Andrew Ferguson

The defendants brought a motion for summary judgment to dismiss the plaintiff's action for breach of contract, breach of trust, unjust enrichment, and breach of the Canada Business Corporations Act on the basis that the claims were statute-barred.

The plaintiff argued that an agreement reached in 2016 extended the limitation period and that a trial was necessary to resolve factual disputes.

The court found that there was no genuine issue requiring a trial, as the material facts regarding discoverability were not in dispute.

The court held that the plaintiff failed to act with reasonable diligence to discover its claims and that the action, commenced nearly four years after the work was completed, was barred by the two-year limitation period under the Limitations Act, 2002.

The motion was granted and the plaintiff's claims were dismissed.

The defendants brought a motion for leave to amend their statement of defence and counterclaim in an action by the plaintiff bank to enforce loan agreements.

The proposed amendments sought to plead that all defendants suffered damages, add a claim for the tort of deceit, and expand pleadings regarding breach of honesty and good faith.

The plaintiff opposed, arguing the amendments were statute-barred, an abuse of process, and untenable at law.

The court granted leave for all amendments, finding they either particularized existing claims or were based on newly discovered facts with a reasonable explanation for the delay.

The defendants were ordered to pay $1,050 plus HST for the costs of the plaintiff preparing an amended reply.

The defendants brought a motion to stay a construction lien action, arguing it was commenced without proper corporate authority.

The plaintiff corporation's Unanimous Shareholders Agreement required a three-director board, but the action was authorized by a single director.

The court found that the indoor management rule did not apply because the dispute involved internal corporate governance issues rather than a simple collection matter.

The court granted the motion and stayed the action until a valid resolution is passed by a properly appointed board of directors.

DCM Erectors Inc. brought a motion to stay enforcement of an unopposed judgment, remove opposing counsel for conflict of interest, and set aside the judgment in a complex construction lien dispute.

The Master dismissed the requests to remove counsel and set aside the judgment, finding no impropriety in the joint representation of sub-trades and the surety.

However, the Master granted a stay of enforcement of the personal judgment against DCM, finding it would be unjust to allow the surety to enforce assigned sub-trade debts against DCM while simultaneously resisting payment to DCM on its own lien claim.

The plaintiffs brought a motion seeking leave to examine two non-party witnesses and to amend the claim to remove one of the plaintiffs in his personal capacity.

The court dismissed the request to examine the non-parties, finding it premature as the plaintiffs had not yet exhausted the discovery process through a refusals motion.

The court granted the request to remove the individual plaintiff on terms, including that he pay $2,000 in costs to one of the defendants and remain liable for costs awarded against the unincorporated plaintiffs.