant, dismissing the plaintiff's claims for damages and ordering him to pay $150,000 in costs.