Dan Matson

The plaintiffs brought a motion under Rule 49.09 to enforce an alleged settlement agreement for the purchase and sale of shares in a private corporation.

The court found that a binding agreement was initially formed through an exchange of emails for the purchase of shares for $100,000.

However, the defendant subsequently breached this agreement by failing to take steps to implement it.

The court further found that the plaintiff, in response to the defendant's breach, accepted the defendant's repudiation of the contract by proposing a new, lower purchase price of $98,800.

This action by the plaintiff terminated the original agreement, discharging both parties from further obligations under it.

Consequently, the plaintiffs' motion for judgment to enforce the original $100,000 settlement agreement was dismissed.

The defendants, Man-Shield (NWO) Construction Inc. and Manshield (NWO) Construction, Inc., brought an application to stay multiple construction lien actions in favour of arbitration.

The subcontractors and owners opposed the stay.

The court dismissed the application, finding that Man-Shield had unduly delayed in seeking the stay, as measured from the date the statements of claim were issued.

The court also found Man-Shield estopped by its conduct and that granting a stay would create more uncertainty and delay, rather than facilitate resolution.

The defendants, Aikins, MacAulay & Thorvaldson and Jonathan B. Kroft, brought a motion for summary judgment to dismiss the action against them, arguing there was no genuine issue requiring a trial.

The plaintiff, Man-Shield (NWO) Construction Inc., opposed the motion, contending it was premature and requested a stay until after the examination for discovery of another defendant, Gisele Macdonald.

The court found no evidence that Aikins and Kroft engaged in or assisted in any dishonest or fraudulent act, and that the plaintiff's allegations were speculative.

The motion for summary judgment was granted, and the action against Aikins and Kroft was dismissed.

This decision addresses costs following the dismissal of the defendant's motion to compel the plaintiff to answer undertakings and re-attend for examination.

The motion was dismissed due to its late timing and the defendant's counsel's delay and discourteous conduct.

The plaintiff sought substantial indemnity costs, arguing the motion was brought inappropriately late.

The court awarded partial indemnity costs, finding the defendant's counsel's conduct inappropriate but not rising to the level warranting substantial indemnity, and applied the principles of reasonableness and access to justice under Rule 57.01 and the Courts of Justice Act.

The applicant sought a finding of contempt against the respondent for breaching an interim order regarding access to premises and handling of assets during a tenancy dispute.

The court found the respondent in contempt for intentionally refusing access to one of the applicant's employees, Mr. Fennell, which was contrary to the order for supervised access.

Other allegations, including unreasonable behaviour, preventing removal of an 8-foot brake, and relocating assets within the premises, were not proven beyond a reasonable doubt.

The court imposed a fine of $5,000 and awarded substantial indemnity costs of $8,000 to the applicant.

Punitive damages were deemed inappropriate at this interim stage.

The defendant brought a motion seeking an order for the plaintiff to answer undertakings from an examination for discovery and re-attend for further examination.

The undertakings concerned financial records for the plaintiff's business, which the plaintiff deemed irrelevant, having provided Canada Revenue Agency notices of assessment.

The defendant delayed over a year in bringing the motion, despite repeated attempts by the plaintiff's counsel to arrange for continuation of examinations.

The court dismissed the motion, finding the defendant's delay inappropriate and noting the significant potential for trial delay.

The court emphasized that the defendant had ample opportunity for discovery and was not precluded from cross-examining on financial records at trial, applying principles of proportionality and orderly progress of the action.

The plaintiff was successful on a motion for leave to conduct a second examination for discovery of the corporate defendant and sought substantial indemnity costs due to alleged unreasonable delay by the defendant.

The court rejected the request for substantial indemnity costs, finding the defendant's conduct did not reach the level of aggressive or contumelious behaviour required.

Costs were fixed on a partial indemnity basis at $1,000 for fees plus disbursements, reflecting a fair and reasonable amount for an uncomplicated procedural motion.

In a wrongful dismissal and Human Rights Code action, the plaintiff sought leave under Rule 31.03(2)(b) of the Rules of Civil Procedure to examine a second corporate representative of the defendant.

The initially examined representative had not reviewed a large disability insurer file produced in the litigation and lacked knowledge of communications with the insurer.

The court held that requiring numerous undertakings from an unprepared witness would cause undue expense and inefficiency.

Because another corporate officer had direct knowledge of the relevant communications, leave to conduct a limited second discovery was appropriate.

The examination was restricted to questions arising from the insurer’s long-term disability file and capped at 1.5 hours.

Following dismissal of a motion under s. 47 of the Construction Lien Act seeking to discharge a construction lien as filed out of time, the court determined the appropriate costs award.

The successful lien claimant sought substantial indemnity costs alleging the motion was tactical and should have been abandoned after cross‑examination evidence emerged.

The court held there was no unreasonable conduct or bad faith justifying substantial indemnity and applied the general discretion under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

Considering reasonableness, complexity, the amount in issue, and duplication of lawyer time, the court reduced the claimed partial indemnity fees.

Costs were fixed at $8,000 plus HST and disbursements, payable within 30 days.

The defendant subcontractor brought a motion under s. 47 of the Construction Lien Act to discharge the plaintiff's claim for lien, arguing it was filed out of time.

The plaintiff had stopped providing hoisting services to the defendant due to unpaid arrears but continued providing services on the project after the general contractor agreed to pay for them directly.

The court found a genuine issue for trial regarding whether the subsequent services were provided under a continuing contract with the defendant or a new contract with the general contractor.

The motion was dismissed.