Danielle Muise

This is a costs endorsement following the dismissal of the plaintiff's action for oppressive conduct under the Business Corporations Act, breach of contract, and breach of the duty of good faith.

The defendants sought costs on a substantial indemnity basis following their offers to settle, but the court found the offers did not comply with Rule 49 due to uncertain release terms.

The court awarded costs on a partial indemnity basis, rejecting the defendants' argument for elevated costs despite allegations of fraud made by the plaintiff.

The court considered the complexity of the proceeding, the amounts claimed, the rates and hours spent by counsel, and the reasonable expectations of the parties.

The plaintiff, a former consultant and minority shareholder of Kela Medical Inc., brought an action for oppression, breach of contract, and breach of the duty of good faith against the corporation and its principals.

The plaintiff claimed he was entitled to a 33% stake in the proceeds of the sale of a related company, KAI, based on a 2013 compensation agreement.

The court dismissed the action, finding that the 2013 Agreement was a one-year contract that expired before the conditions for the plaintiff's claimed benefits were met.

The court also found no oppressive conduct or misrepresentations by the defendants.

Furthermore, the court held that the plaintiff's claims were statute-barred under the Limitations Act, 2002, as he knew or ought to have known the material facts giving rise to his claims when he resigned in 2014, more than two years before commencing the proceeding.

The defendants brought a motion under Rule 21 of the Rules of Civil Procedure to strike claims related to a family business dispute, arguing they were barred by the ultimate 15-year limitation period under the Limitations Act, 2002.

The court dismissed the motion, finding that it was not plain and obvious that the claims could not succeed.

The judge emphasized that Rule 21 motions are for clear cases based on pleadings, not for fact-finding, especially when issues like the precise 'act or omission' triggering the limitation period and potential willful concealment are disputed and require evidence.

The court also rejected the argument that an oppression remedy is automatically precluded by corporate dissolution, noting that such remedies can include damages for past wrongs and that technical dissolution does not necessarily mean a cessation of operations or asset misappropriation.

The applicant (Purchaser) sought the return of a $200,000 deposit paid for the purchase of a Volkswagen dealership's assets, arguing the Asset Purchase Agreement (APA) was terminated due to the failure to obtain necessary approvals from the Ontario Motor Vehicle Industry Council (OMVIC) and Volkswagen Group Canada (VW Canada).

The respondent (Vendor) refused, asserting the Purchaser breached its contractual obligations to use "reasonable commercial efforts" and act "on a timely basis" to secure these approvals.

The court found that the Purchaser indeed breached the APA by delaying its OMVIC application, failing to provide required documentation, and intentionally not signing and returning VW Canada's Letter of Intent by the stipulated deadline.

Consequently, the application was dismissed, and the deposit was forfeited to the Vendor.

The plaintiff, Penalta Group Ltd., brought a motion to extend deadlines for serving expert reports and setting the action down for trial, following a previous order that set aside an administrative dismissal for delay.

The defendant American Buildings Company opposed the motion, arguing for automatic reinstatement of the dismissal.

The court granted the extension for setting the action down for trial to November 3, 2022, and partially granted the extension for expert reports, specifically for Mr. Hartog's report to July 30, 2022.

However, a further extension for an additional expert report was denied due to insufficient evidence that an expert had been retained or how long it would take.

The court also granted leave for the plaintiff to continue the motion after serving the trial record.

The respondents, who were largely successful in defending a shareholder oppression application, sought costs including substantial indemnity costs from the date of an offer to settle.

The court found that the offer to settle did not trigger Rule 49 consequences because it omitted the applicant's statutory right to audited financial statements, an issue on which the applicant was successful.

The court awarded the respondents partial indemnity costs, reduced by 25% to reflect the applicant's partial success, fixing costs at $75,000.

The Corporation of the Town of Lincoln applied for declarations and a permanent injunction against multiple respondents for violating a municipal bylaw concerning fill importation and site alteration.

The respondents had contravened permit conditions, breached a stop work order, and continued illegal dumping.

While the Shire respondents conceded liability for the declarations and injunction, they disputed the scale and quantum of costs.

The Cascio respondents did not appear.

The court granted the declarations and permanent injunction, finding clear bylaw breaches and no exceptional circumstances to refuse the injunction.

The Town was awarded partial indemnity costs of $54,898, with responsibility apportioned 25% to the Shire respondents and 75% to the Cascio respondents, primarily due to the Cascio respondents' profit motive and failure to cooperate in shortening the proceedings.

The appellant insurer appealed a lower court's interpretation of a business interruption insurance policy's pandemic coverage limit.

The policy covered seven daycare locations, and the dispute centered on whether the $50,000 limit of liability for pandemic losses applied as a global total or per location.

The Court of Appeal, applying principles of insurance contract interpretation, found the clause unambiguous when read in the context of the policy as a whole, concluding that the limit applied on a per-location basis.

The appeal was dismissed, affirming the lower court's decision in favour of the insured.

The applicant, a 40% shareholder in a holding company (Pazkaz) that owns shares in a start-up (Rave), brought an oppression application under section 248 of the OBCA.

He alleged improper share dilution and mischaracterization of contributions as equity instead of loans, seeking various remedies including a buyout, conversion of equity to loans, removal of directors, or forced sale/winding up.

The court dismissed most of the applicant's claims, finding no unfair prejudice or oppression regarding share dilution or loan characterization, as the companies issued shares commensurate with investments and there was no evidence of misappropriation.

However, the court granted the applicant's request for audited financial statements for both Pazkaz and Rave, affirming a shareholder's statutory right to such information.

The plaintiff brought a motion to strike the defendants' statement of defence for failure to comply with previous court orders, including non-payment of costs, and sought leave to amend its statement of claim.

The court declined to strike the defence immediately but ordered that it could be struck if the defendants failed to pay the outstanding costs within 30 days.

The court also granted the plaintiff leave to amend its statement of claim, finding no prejudice to the defendants, and awarded the plaintiff $12,000 in costs for the motion.

The applicants sought a declaration that they were entitled to further coverage under the pandemic-related business income interruption provision of their insurance policy.

The insurer argued the coverage was restricted to an aggregate maximum limit of $50,000 for the policy period, while the insured argued the limit applied to each of their seven daycare locations.

Applying the principles of contractual interpretation, the court found the policy ambiguous but concluded that reading the policy as a whole supported the insured's interpretation.

The court granted the application, declaring the limit of liability is $50,000 for each of the seven scheduled risk locations, for a maximum aggregate coverage of $350,000.

The court issued a costs endorsement following its refusal to dismiss an application for assessment of solicitor's accounts due to inordinate delay.

The delay was primarily institutional, not attributable to the clients.

The clients were awarded partial indemnity costs of $6500, inclusive of HST and disbursements, despite seeking $7835.08 plus an additional $2500.

The reduction accounted for a period of client-attributable delay and some duplication of effort with a prior application.

The plaintiffs sought leave to add Viking Insurance Company of Wisconsin as a defendant in a motor vehicle accident tort claim more than five years after the accident.

Viking opposed the motion, arguing the claim was statute-barred.

The court found that the plaintiffs failed to exercise due diligence to ascertain Viking's potential liability within the limitation period, despite having access to information indicating Viking insured the plaintiff's husband's vehicle.

The motion to add Viking as a party was dismissed pursuant to section 21(1) of the Limitations Act, 2002.

The solicitors brought a motion to dismiss the clients' application for an assessment of accounts due to delay.

The accounts related to services provided between 2002 and 2012, and the assessment was ordered in 2012.

The court found that while the delay of over five years was inordinate and posed a risk of prejudice to the solicitors, it was not inexcusable on the part of the clients.

The delay was primarily institutional, caused by the actions and decisions of the assessment office.

The motion to dismiss was therefore dismissed.

The appellants sought to challenge legal accounts rendered by the respondent law firm to their creditor, Sun Life, in connection with enforcement of a secured loan.

The appellants had signed three successive release agreements that purported to preclude assessment of the accounts.

The motion judge held that the releases were effective to bar assessment.

On appeal, the Court of Appeal dismissed the appeal but on different grounds.

While expressing concerns about the motion judge's reasoning regarding the Solicitors Act, the appellate court held that the appellants failed to establish special circumstances required under section 11 of the Solicitors Act to justify assessment of accounts already paid by a third party.

The respondent law firm brought a motion seeking a declaration that three releases, signed by the applicants as part of various commercial agreements, precluded the assessment of legal accounts rendered by the respondent to Sun Life Assurance Company of Canada.

The applicants opposed, arguing the releases constituted contracting out of the protections of the Solicitors Act and that the respondent was estopped by res judicata or issue estoppel from challenging a Registrar's Order for assessment.

The court found that the releases were valid commercial agreements between sophisticated parties, represented by counsel, and did not fall within the public policy concerns of the Solicitors Act as articulated in Jean Estate.

The court also determined that res judicata and issue estoppel did not apply because the validity of the Registrar's Order was not previously litigated.

The respondent's motion was granted, and costs were awarded to the respondent.

The plaintiff brought a motion under Rule 26.01 of the Rules of Civil Procedure for leave to amend its statement of claim to add allegations of negligent misrepresentation against the principal of the defendant corporation, following news of his criminal indictment in New York.

The defendants opposed the amendments, arguing they lacked particularity and contained evidence rather than material facts.

The Master granted the motion, finding the proposed amendments set out a claim tenable at law, but ordered the plaintiff to provide additional particulars regarding the specific statements made, the special relationship, and the costs claimed.

The plaintiff bank brought a motion for summary judgment against the defendant guarantor to collect on a commercial loan in default.

The defendant pleaded non est factum, arguing he signed a $1,000,000 personal guarantee without reading it, mistakenly believing his liability was limited to $500,000.

The court applied the three-part test for non est factum and found no genuine issue for trial, noting the defendant was careless in failing to read the document and there was no misrepresentation by the bank.

Summary judgment was granted to the plaintiff.