Brendan Wong

The appellants appealed two awards from a sole arbitrator in a commercial arbitration regarding a failed real estate project.

The first award granted partial summary judgment dismissing claims related to loan advances as time-barred.

The second award increased the amount of security for costs.

The Superior Court held that the standard of review for commercial arbitrations remains reasonableness under Sattva, as Vavilov did not overrule it in this context.

The court found the arbitrator's decisions on both the limitation period and the security for costs were reasonable and correct, and dismissed the appeals.

The plaintiff in a subrogated action scheduled discoveries and proposed an independent insurance adjuster as its corporate representative.

Days before the scheduled discoveries, the defendants objected and insisted on examining the plaintiff's sole director.

The plaintiff rejected alternate proposals and unilaterally cancelled the discoveries.

Both parties brought motions for costs thrown away.

The court dismissed both the motion and cross-motions, finding that while the defendants should have raised the issue earlier, the plaintiff acted unreasonably in cancelling the discoveries.

The applicants, former officers of the respondent corporation, brought applications for advance funding of their legal fees to defend an action alleging complex commercial fraud.

The applications were brought pursuant to the corporation's Unanimous Shareholders Agreement and section 124 of the Canada Business Corporations Act.

The court applied the strong prima facie case test to determine if advance funding should be denied due to bad faith.

The court dismissed the application of the former CEO, finding a strong prima facie case of fraud had been established against him in a related Mareva injunction motion.

The court granted the application of the former COO, as the evidence did not establish a strong prima facie case of fraud against him.

The plaintiff brought a motion to continue an ex parte Mareva injunction against the defendants, alleging a fraudulent scheme where a former employee used the plaintiff's resources to manufacture parts for third parties and kept the profits.

The court found a strong prima facie case and a serious risk of asset dissipation against the employee's spouse, continuing the injunction against her, the employee, and their company.

However, the court found insufficient evidence of knowing participation or risk of dissipation against a third-party contractor, MTech, and dismissed the motion to continue the injunction against it.

The plaintiff landlord claimed the defendant tenant was overholding after the expiry of a commercial lease because a subtenant left a functional computer server containing client data on the premises.

The landlord sought overholding rent.

The court dismissed the action, finding that leaving a single piece of equipment did not constitute use and occupation of the premises, especially since the tenant had no access to the building and no business was being conducted there.

The franchisor, Mr. Lube, brought an application to enforce a sublease provision requiring the franchisee to pay an additional 2% rent based on gross sales.

The franchisee brought a cross-application seeking a declaration that it was not required to pay the amount, arguing it was a disguised franchise fee prohibited by a prior agreement and was not properly disclosed under the Arthur Wishart Act.

The court found that the 2% rent was clearly disclosed in the franchise disclosure document and the executed sublease.

The court rejected the franchisee's argument of non est factum, noting the franchisee's principal failed to read the documents.

The court also held that the percentage rent was not a franchise fee.

The franchisor's application was granted and the franchisee's application was dismissed.

The franchisor, Mr. Lube, brought an application to enforce a sublease provision requiring the franchisee to pay an additional 2% rent based on gross sales.

The franchisee brought a cross-application seeking a declaration that it was not required to pay the amount, arguing it was a disguised franchise fee prohibited by a prior agreement and was not properly disclosed under the Arthur Wishart Act.

The court found that the 2% rent was clearly disclosed in the franchise disclosure document and the executed sublease.

The court rejected the franchisee's argument of non est factum, noting the franchisee's principal failed to read the documents.

The court also held that the percentage rent was not a franchise fee.

The franchisor's application was granted and the franchisee's application was dismissed.

The defendants moved to dismiss an action for unpaid electrical services on the basis that the named plaintiff lacked legal capacity because the corporation identified in the claim did not legally exist.

The court considered whether the misidentification constituted a misnomer under the Limitations Act, 2002 and the Rules of Civil Procedure.

Applying the test for misnomer, the court held that the defendants clearly understood who the contracting party was and that the action concerned invoices issued under the trade name used by the corporation.

The court permitted amendment of the plaintiff’s name to the correct corporate entity notwithstanding the expired limitation period and found any prejudice could be addressed by costs.

The court also ordered the action transferred from Brampton to Toronto and set a litigation timetable.