Dalkeith Palmer

The appellant, Paul Blanchard, appealed a trial judgment that found his personal guarantee to JPM Trade Capital Inc. was a continuing guarantee, covering multiple subsequent loans to TEC International Corporation.

The Court of Appeal applied the principles of contractual interpretation from *Sattva* and *Earthco*, affirming that such interpretation is a question of mixed fact and law, subject to palpable and overriding error review.

The court found no palpable and overriding error in the trial judge's determination that the guarantee was continuing, based on the contract's language and surrounding circumstances, and dismissed the appeal.

This endorsement concerns the penalty phase of a civil contempt hearing.

The respondent, Vijai Ramkisson, was found in contempt for repeatedly refusing to attend an examination in aid of execution.

Despite having purged his contempt by eventually attending the examination and paying the judgment amount, the court found a need for denunciation and deterrence due to the blatant, deliberate, and wilful nature of his disobedience.

The applicants sought a fine of no less than $5000 and substantial indemnity costs.

The court imposed a fine of $2500 and awarded substantial indemnity costs of $27,500, emphasizing that a contemnor cannot unilaterally decide to disobey a court order.

The applicants brought a motion seeking a declaration of contempt against Vijai Ramkisson for his repeated failure to attend an examination in aid of execution, as compelled by a prior court order.

Ramkisson argued he lacked knowledge of the order until recently and intended to move to set aside the default judgment.

The court found Ramkisson in contempt, concluding that the order was clear, he had actual knowledge (at least from January 24, 2024, and likely earlier), and he intentionally failed to comply.

The court rejected his explanations as incredible and emphasized that an intention to set aside an order does not excuse non-compliance.

The penalty phase was bifurcated and deferred to allow Ramkisson an opportunity to purge his contempt by attending the examination.

The applicants, who are the children and accountant of the respondent, brought an application for declarations that the respondent is incapable of managing property and personal care, and incapable of granting or revoking powers of attorney.

The respondent, an elderly man with significant real estate holdings, had executed powers of attorney in 2011 in favour of the applicants.

Following a stroke and cognitive decline, the applicants assumed management of his affairs.

Subsequently, the respondent married a new partner and executed new powers of attorney with the assistance of a friend.

The court reviewed competing capacity assessments and medical evidence, concluding that the respondent has been incapable of managing property and personal care since September 2017, and incapable of granting or revoking powers of attorney since November 2018.

The court affirmed the authority of the applicants under the 2011 powers of attorney.

Marijana Mudronja brought a motion under Rule 59.06(2)(a) of the Rules of Civil Procedure and s. 248 of the Ontario Business Corporations Act to vary or set aside a prior order by Justice Shaw that set the valuation date for her shares in Mareddy Corporation to 2017.

She argued that Eddy Mudronja, the majority shareholder, failed to disclose relevant information and destroyed corporate records, and that the property's value significantly increased post-2017.

The court dismissed the motion, finding no new evidence, no fraud, and that the alleged undisclosed information was either requested after the initial hearing, already disclosed, or irrelevant.

The court emphasized the finality of orders and rejected the notion of continuing jurisdiction to re-litigate valuation dates based on market fluctuations or previously known facts.

Following a trial of an issue regarding shareholder oppression and the valuation of shares, the applicant sought substantial indemnity costs of over $618,000.

The court found the applicant was only partially successful and awarded partial indemnity costs.

The court significantly reduced the requested quantum because the applicant's costs submissions lacked detail and the applicant engaged in unreasonable litigation conduct by refusing to allow experts to confer and resisting settlement efforts.

The court awarded the applicant $138,425 in costs, which included $2,500 for costs thrown away due to the respondent's improper communication with a witness during cross-examination.

The applicant minority shareholder sought a determination of the purchase price for her 40% interest in a real estate holding corporation owned with her former spouse.

The court found that the respondent majority shareholder engaged in oppressive conduct by failing to provide financial disclosure, operating the corporation solely for the benefit of his separate operating company, and destroying corporate records.

To remedy the oppression, the court valued the applicant's shares at $1,832,054.60 without applying a minority discount.

The applicant sought to remove the respondent as the attorney for property and personal care for her father, alleging he lacked capacity to grant the power of attorney, that the respondent exercised undue influence, and that the respondent mismanaged his property and care.

The court found insufficient evidence to rebut the presumption of capacity or to establish undue influence.

The court also found no strong and compelling evidence of misconduct or neglect by the respondent to justify terminating the valid power of attorney.

The application was dismissed.

The applicant and respondent, former spouses, were involved in a shareholder dispute regarding a family-owned real estate holding company.

The parties agreed that the respondent would purchase the applicant's 40% share, but disputed the valuation date.

The applicant sought a valuation at the date of the hearing, alleging oppressive conduct, while the respondent sought a valuation at the date he commenced his application in 2015.

The court found that the respondent's failure to provide financial disclosure constituted oppressive conduct and was not statute-barred.

However, considering the delays caused by both parties and the applicant's lack of involvement in the company, the court determined that the fair and just valuation date was the corporate year-end in 2017.

The applicant, Indira Sampath, and respondent, Sandra Deopersad, brought motions concerning the distribution of net refinancing proceeds from a residential property.

Equitable title to the property was held 60% by Sampath and 40% by Sirju Deopersad (Sandra's ex-spouse).

Sandra Deopersad sought to apply Sirju's 40% share to his outstanding judgment debt to her.

Sampath's cross-motion sought reimbursement from Sirju for his share of carrying costs based on unjust enrichment.

The court granted Sandra Deopersad's motion, calculating Sirju's net share after specific transactional cost deductions, and dismissed Sampath's cross-motion, finding that her unjust enrichment claim was not properly pleaded and could not take priority over Sandra Deopersad's judgment enforcement.

The plaintiffs sought specific performance for a failed new home purchase, alleging the vendor acted in bad faith by refusing a closing extension and that there was an implied financing condition.

The defendants moved for summary judgment, seeking dismissal of the action, termination of the Agreement of Purchase and Sale (APS), and forfeiture of the deposit.

The court granted summary judgment, finding the vendor acted in good faith, no implied financing condition existed, the property was not unique, and the purchasers defaulted, leading to deposit forfeiture.

The applicant sought a declaration that she was the sole beneficial owner of a property legally owned by the respondent, her friend, to prevent the respondent's former spouse from selling the property to enforce a family law judgment.

The applicant claimed an oral agreement existed where the respondent held the property in trust because she could not obtain a mortgage.

The court found insufficient evidence of a 100% trust but determined that both parties contributed to the purchase price.

Applying the presumption of a purchase money resulting trust, the court declared the applicant held a 60% interest and the respondent held a 40% interest in the property.

The court issued a costs endorsement following a successful motion by the respondents to stay the applicant's oppression relief application due to an arbitration clause in a Unanimous Shareholders' Agreement.

Despite the respondents' success on the stay motion, the court denied costs to both parties.

The court found both parties blameworthy for initiating litigation without invoking the arbitration clause, but deemed the respondents' conduct more blameworthy for unilaterally terminating the applicant's employment and excluding him from the business in breach of the USA before seeking protection of the arbitration clause.

The respondents brought a motion to stay the applicant's oppression relief application, arguing that an arbitration clause in their Unanimous Shareholders' Agreement (USA) applied.

The applicant contended that the arbitration clause was inapplicable due to the respondents' unilateral breach, its use as a tool of oppression, and the 'day-to-day business' exception.

The court granted the stay, finding the arbitration clause broad enough to cover the claims, including those of oppression and involving non-signatory corporations, and that the hiring/firing of key personnel was not a 'day-to-day' matter.

The court emphasized the competence-competence principle, referring the determination of the arbitration agreement's reach and jurisdiction over non-parties to the arbitrator.

This endorsement addresses a respondent's motion to stay an applicant's application, raising three key issues for which the court requires further submissions and case law.

The issues concern the impact of non-parties to a Unanimous Shareholder Agreement (USA) on the stay analysis, questions of waiver regarding the USA's dispute resolution clause, and whether claims for oppression relief under the Canada Business Corporations Act or Ontario Business Corporations Act affect the stay application, particularly in light of an arbitrator's right to determine jurisdiction.

Carl Gorman applied for relief under the Canada Business Corporations Act and the Ontario Business Corporations Act.

Wade Kosowan brought a motion to stay the application, arguing lack of jurisdiction and opposing interim terms.

The court granted an adjournment but imposed interim terms, reinstating Gorman to his position and duties with the respondent corporations, finding Kosowan's unilateral termination and exclusion of Gorman without arbitration constituted unequal and unfair treatment.

The court also ordered Kosowan's motion to stay and Gorman's application to be heard on the same return date to expedite resolution.

The purchaser of a commercial property sought a declaration that the tenant was an over-holding occupant and sought vacant possession, arguing the commercial lease was not registered on title.

The tenant brought a cross-application for a declaration that the lease was valid and subsisting.

The court found that the purchaser had actual and deemed knowledge of the long-term commercial lease prior to closing, as they had visited the property multiple times, observed the business, and their real estate lawyer had received a copy of the lease from the vendor's lawyer before closing.

The purchaser's application was dismissed and the tenant's lease was declared valid and subsisting.

Following a lengthy commercial dispute involving allegations of breach of fiduciary duty, conspiracy, misuse of confidential information, wrongful dismissal, and fraudulent conveyances, the court determined the allocation and scale of costs arising from two trials and related proceedings.

The litigation involved numerous parties and mixed results, with certain defendants fully successful and others partially liable.

The court concluded that the complexity of the litigation and the magnitude of the claimed costs warranted referral of most quantification issues to an assessment officer under Rule 58 of the Rules of Civil Procedure.

Substantial indemnity costs were awarded in several instances, including where unproven allegations of fraud or serious misconduct had been advanced, while partial indemnity costs applied to others depending on conduct and settlement offers.

The court also considered the appropriateness of Bullock and Sanderson orders in allocating responsibility among defendants.

The appellants, who are farmers, appealed a summary judgment enforcing security against them.

The Court of Appeal allowed the appeal, finding that the respondent failed to serve the required notice under s. 21 of the Farm Debt Mediation Act before taking proceedings to enforce the security.

The Court held that a farmer does not need to demonstrate insolvency to be entitled to this notice, and the failure to serve it rendered the proceedings null and void under s. 22.

The Court also set aside a contempt order against the appellants.