Andrew Ottaway

The plaintiff, Enercare, brought a motion to strike the defendant Grand HVAC's counterclaim under Rule 21.01(1)(b) for failing to disclose a reasonable cause of action.

The counterclaim alleged breach of contract and conversion regarding water heaters Grand HVAC claimed to have purchased from Enercare, and sought relief on behalf of customers.

The court granted the motion, finding the breach of contract and conversion claims lacked necessary material facts, but granted leave to amend.

Claims seeking relief on behalf of third-party customers were struck without leave to amend.

The plaintiff brought a motion for summary judgment to enforce a settlement agreement against the defendant.

The agreement required the defendant to pay $30,000, failing which he would consent to judgment for liquidated damages of $60,000.

The defendant paid $10,000 but failed to pay the balance.

The court found that the liquidated damages clause was not an unenforceable penalty clause, as the amount was not extravagant or unconscionable compared to the original $200,000 claim.

The court granted summary judgment, holding the defendant liable for $60,000.

The plaintiffs brought a motion for summary judgment in their direct action against the defendant insurer under s. 132(1) of the Insurance Act.

The plaintiffs had previously obtained a consent judgment against their tenant, who negligently caused a fire while repairing his automobile in the attached garage.

The defendant insurer denied coverage under the tenant's policy, relying on a motorized vehicle exclusion.

The court found that the omnibus exclusions, including the motorized vehicle exclusion, applied to the Tenants Legal Liability coverage.

The court also held that the tenant's maintenance of his vehicle constituted 'use' of a motorized vehicle and that there was an unbroken chain of causation between the maintenance and the fire.

The plaintiffs' claim was dismissed.

The defendant was successful on a motion for particulars and sought costs of $13,511.02.

The plaintiff argued for no costs or $1,500, noting the excessive time spent by the defendant's counsel.

The court considered the defendant's offer to settle, the principle of proportionality, and the factors under Rule 57.01(1) of the Rules of Civil Procedure.

The court fixed costs payable to the defendant at $8,000 all-inclusive.

The defendants sought a stay of an action under s. 7 of the Arbitration Act, 1991 based on an arbitration clause in a shareholders’ agreement relating to a restaurant venture.

The plaintiff alleged fraudulent misrepresentation inducing him to enter the agreement, breach of fiduciary duties, and oppressive conduct.

The court held that the misrepresentation and fiduciary duty claims were tort-based and did not rely on the shareholders’ agreement, placing them outside the arbitration clause.

Although the oppression allegations relied on contractual obligations and fell within the clause, the court declined to order a partial stay because most claims were non-arbitrable and separation would create duplicative proceedings.

The motion for a stay was therefore dismissed.