Blair W.M. Bowen

This decision resolves a dispute over the distribution of net proceeds from the sale of the Boundary Lake Property, an asset of Maple Pond Farm Limited.

The plaintiff, Gordon Vellenga, sought equal division of the proceeds between himself and Peter Boersma, the two shareholders.

The defendants, including Weijs Investment Corp., sought priority reimbursement for various claims before any distribution.

The court found most of the defendants’ claims barred by res judicata, issue estoppel, or limitations, except for property taxes paid on the property.

The court ordered equal division of the proceeds, with a credit to Weijs Investment for property taxes paid.

The Court of Appeal for Ontario allowed the appeal in part, finding that the trial judge erred in failing to address the appellants’ limitations defence to the “TCS Opportunities” claim.

The appellate court held that the TCS Opportunities claim was a new cause of action, added outside the limitation period, and was therefore statute-barred.

The damages award was reduced accordingly.

The court rejected the appellants’ other ground of appeal regarding the drawing of an adverse inference about source code production, finding no error in the trial judge’s approach.

Talon International Inc. brought a motion under Rule 49.09 to enforce settlements it claimed to have reached with five parties regarding aborted purchases and sales of condominium units.

The court found that there was no meeting of the minds and thus no settlement, dismissing Talon's motion.

The matter is to proceed on the merits, and no costs were awarded due to the miscommunication and counsel's emergency absence.

The applicant, Karrilyn Wilcox, sought to appoint an arbitrator based on a 2017 letter of intent with the respondent, Loredana Abittan.

The court stayed Ms. Wilcox's application under section 106 of the Courts of Justice Act until she pays an outstanding costs order from November 2020, which arose from a previous arbitration and subsequent court enforcement.

The court rejected her set-off argument, emphasizing the importance of complying with court orders and preventing abuse of process.

The applicant successfully applied to enforce an arbitration award and sought costs on a partial indemnity basis.

The self-represented respondent opposed the costs and sought her own costs, raising unlitigated grievances regarding the underlying business dispute.

The court found the applicant's costs claim of $4,968 to be reasonable and proportionate, rejecting the respondent's attempt to re-litigate the merits.

Costs were awarded to the applicant in the amount of $4,968.

The applicant sought to enforce an arbitrator's award declaring a Letter of Intent binding and awarding her approximately $46,000 in costs.

The respondent opposed the enforcement of the costs award, arguing under s. 50(7) of the Arbitration Act that the arbitrator lacked jurisdiction to award costs based on the terms of the Letter of Intent.

The court held that s. 50(7) is a narrow provision that does not permit a review of the merits of an arbitral award or the arbitrator's interpretation of the agreement.

The application to enforce the arbitration award was allowed.

The respondent and the appellant were equal shareholders and directors of a corporation that operated a dairy farm.

The corporation sold its milk quota, and the appellant director used the net proceeds to purchase a property registered in the name of a company owned by his wife, characterizing the transaction as a loan.

The respondent sought an oppression remedy, and the trial judge declared the property was held in constructive trust for the corporation due to the appellant's breach of fiduciary duty.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the unauthorized transfer of corporate funds constituted oppressive conduct and that a constructive trust was the appropriate remedy.

Following the dismissal of both the plaintiff's action and the defendants' counterclaim, the parties made written submissions on costs.

The defendants sought partial indemnity costs of $69,195.59, while the plaintiff argued she was entitled to costs due to the defendants' bad faith and breach of a standstill agreement.

The court noted that although the plaintiff succeeded on the issue of a joint family venture, the action remained a civil proceeding, making the Family Law Rules inapplicable.

Finding divided success but slightly more success for the defendants, and considering the defendants' conduct, the court awarded the defendants costs fixed at $30,000 on a partial indemnity basis.

The plaintiff sought monetary relief based on unjust enrichment arising from a joint family venture with the defendant, David Brathwaite, and his corporations.

The court found that a joint family venture existed and the plaintiff's claim was not statute-barred due to ongoing reconciliation efforts.

However, the plaintiff failed to provide sufficient evidence to prove a disproportionate accumulation of wealth by the defendant linked to her contributions, or to quantify the alleged enrichment and deprivation.

Consequently, the plaintiff's claim for unjust enrichment was dismissed, as was the defendant's counterclaim.

This case conference endorsement addresses a plaintiff's extensive motion, which the defendants argued largely required leave under Rule 48.04(1) of the Rules of Civil Procedure.

The court, without ruling on the merits of the leave requirement, found the two-hour hearing allocation unrealistic for the motion as framed.

By consent, the scope of the plaintiff's motion was limited to specific paragraphs concerning particulars and outstanding undertakings, without prejudice to the remaining relief which may still require leave.

The court also noted the possibility of a future case conference before trial.

Following the defendant's successful motion for summary judgment, the court determined the quantum of costs.

The defendant sought approximately $331,500 on a partial and substantial indemnity basis, relying on a favourable offer to settle.

The plaintiff argued for $210,000.

The court found the matter complex but noted excessive hourly rates for junior counsel and insufficient delegation.

Costs were fixed at $240,000 all-inclusive.

This costs endorsement followed a plaintiff's motion to amend her Statement of Claim at the outset of trial, which resulted in an adjournment.

The defendants sought substantial indemnity costs for costs thrown away and for the motion to amend.

The court considered the principles for compensatory cost awards on motions to amend, rejecting the plaintiff's arguments regarding prematurity, unsupported impecuniosity, and alleged inequitable conduct by the defendants.

While finding no substantive grounds to deny costs, the court adjusted the defendants' requested amounts due to identified duplication of effort and time not truly "thrown away," ultimately awarding the defendants $22,500.00 on a substantial indemnity basis for costs thrown away and $1,500.00 on a partial indemnity basis for the motion to amend.

The defendant, Ontario Electricity Financial Corporation (OEFC), moved for summary judgment to dismiss the plaintiff, The Power Limited Partnership's (PLP), claims of negligent misrepresentation, dishonest contract performance, and breach of a 2005 power purchase agreement (PPA).

The claims stemmed from the negotiation and execution of a 1999 PPA and a subsequent 2005 PPA, particularly concerning whether Order in Council (OIC) approval was required for the 1999 PPA and alleged concealment of its execution.

The court granted summary judgment, dismissing all claims.

It found no contractual obligation to support the bad faith claim, no deliberate dishonesty or negligence in misrepresentation, and that the 2005 PPA's entire agreement clause excluded prior representations.

Furthermore, the court determined that OIC approval was legally required for the 1999 PPA and that the claims were statute-barred by the applicable limitation periods.

The claims related to the 2005 PPA regarding occasional payment rates, capacity caps, and monthly targets were also dismissed based on clear contractual terms and lack of grounds for rectification.

During the trial, the plaintiff brought a motion for leave to amend her Statement of Claim after the trial judge noted her pleadings contained irreconcilable theories regarding her interest in two corporations.

The plaintiff sought to amend her claim to assert unjust enrichment and constructive trust arising from a joint family venture with the individual defendant, while abandoning claims of legal ownership.

The court granted leave to amend the pleadings to advance the unjust enrichment and constructive trust claims, finding that such claims may not have vested in her trustee in bankruptcy if they crystallized after her discharge.

However, the court denied leave to amend claims asserting legal or beneficial ownership, as those would have vested in the trustee upon her voluntary assignment in bankruptcy.

The appellant developer earned municipal development credits and sold the land with an agreement that the purchaser would pay the appellant the credits once established.

The land was subsequently sold twice without this covenant, eventually to the respondent, who developed the property and received the credits.

The appellant sued the respondent for unjust enrichment.

The Court of Appeal dismissed the appeal, finding that the respondent was not enriched because it had paid a premium for the property in expectation of receiving the credits.

Following the dismissal of two related civil actions, the successful defendants sought a costs order requiring the plaintiffs’ counsel personally to pay a portion of the trial costs associated with calling 22 witnesses.

The defendants argued that the evidence of those witnesses was inadmissible under the parol evidence rule and that counsel’s decision to call them wasted approximately ten days of trial time.

The court considered Rule 57.07 of the Rules of Civil Procedure and the court’s inherent jurisdiction to award costs against a solicitor.

The judge held that such orders should be made only in rare circumstances and typically require conduct approaching recklessness, abuse of process, or bad faith.

The court concluded that counsel’s decision to lead the evidence was not reckless or abusive and declined to order costs against counsel personally.

The appellants appealed a decision of the motion judge granting partial summary judgment to the respondents.

The Court of Appeal found no error in the motion judge's decision and dismissed the appeal, awarding costs of $5,000 to the respondents.

The appellant appealed the dismissal of its action for lost profits and expenses against the respondent, who supplied a wood finishing product.

The trial judge had dismissed the action, finding the appellant failed to prove the product was defective, caused the delamination, or that damages were proven.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence.