Christopher M. Stanek

The applicants, two brothers involved in a family drywall business, sought interlocutory injunctive relief against their brother and the corporation.

They sought to preserve the business assets, the proceeds of sale of various properties allegedly held in trust, and to be reinstated as employees.

The court granted the injunctions preserving the business and the property proceeds, finding a serious issue to be tried regarding beneficial ownership, irreparable harm, and that the balance of convenience favoured preservation.

However, the court declined to grant a mandatory injunction reinstating the applicants as employees, as they failed to demonstrate a strong prima facie case.

The court also permitted the applicants to file a required undertaking as to damages within 7 days.

The applicant brought an application within an ongoing oppression remedy proceeding seeking repayment of a shareholder loan.

The applicant sought to impose enterprise liability on related companies and personal liability on the estate of his former business partner.

The court found that the former partner had engaged in oppressive conduct by diverting corporate funds for personal benefit, defeating the applicant's reasonable expectations.

The court held the estate personally liable for the immediate repayment of $2,421,300 of the shareholder loan, but declined to impose enterprise liability on the related companies or personal liability on the estate trustee.

The defendant, Pacific Mortgage Group Inc., brought a motion seeking leave to introduce a late-served expert report from Duff & Phelps in a claim on a promissory note and counterclaim alleging undisclosed liabilities.

The court had previously issued an order precluding the service of expert reports due to the defendant's "cavalier and unacceptable" approach to compliance with the Rules of Civil Procedure.

The motion was opposed by the plaintiff and other parties, who argued that admitting the report would cause prejudice and further delay.

The court applied the three-part test from Gardner v Hann, considering the reason for non-compliance, its effects, and fairness in the circumstances.

Finding no adequate explanation for the delay, significant prejudice to the opposing parties, and a disregard for court orders, the court denied leave to introduce the expert report.

The corporate defendant brought a motion to adjourn the trial date after its counsel was removed from the record shortly before trial.

The plaintiff and defendants by counterclaim strongly opposed the adjournment, arguing the defendant's principal had delayed in retaining new counsel.

The pre-trial judge determined she had jurisdiction to hear the adjournment request under Rule 50.07.

Despite finding the defendant's principal largely responsible for the delay, the court reluctantly granted the adjournment to allow the unrepresented corporation to retain counsel, noting this was the first fixed trial date and there was no evidence of prejudice.

The adjournment was granted on peremptory terms with costs thrown away awarded to the opposing parties.

The parties sought a consent order regarding funds paid into court to vacate a construction lien claim.

The Divisional Court granted the order, directing that $17,056.00 be paid out to the respondent in full satisfaction of the Master's Report and all subsequent proceedings, with the balance and accrued interest paid to the appellant.

The appellant appealed a decision of the Motions Judge that refused to confirm a Master's report regarding a construction contract dispute.

The Master had found an oral contract existed for construction costs but rejected the respondent's claim for a 20% management fee.

The Motions Judge set aside the report, finding no contract existed, and awarded the respondent the management fee on a quantum meruit basis.

The Divisional Court allowed the appeal, holding that the Motions Judge erred in law by treating the motion as a de novo hearing and failing to defer to the Master's factual findings.

The Master's report was confirmed.

The appellants appealed an order directing the liquidation of Tarn Financial Corporation under the oppression provisions of the Business Corporations Act.

The application judge found that the appellant had engaged in self-dealing and diverted corporate funds for personal benefit, and ordered liquidation as the only viable remedy to separate the parties.

On appeal, the appellants argued the judge should have ordered a forced buyout instead.

The Divisional Court dismissed the appeal, holding that the application judge made no palpable and overriding error and properly exercised his discretion, as a forced buyout would leave the appellant in control of the valuation process and fail to ensure fair market value.

The plaintiff brought a motion for a status hearing under Rule 48.14 to set a timetable for the remaining steps in an action commenced in 2010.

The defendant opposed the motion and sought dismissal for delay.

The court found that the delay was largely attributable to the plaintiff's former counsel, who failed to advance the action and refused to release the file due to a solicitor's lien.

The court held that the plaintiff had not abandoned the action and should not be penalized for counsel's inaction.

Furthermore, the court found no actual prejudice to the defendant, despite the deteriorating health of its key witness and the destruction of some documents.

The motion was granted, allowing the action to proceed on its merits.

Following a trial of an oppression application and breach of contract action regarding a real estate development project, the parties made written submissions on costs.

The court found that neither party achieved substantial success, as the applicant failed to prove damages for failure to fund the project, while the respondents were found to have acted oppressively.

Given the divided success and the fact that both parties' versions of events were largely rejected, the court ordered that each party bear their own costs.

Following a finding of oppression, the court determined the appropriate process and parameters for valuing the respondent's shares in a real estate development corporation to effect a buyout by the applicant.

The court declined to appoint separate valuators, instead directing a reference to a master to determine the share price.

The court set the valuation date as the date of the oppression decision, rather than an earlier date proposed by the applicant, and provided guidance on specific adjustments including equalization of costs and the treatment of the property's lapsed site plan approval.

The applicants and respondents formed an incorporated partnership to acquire and develop a hotel and adjacent lands.

The applicants alleged that the respondent unilaterally altered the corporation's capital structure to give himself absolute voting control, engaged in self-dealing, and funneled corporate funds to personal accounts.

The court found the respondent's conduct constituted oppression under section 248 of the Business Corporations Act.

Given the complete breakdown of trust and lack of alternative remedies, the court ordered the winding up of the corporation and appointed a liquidator.

This is a costs endorsement following the dismissal of the defendants' motion for summary judgment.

The plaintiffs, as the successful parties, sought costs on a partial indemnity scale.

The defendants argued their motion was reasonably brought and narrowed issues, and that the requested costs were excessive.

The court awarded costs to the plaintiffs, fixing fees at $41,049 and disbursements at $792.40, totaling $47,280.78 including HST, to be paid within 30 days.

The court applied a 60% partial indemnity rate, considering the significance and complexity of the underlying motion.

The Third Parties, Jimmy K. Sun and Sun Partners, brought a motion for summary judgment to dismiss the defendants' Third Party Claim for contribution and indemnity.

The motion was based on the expiry of the limitation period under the Limitations Act, 2002.

The court found that Section 18 of the Act establishes an absolute two-year limitation period from the date the first alleged wrongdoer was served with the claim, and that the doctrine of fraudulent concealment did not apply to extend this period.

The Third Party Claim was commenced more than two years after the defendants were served with the Statement of Claim.

The applicant, Claude Bitton, brought an action for breach of contract and an application for an oppression remedy against Alain Checroune, A. Checroune Realty Corporation, and 500 Sheppard Avenue West Ltd. The parties had intended to jointly develop a condominium property.

The court found that a binding agreement existed regarding the assumption of a mortgage, registration of new mortgages, and share transfer, but no enforceable agreement on development funding or management.

The court concluded that Checroune and A. Checroune Realty engaged in oppressive conduct by failing to discharge the CMLS mortgage, improperly registering a second mortgage, and failing to fund half of the corporation's ongoing expenses.

However, the court found no damages caused by Checroune's conduct, attributing project stagnation to Bitton's inaction.

The court ordered the invalidation of a Notice of Sale, discharge of the CMLS mortgage, partial discharge of Bitton's mortgage, and the sale of A. Checroune Realty's shares in 500 Sheppard Avenue West Ltd. to Bitton, with further submissions required for valuation.

The defendants moved for summary judgment to dismiss the plaintiffs' action concerning a share purchase agreement for a commercial property.

The core issue was whether the defendant vendor used "best efforts" to satisfy a condition precedent requiring all litigation affecting the property to be resolved by the closing date.

The plaintiffs sought specific performance, arguing the condition was not met due to the defendant's breach.

The court found a genuine issue requiring a trial regarding the defendant's best efforts, dismissing the summary judgment motion.

The court also declined to discharge the plaintiffs' certificate of pending litigation or set aside an interlocutory injunction, and refused partial summary judgment on the defendants' counterclaim for unpaid rent due to intertwined factual issues.

In an addendum to previous reasons ordering a buyout of certain members of a corporation, the court addressed disputed terms of the buyout order.

The court determined that the boundaries of severed and retained parcels did not require further input, as the total property value would dictate payouts.

The court also ruled that costs, including commissions, closing costs, and capital gains taxes related to the sale of severed parcels, must be borne by the departing members who benefit from those sales.

A request for interim distributions was denied due to practical uncertainties and tax liabilities.

The Lash family owned a 30-acre cottage property through a non-profit corporation, Lash Point Association Corp. (LPAC).

A dispute arose between family members who wanted to sell their interests and leave (the leave camp) and those who wanted to keep the property for future generations (the remain camp).

The leave camp applied to wind up the corporation and sell the entire property, while the remain camp proposed a court-ordered buyout of the departing members funded by the sale of severed parcels.

The court dismissed the winding up application, finding that a buyout was a viable alternative that would allow departing members to receive fair market value while preserving the corporation's purpose for the remaining members.

The court appointed a receiver to implement the buyout process.

The appellants appealed a trial judge's decision finding that the parties had entered into an oral agreement whereby the respondent was a 50% beneficial shareholder in the appellant corporation and was entitled to a $2.8 million shareholder loan in exchange for his assistance in restructuring a distressed business.

The appellants argued the trial judge made palpable and overriding errors of fact and erred in granting an oppression remedy under s. 248 of the Business Corporations Act.

The Divisional Court dismissed the appeal, finding ample evidence supported the trial judge's factual findings regarding the oral agreement and credibility assessments.

The Court further held that the trial judge did not err in principle in granting the oppression remedy, as the respondent met the definition of a complainant and the remedy accorded with his reasonable expectations.

Following the dismissal of the plaintiff's action on a motion for summary judgment due to the expiry of the limitation period, the successful defendants sought costs.

One defendant sought substantial indemnity costs, arguing the action was ill-conceived, and an additional fee for in-house counsel.

The court awarded partial indemnity costs to both defendants, finding the case was not exceptional to warrant elevated costs and lacking documentation for the in-house counsel claim.

The court also declined to order the plaintiff to pay third-party costs.

The plaintiff, Cargojet Airways Ltd., brought an action for breach of contract and negligence against Aveiro Constructors Limited and Hatch Mott MacDonald Ltd. regarding defects in an aircraft hangar's insulation.

The defendants moved for summary judgment, arguing the action was barred by the Limitations Act, 2002, and a contractual limitation period for Hatch.

The court found that Cargojet had sufficient knowledge of the material facts to commence a claim by May 3, 2010, and failed to act with due diligence.

Consequently, the action against Aveiro was statute-barred by the two-year statutory limitation period, and the action against Hatch was barred by its twelve-month contractual limitation period.

Both motions for summary judgment were granted, and the action was dismissed.