Daniel J. MacKeigan

The appellant contractor appealed a motion judge's order discharging and vacating its construction lien.

The motion judge had found that the lien expired prior to perfection because the contract was terminated or abandoned more than 150 days before the certificate of action was registered.

On appeal, the contractor argued the motion judge erred in finding termination or abandonment and improperly used enhanced fact-finding powers.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings of termination and abandonment, and concluding that the motion judge correctly applied the evidentiary burden without resorting to enhanced fact-finding powers.

The defendants brought a motion for security for costs against the plaintiff, a former franchisee, citing the plaintiff's insufficient assets.

The plaintiff conceded its lack of assets but argued against the order, claiming impecuniosity and a meritorious case.

The court found the plaintiff failed to prove impecuniosity due to insufficient disclosure of shareholder assets and lack of inquiry into borrowing.

While acknowledging the defendants' delay in bringing the motion, the court ordered the plaintiff to post security for costs on a partial indemnity scale, significantly reducing the amount sought to reflect the delay and future litigation steps.

This is an appeal from a judgment granting partial summary judgment in favour of the respondent, Learmont Roofing Ltd. The appellants, Learmont Construction Ltd. et al., argued that the motion judge erred in finding no genuine issues for trial and in granting partial summary judgment without considering the risk of inconsistent findings with ongoing counterclaims.

The Court of Appeal found no merit in these arguments, agreeing that no genuine issues for trial were raised and that the counterclaims were not intertwined with the trust claim in a way that would lead to factual inconsistencies.

The appeal was dismissed.

The appellants, several Turtle Jack's restaurant franchisees, appealed a motion judge's order that set aside an Associate Judge's decision to add a new defendant (11554891 Canada Inc.) and allow amendments to their statement of claim regarding supplier contributions to an advertising fund.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that adding the new party and allowing the amendments would constitute an abuse of process due to inordinate delay, the dubious nature of the claims, and the fact that the amendments introduced new, statute-barred claims.

The court also upheld the costs award against the appellants.

Following a successful appeal setting aside a Master's order that amended pleadings and added a defendant, the successful appellants sought costs.

The court found the amounts sought excessive because the appellants were unsuccessful on several grounds of appeal and the costs of the underlying motion were fixed at $5,000.

The court awarded the TRG defendants $13,000 and the added defendant $12,000, inclusive of the underlying motion costs.

Following a motion where the defendants were largely unsuccessful in seeking further particulars and striking paragraphs of the plaintiff's statement of claim, the plaintiff sought costs of $11,923.04.

The court found the plaintiff was substantially successful and the defendants' motion was largely unnecessary.

The court awarded the plaintiff costs fixed at $8,500 on a partial indemnity scale.

The defendants appealed a Master's order that granted the plaintiffs leave to amend their statement of claim to add new defendants and new claims regarding supplier contributions to an advertising fund, and ordered related documentary production.

The Superior Court of Justice allowed the appeal in part.

The court found that adding a new corporate defendant on the eve of trial constituted an abuse of process given the extensive delays in the nine-year-old franchise dispute.

The court also held that the Master erred in allowing the amendments regarding supplier contributions, as they constituted a new cause of action that was statute-barred and not legally tenable under the clear terms of the franchise agreements.

The Master's orders adding the new party and allowing the supplier contribution amendments were set aside.

At a case conference, the plaintiff sought directions and a timetable for a summary judgment motion regarding an unpaid $138,134.33 instalment on a commercial roofing contract.

The defendants sought to amend their counterclaim to allege fraud on unrelated projects and requested further cross-examinations and productions.

The court held that the proposed counterclaim should not delay the summary judgment motion, emphasizing the need for proportionate and expeditious proceedings under Rule 1.04 and Hryniak.

The court directed that the summary judgment motion proceed without further cross-examinations or productions related to the counterclaim.

The defendants in a franchise dispute brought a motion to compel the plaintiff to provide further particulars and to strike numerous paragraphs of the plaintiff's amended statement of claim.

The plaintiff, a former franchisee of a dog daycare business, alleged that the defendants conspired to manufacture grounds to terminate the franchise agreement and take over the location.

The Master dismissed the majority of the defendants' demands for particulars, finding they improperly sought evidence rather than material facts required for pleading.

The Master also declined to strike most of the challenged paragraphs, though a few specific paragraphs and inflammatory words were struck with leave to amend.

The plaintiff brought a motion for the production of documents relating to unauthorized transfers from its business bank account.

The defendant consented to producing documents specific to the plaintiff's account but opposed producing documents relating to other online bank security breaches and the bank's general website security specifications.

The court dismissed the contested requests, finding that the request for documents about other breaches was a speculative fishing expedition without evidence of a systemic issue.

The court also held that the request for the bank's security specifications was premature, disproportionate to the $150,000 claim, and posed significant security risks.

The appellant tenant and respondent landlord disagreed over the interpretation of their commercial lease on two points: whether the leased premises included a parking area owned by the City of London and licensed to the landlord, and whether the landlord's right to exclusive use of office space permitted the landlord to lease that space to a third party.

The application judge found against the tenant on both points.

On appeal, the Court of Appeal upheld the application judge's decision regarding the parking area but reversed on the office space issue, finding that the lease language clearly distinguished between "use" (reserved exclusively to the landlord) and "access or entry" (afforded to the landlord and invitees), and therefore the landlord could not lease the office to a third party.

This appeal concerns a franchise dispute where the motion judge granted partial summary judgment for rescission of a franchise agreement and damages of $964,805.33 against the franchisor.

The central issue was whether the franchisor failed to disclose earnings projections that were allegedly shown to the franchisees at a May 2010 meeting, constituting material non-disclosure under the Arthur Wishart Act.

The appellate court allowed the appeal in part, setting aside the rescission judgment and damages award on the basis that the motion judge erred in determining the key disputed factual issue on contradictory evidence without oral testimony.

However, the court upheld the motion judge's determination that the rescission claim was timely, as the limitation period ran from the replacement agreement signed in September 2010 rather than the original agreement signed in June 2010.

This costs endorsement addresses two motions brought by the applicant: one to compel answers to undertakings and refusals, and another to remove a solicitor due to conflict of interest.

The court partially granted the motion to compel answers and ordered the solicitor's removal.

The applicant sought $7,500 in costs, while respondents argued for no costs or a significant reduction due to divided success.

The court, applying the principles of the Courts of Justice Act and Rules of Civil Procedure, awarded the applicant $5,500 in all-inclusive costs, allocating liability between specific respondents for each motion.

The plaintiffs sought partial-summary judgment for rescission of a franchise agreement and damages under the Arthur Wishart Act, alleging fundamental disclosure deficiencies, specifically the non-disclosure of earnings projections.

The defendants argued proper disclosure, timeliness issues, and issue estoppel.

The court, utilizing enhanced summary judgment powers, found that the non-disclosure of earnings projections constituted a material and fundamental omission, tantamount to no disclosure under AWA s. 6(2), thereby triggering the plaintiffs' right to rescission.

The court dismissed the defendants' arguments regarding timeliness, issue estoppel, and other alleged deficiencies, and granted the plaintiffs' motion for rescission and damages.

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 brought a motion for leave to file an additional affidavit, continue the cross-examination of the plaintiff, and compel production of evidence from a related bank action, after cross-examinations had already concluded.

The motion was brought shortly before a scheduled summary judgment motion, following a change of counsel for the defendants.

Applying the four-factor test from First Capital Realty, the court granted leave to file the additional affidavit, noting the importance of a full evidentiary record for a summary judgment motion and the lack of non-compensable prejudice.

However, the court denied the requests to continue the cross-examination and compel production of the bank action evidence.

Following a successful motion and the dismissal of a cross-motion for leave to bring a motion for security for costs, the court determined the appropriate costs award.

The successful party sought partial indemnity costs exceeding $10,000, while the opposing party argued for a reduced award.

The court accepted the successful party’s submissions, finding the time spent and counsel fees reasonable, including preparation and attendance time for the motion.

The court also considered additional telephone attendances required to finalize the order.

Costs were awarded on a partial indemnity basis in the amount claimed.

The defendant brought a motion to set aside a default judgment arising from a claim for unpaid gambling credit advanced by a casino.

The motion relied on an exclusive jurisdiction clause in the underlying credit agreement favouring Singapore courts and on a hearsay assertion that the defendant never received the statement of claim served by substituted service.

The court held that a forum selection clause does not render proceedings void and cannot justify setting aside a judgment absent other grounds, particularly where the defendant delayed and produced no evidence of a defence on the merits.

Applying the factors governing motions to set aside default judgment, the court found no credible explanation for the defendant’s delay, no evidence of non‑service, and no arguable defence.

The interests of justice therefore did not favour granting relief.

This endorsement corrected an earlier released decision arising from two plaintiff motions in separate construction lien actions to amend statements of claim and obtain production and discovery.

The court noted that the earlier decision inadvertently referred only to one court file, although the issues and parties were the same in both actions.

The endorsement directed that the decision also apply to the second identical court file and that an order issue accordingly.