Daniel J. MacKeigan

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.

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.

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 plaintiff subcontractor brought a motion for leave to issue an amended Statement of Claim, an order for production of documents, and examinations for discovery in a construction lien action.

The defendant ABB brought a cross-motion for leave to seek security for costs.

The court granted the plaintiff's motion for production and discovery, finding that the plaintiff's claim went beyond a typical lien action by alleging direct contractual undertakings by ABB.

The court dismissed ABB's cross-motion for security for costs, finding insufficient evidence that the plaintiff lacked assets.

The plaintiffs sought costs after successfully opposing an interlocutory motion by the defendants seeking to stay the action and refer the dispute to arbitration.

Both parties filed extensive materials and the motion occupied most of a court day.

Applying the principles governing costs under Rule 57.01(1) of the Rules of Civil Procedure and the guidance in Boucher v. Public Accountants Council for the Province of Ontario, the court considered the need for a fair and reasonable costs award proportionate to the proceeding.

Given that the plaintiffs were completely successful on a contested and significant motion, the court awarded costs on a partial indemnity basis.

Costs were fixed at $17,750 inclusive of disbursements and HST.

Franchisees commenced an action seeking rescission of a franchise agreement and related relief under the Arthur Wishart Act (Franchise Disclosure), 2000, along with damages for negligent misrepresentation.

The defendants moved to stay the proceeding and refer the dispute to arbitration pursuant to an arbitration clause in the franchise agreement.

The court held that several defendants were not parties to the arbitration agreement and therefore could not invoke the stay provisions under s. 7(1) of the Arbitration Act, 1991.

Given the presence of non‑signatory defendants and the risk of delay, duplication of resources, and inconsistent findings, the court declined to order a partial stay.

The motion to stay the action in favour of arbitration was dismissed.

Following a motion concerning better particulars, striking the statement of claim, and transfer of venue, the defendant sought partial indemnity costs of $8,000–$10,000.

The court noted the defendant’s primary success was obtaining a transfer of the proceeding to London but found the motion was premature and that several claims for relief were rejected.

The court also observed that the plaintiff’s pleading unnecessarily complicated the proceeding with multiple causes of action.

Concluding that both parties achieved limited success and lost something through the motion, the court determined that fairness required each party to bear their own costs.

The defendant brought a motion to strike the plaintiff’s statement of claim or compel further and better particulars, and sought transfer of the action from Kitchener to London.

The court held that pleadings should contain concise material facts rather than evidence and that motions to strike should only succeed in the clearest of cases.

Several paragraphs of the statement of claim were struck where they duplicated issues in a related London action or pleaded matters involving parties not before the court.

Other allegations were permitted to stand, with leave granted to amend certain pleadings to clarify material facts.

The action was ordered transferred to London so that related proceedings concerning the same property dispute could be managed together.