Benoit M. Duchesne

The moving parties sought summary judgment dismissing a counterclaim alleging misrepresentation, breach of contract, and intentional interference with economic relations on the basis that it was barred by the two‑year limitation period under the Limitations Act, 2002.

The counterclaim asserted claims virtually identical to those raised by the respondent in an earlier action that had been dismissed for lack of jurisdiction following enforcement of a forum selection clause by the Supreme Court of Canada.

The court held that the Limitations Act, 2002 is exhaustive and does not permit courts to decline to apply statutory limitation periods based on special circumstances.

As the claims were discovered years earlier and no statutory exception applied, the counterclaim was statute‑barred.

The court granted summary judgment striking the counterclaim and ordered the respondent to pay funds into court pending resolution of an indemnity claim, failing which judgment would issue.

The defendant brought a motion seeking a declaration that the plaintiff had waived solicitor-client privilege with his former lawyers after filing affidavit evidence blaming them for delay in prosecuting the action.

The affidavit asserted reliance on legal advice, instructions to counsel to advance the action, and lack of knowledge of a court-ordered timetable requiring the matter to be set down for trial.

The court held that by raising communications with counsel and his state of mind to explain delay in a motion to set aside a dismissal under Rule 48.14, the plaintiff placed those communications directly in issue.

Applying principles of fairness and implied waiver, the court concluded that privilege had been waived in relation to specified communications and instructions concerning advancement of the action.

The former solicitors were ordered to re-attend for examination under Rule 39.03 to answer questions relating to those issues.

The moving party brought a motion seeking disclosure and examination of the responding party’s former lawyers on the basis that the responding party had waived solicitor-client privilege through statements contained in an affidavit.

The court held that the affidavit placed the legal advice and conduct of former counsel in issue, thereby constituting a waiver of solicitor-client privilege and professional secrecy concerning communications and instructions relating to the progress of the action.

The court ordered that the former lawyers attend for further examination under Rule 39.03 to answer questions within the scope of the waiver.

The motion was granted and directions were provided regarding the scope of permissible questioning.

Two equal shareholder brothers in a family construction group became deadlocked after one withdrew from active management due to illness and sought to realize the value of his shares.

The court found a fundamental and irreparable deadlock in the management of the corporations under the oppression and winding‑up provisions of corporate statutes.

Competing valuation reports were rejected in part, with the court determining fair value by adjusting one report and rejecting assumptions that the operating company lacked viability.

The court ordered a forced buy‑out requiring the remaining shareholder to purchase the other’s shares at a court‑determined fair value.

Payment terms were structured to balance the retiring shareholder’s need for compensation with the company’s operational viability.

The defendants moved for a temporary stay of an Ontario action on the basis that identical proceedings were underway in New Brunswick.

The action concerned allegations that a former employee embezzled funds and used them to purchase and improve real property, including property later acquired in another province.

The court considered the test for temporary stays where parallel proceedings exist in different jurisdictions, including whether a stay would prevent duplication of resources and whether it would cause injustice to the resisting party.

The court held that the defendants had not demonstrated that a stay would avoid unnecessary duplication, particularly where the plaintiffs did not intend to pursue the foreign action beyond preserving a certificate of pending litigation.

Granting the stay would effectively render the Ontario proceeding moot and deprive the plaintiffs of their choice of forum.

The motion was dismissed and the defendants were granted time to file a defence.

The applicant sought declarations regarding its contractual rights to historical interprovincial chicken supply quotas purchased from another processor.

The respondent brought a preliminary objection arguing the court lacked jurisdiction and the matter should be determined by the Chicken Farmers of Ontario (CFO) under its comprehensive regulatory scheme.

The court agreed, finding that the substance of the dispute concerned quota allocation, which falls within the exclusive jurisdiction of the CFO and its administrative appeal process.

The application was dismissed as premature.

Following the adjournment of a civil trial after the defendants sought leave to file a late expert report on the eve of trial, the plaintiff sought recovery of costs thrown away.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including success, proportionality, reasonable expectations of the losing party, and the principle of indemnity.

The court held that the defendants' conduct in serving the expert report immediately before trial justified an award of costs on a complete indemnity basis for wasted preparation.

However, the court applied a 50% reduction to certain trial preparation time to reflect work that would remain useful for the future trial and adjusted other disputed items.

Costs thrown away were fixed at $27,951 plus HST and disbursements.

Following an unsuccessful injunction application arising from a shareholder dispute within a closely‑held corporation, the court addressed costs.

The litigation stemmed from a contested annual general meeting and banking resolution allegedly used to remove an equal shareholder’s rights.

The court found the proceedings were effectively directed by a non‑party shareholder who sought to advance his personal interests through the corporation.

Exercising its inherent jurisdiction, the court ordered that shareholder personally liable for costs payable to both the defendant financial institution and the successful intervenor shareholder, awarding substantial indemnity costs in favour of the intervenor.

A corporate shareholder and director sought leave to be added as a party to litigation involving a company and its bank concerning enforcement of a banking resolution adopted at an annual general meeting.

The court considered Rule 13.01 of the Rules of Civil Procedure and found the proposed party had a direct personal and corporate interest in the proceeding and could be adversely affected by the outcome.

The court determined that the annual meeting lacked quorum and that the resulting corporate resolutions, including a banking resolution altering signing authority, were invalid.

The court dismissed the company’s injunction motion seeking to enforce the resolution and granted relief requiring disclosure of financial information to the added party under oppression principles in the Canada Business Corporations Act.

The Court considered whether defendants could seek dismissal under Ontario Rule 21.01(3)(a) based on arbitration and forum selection clauses after delivering a statement of defence.

It held that a defence pleading the foreign forum clause does not itself bar a subsequent Rule 21 motion, provided the motion is brought promptly.

Applying the strong-cause framework for displacing contractual forum clauses, the Court found no basis to refuse enforcement.

The appeal was dismissed with costs.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondents were awarded costs on a partial indemnity basis.

The League respondents were awarded $15,000, the City of Ottawa was awarded $5,000, and Miles Wolff was awarded $5,000, all inclusive of disbursements and taxes.

The appellants, owners of a professional baseball team, sued the Can-Am League, its principals, and the City of Ottawa in Ontario after the League terminated their membership and drew down a letter of credit.

The agreements between the parties contained choice of forum and arbitration clauses designating North Carolina.

The defendants successfully moved to dismiss the action for lack of jurisdiction.

On appeal, the appellants argued the defendants attorned to Ontario's jurisdiction by filing a statement of defence, and that fundamental breach precluded reliance on the clauses.

The Court of Appeal dismissed the appeal, holding that the appellants failed to show strong cause to displace the choice of forum clause, and that attornment does not prevent a court from declining to exercise its jurisdiction.