Brett Hodgins

The plaintiffs brought an action seeking declarations that the defendant, Ashcroft Homes – Eastboro Inc., was not entitled to terminate their agreements of purchase and sale for residential homes.

The plaintiffs argued that the early termination condition (Condition 2 of Schedule U) was contrary to the Tarion Addendum, was invoked untimely, or that Ashcroft breached its obligation to take commercially reasonable steps to satisfy the condition.

The court found that Condition 2 was consistent with the Tarion Addendum, Ashcroft terminated the agreements in a timely manner, and Ashcroft did take all commercially reasonable steps to satisfy the condition.

The action was dismissed.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiff's action, arguing that no contract was formed as alleged by the plaintiff, or alternatively, that the claim was barred by the Limitations Act, 2002.

The plaintiff sought summary judgment in his favour, asserting a binding agreement for shares or a portion of sale proceeds.

The court granted the defendants' motion, finding that the parties were never bound to a legally enforceable agreement beyond the initial employment contract, which contained an "entire agreement" clause.

The court concluded there was no "meeting of the minds" on subsequent compensation arrangements and that the limitations period issue was moot given the lack of a discoverable claim.

This ruling addresses two mid-trial motions: one by the defendant, Ashcroft Homes – Eastboro Inc., for leave to introduce information related to late-delivered undertakings, and another by the plaintiffs for leave to amend their statement of claim.

The court granted Ashcroft's motion, finding a reasonable explanation for the delay and that any prejudice to the plaintiffs could be compensated by an adjournment and costs.

The court also granted the plaintiffs' motion to amend their statement of claim, including a proposed amendment regarding non-compliance with Schedule "A" of the agreements, determining it did not introduce a new cause of action and thus no non-compensable prejudice due to limitation periods.

This is a costs endorsement following a successful motion by Infinitus (defendant) to stay an action brought by Justmark (plaintiff) due to an arbitration clause.

The court also addressed costs for earlier motions dismissed by consent, where Infinitus Innovations (a related entity) was involved.

The court fixed partial indemnity costs for Infinitus Innovations for the January motions at $35,000 and for Infinitus for the stay motion at $19,500.

The court rejected Justmark's arguments to defer costs to arbitration or for substantial indemnity costs, emphasizing that substantial indemnity is reserved for rare cases of sanctionable behavior.

The defendants brought a motion to stay the plaintiff's breach of contract action on the basis of an arbitration clause requiring disputes to be arbitrated in Hong Kong.

The plaintiff argued the arbitration clause was inoperative because the defendants had waived their right to arbitrate through uncooperative conduct.

The court found no waiver, as there was no evidence the defendants had an unequivocal and conscious intention to abandon their right to arbitrate.

The action was stayed and the parties were referred to arbitration.

The plaintiff brought a motion for summary judgment seeking payment for roofing work.

The defendant alleged deficiencies in the work and withheld payment, citing contractual provisions allowing for such holdbacks.

The court found that despite some credibility issues with the defendant's assertions, there remained a genuine issue requiring a trial regarding the existence and cost of the alleged deficiencies.

Consequently, the motion for summary judgment was dismissed.

The Applicant, successful in an oppression application under the Canada Business Corporations Act, sought substantial indemnity costs after recovering a modest $14,555.34.

The court assessed the Applicant's costs outline, which included two offers to settle.

The first offer was deemed invalid for costs consequences under Rule 49.11 as it was not made to all jointly and severally liable defendants and was not unilaterally controllable.

The second offer, while made to both respondents, was structured in a way that required an ad hoc assessment of costs, making it difficult to determine if the result was better than the offer.

Emphasizing proportionality given the modest recovery and the significant costs incurred by the Applicant (including multiple lawyers), the court awarded a proportionate sum of $20,000, all inclusive, payable jointly and severally by the Respondents, significantly less than the Applicant's claim.

The applicants sought a declaration that their use of a portion of the respondent's adjacent land for parking, a storage shed, and gardens was permitted under a 1972 easement granting a right of way for 'general recreation'.

Alternatively, they claimed a prescriptive easement or adverse possession of the land under the shed.

The court found that the installation of fixtures and routine parking did not fall within the ordinary meaning of 'general recreation' and were not reasonably necessary ancillary rights.

The claims for prescriptive easement and adverse possession were also dismissed due to insufficient evidence of continuous use and intention to exclude the true owner for the requisite periods prior to the property's conversion to the Land Titles system.

The plaintiff, 11123688 Canada Limited o/a Onion Auto Centre, sought a mandatory interlocutory order to regain possession of business premises from the defendants, who had unilaterally changed the locks.

The motion was brought in an intended action without a formal statement of claim.

The court dismissed the motion, finding the evidentiary record insufficient to establish irreparable harm or to properly weigh the balance of convenience under the American Cyanamid test.

The court noted the absence of required undertakings and detailed financial evidence.

An order was made for the preservation and return of the plaintiff's personal property.

The applicant, a minority shareholder in a closely-held corporation operating a minor hockey tournament, sought an oppression remedy against the two other shareholders.

The respondents, dissatisfied with the applicant's performance, attempted to force him to sell his shares and subsequently dissolved the corporation to exclude him while continuing the business through a new entity.

The court found that the respondents breached their fiduciary duties to the corporation and acted oppressively by dissolving the corporation for the improper purpose of eliminating the applicant.

The court awarded the applicant special damages based on the agreed valuation formula and general damages for the oppressive conduct.

The defendants brought a motion to enforce a binding settlement agreement reached on May 17, 2019, to resolve an oppression remedy and wrongful dismissal claim.

The plaintiff opposed, arguing the defendants unilaterally modified a term regarding the share acquisition structure and failed to act in good faith.

The court found a legally binding agreement existed, which explicitly granted the defendants the prerogative to consider an alternative share acquisition structure and agree to it only if persuaded it was tax advantageous or neutral to them.

The court determined that the defendants had fulfilled their obligation by consulting their accountant and deciding against the alternative structure.

The court granted the defendants' motion to enforce the settlement and dismissed the plaintiff's cross-motion, concluding the settlement was reasonable and just.

The appellants appealed a trial judgment enforcing a construction lien against them.

The trial judge had applied the 'special circumstances' doctrine to extend the limitation period to add a tenant corporation as a defendant, and pierced the corporate veil to find the landlord corporation was an 'owner' under the Construction Lien Act due to common ownership.

The Divisional Court allowed the appeal, holding that the 'special circumstances' doctrine does not apply to the mandatory statutory deadlines in the Construction Lien Act, and that the corporate veil cannot be pierced absent conduct akin to fraud.

The applicant sought a consent order and dismissal of an application without costs, following a mediation and minutes of settlement.

The motion record included a draft order with unusual provisions, such as fund transfers, property charges, life insurance beneficiary designation, and return of items.

The court noted the involvement of the Public Guardian and Trustee and the application being brought under the Substitute Decisions Act, 1992, suggesting the respondent might be a party under disability.

The initial motion record was deemed incomplete, lacking necessary information and relying on unsworn correspondence.

The court declined to grant the order and instructed counsel to prepare an amended motion record and arrange an in-court hearing for further clarification.

The plaintiff, Pryers Construction Ltd., sought to enforce a construction lien for $34,601.66 against MVMB Holdings Inc., Scott Birnie, and Riverside Ford Sales Limited for renovation work.

Key issues included the applicability of the old Construction Lien Act versus the new Construction Act, the addition of Riverside as a party despite the Limitations Act, and the personal liability of Scott Birnie.

The court found the old Construction Lien Act applied, allowed the addition of Riverside as a party under the doctrine of special circumstances, and determined that both corporate defendants were "owners" under the Act.

However, the court declined to pierce the corporate veil to hold Scott Birnie personally liable.

Judgment was granted in favour of the plaintiff against the corporate defendants for the claimed amount.

The Ottawa Convention Centre Corporation (OCCC) sued treefort Hip Productions Inc. (treefort) for an unpaid balance from the 2015 Ottawa Wine and Food Festival, and treefort counterclaimed, alleging OCCC breached long-term contractual obligations regarding hosting, scheduling, and booking protection.

The court found that the contractual relationship was limited to annual license agreements, which contained entire agreement clauses.

OCCC's repeated warnings that dates were not guaranteed, and the asset purchase agreement's terms, negated treefort's claims of implied long-term covenants.

The court dismissed treefort's counterclaim and granted OCCC judgment for the outstanding balance plus interest.

The moving party sought leave to appeal to the Divisional Court from a motion judge’s dismissal of its summary judgment motion in a commercial dispute arising from an aborted generator sale.

The underlying action alleged breach of contract, misrepresentation, and unjust enrichment against corporate defendants involved in the project.

Applying Rule 62.02 of the Rules of Civil Procedure, the court held that leave to appeal should only be granted in strict circumstances, requiring either a conflicting decision on a matter of principle or serious doubt about the correctness of the order combined with issues of public importance.

The court found that the motion judge’s decision involved factual disputes, credibility assessments, and discretionary determinations properly reserved for trial.

The moving party failed to demonstrate a conflicting decision, a serious doubt about correctness, or broader issues warranting appellate review.