Dennis M. Touesnard

The plaintiff, Jetstream Environmental Solutions, sued the defendants, Normerica Realty Corporation and Normerica Inc., for breach of contract and unjust enrichment related to emergency waste removal services after a roof collapse at Normerica's plant.

The court found a clear and unambiguous contract existed between the parties, based on their prior working relationship and Normerica's directive to "do whatever it takes" to resolve the emergency.

The court found Normerica liable for breach of contract, rejecting their retrospective complaints about the work and billing process as disingenuous.

Judgment was granted in favour of Jetstream for the full outstanding amount plus interest, and the construction lien was declared properly placed.

The plaintiff brought a motion to find the defendants in contempt of an interim order requiring them to deliver up confidential information.

The former employee defendant had retained some confidential information on his personal computer and cellphone, but disclosed this fact and subsequently deleted the computer files.

The court found that while there was non-compliance, the plaintiff failed to prove beyond a reasonable doubt that the breach was intentional.

The contempt motion was dismissed, but the court ordered the defendant to delete remaining contacts from his cellphone and submit to cross-examination.

The plaintiff in a wrongful dismissal action brought a motion to strike paragraphs from the defendant's Statement of Defence that alleged cause for termination.

The plaintiff argued that the defendant had already admitted in its pleadings and on discovery that the termination was without cause.

The court granted the plaintiff leave to bring the motion despite having served a Notice of Readiness, finding that the defendant's subsequent motion regarding discovery refusals was an unexpected change in circumstances.

The court struck the impugned paragraphs, finding them irrelevant as the defendant had unequivocally pleaded that the termination was without cause and had not amended its pleadings to assert after-acquired cause.

The defendant was entirely successful on a motion for security for costs against the plaintiff Bankruptcy Trustee.

The defendant sought partial indemnity costs of $16,605.88, while the plaintiff proposed $4,409.12.

The court fixed costs at $15,000 all-inclusive, applying the factors in Rule 57.01 and the principle of fair and reasonable expectations.

The court declined to defer payment until after trial, ordering payment before any further steps are taken, but refused to order the Bankruptcy Trustee to pay the costs personally under s. 197(3) of the Bankruptcy and Insolvency Act.

The appellants appealed a trial judgment awarding the respondents general damages of $75,000 and punitive damages of $75,000 for defamation.

The trial judge found that the appellant, a City manager, made defamatory statements about the respondents' business during a meeting with a supplier representative, acted maliciously in response to complaints the respondent had made about him, and abused his position as a public officer.

The Court of Appeal upheld the findings of defamation, malice, and abuse of position, but set aside the punitive damages award, finding that the trial judge failed to analyze whether the compensatory damages were adequate to achieve the objectives of retribution, deterrence, and condemnation.

The appeal was allowed in part.

The defendant brought a motion for security for costs against the plaintiff, a bankruptcy trustee.

The trustee had commenced an action regarding a trust agreement over a residential property.

The court found that the defendant did not require leave to bring the motion despite consenting to the action being set down for trial.

The court also determined that the claim was properly brought in civil court rather than bankruptcy court.

Applying the test for security for costs, the court found that the trustee had insufficient assets and failed to demonstrate impecuniosity, as it had not sought funding from creditors.

The court ordered the trustee to post $25,000 in security for costs.

The plaintiffs, a cable installation company and its director, sued the City of Brantford and its IT manager for defamation, intentional interference with economic relations, and abuse of public office.

The IT manager made false and malicious statements about the quality of the plaintiffs' work to a supplier and others, motivated by complaints the plaintiffs had made against him.

The court found the statements were defamatory and an abuse of public office, awarding $75,000 in general damages and $75,000 in punitive damages, but dismissed the claim for lost profits.

The defendant, Ryszard Musiala, brought a motion for summary judgment seeking to dismiss the plaintiff Trustee's claim, lift a Certificate of Pending Litigation on a property, and declare no interest for the bankrupt or Trustee in the property.

The plaintiff, J.P. Graci & Associates Ltd., as Bankruptcy Trustee, opposed the motion, arguing that genuine issues requiring a trial existed regarding the beneficial ownership of the property and the legal impact of a lump-sum mortgage payment made by Musiala.

The court found significant inconsistencies in Musiala's evidence and insufficient facts to confidently determine the parties' interests or the application of equitable remedies like subrogation.

Consequently, the motion for summary judgment was dismissed, as a trial was deemed necessary to resolve the complex factual and legal disputes and avoid inconsistent findings.

The appellant appealed a motion judge's decision declining to approve the sale of property (79 Bramsteele Road, Brampton, Ontario) by a court-appointed receiver to the appellant.

The property was owned by a religious charitable organization that became insolvent.

The receiver entered into an agreement to sell the property to the appellant, but the motion judge declined approval, instead establishing a process to permit assignment of the first mortgage held by the respondent mortgagee.

The Court of Appeal found the motion judge erred in applying the second Soundair duty by failing to properly consider the interests of creditors and the appellant as purchaser.

The court allowed the appeal and ordered a new hearing.

A homeowner appealed a lower court decision that upheld a greenhouse operator's use of storing and grinding wood on-site as an accessory use under the local zoning bylaw.

The homeowner sought a declaration that the wood storage and grinding operations violated the zoning bylaw.

The Court of Appeal upheld the lower court's decision, finding that storing and grinding wood for heating greenhouses constitutes a natural and normal incident of operating a greenhouse and therefore qualifies as an accessory use under the bylaw definition.

The court rejected the homeowner's argument that a restrictive interpretation of "naturally and normally incidental" was required.

On appeal from a motion judge's decision to enforce a settlement agreement, the appellants challenged the motion judge's finding that a verbal settlement agreement had been reached between the respondent's counsel and the litigation administrator of the deceased defendant's estate on February 9, 2016.

The appellants argued that the motion judge erred in failing to apply Rule 49.09, in finding there was no genuine issue regarding intent to create a legally binding agreement, and in failing to consider whether the settlement should be enforced.

The Court of Appeal dismissed the appeal, finding that Rule 49 did not apply as no Rule 49 offers were served, that the motion judge's finding of a binding agreement was supported by detailed reasons with no palpable and overriding error, and that the motion judge had fully considered all relevant factors regarding enforcement.

The individual defendants brought an urgent motion to stay the execution of a summary judgment granting the plaintiff possession of their personal residences following a corporate loan default.

The defendants argued the plaintiff should first realize on the bankrupt corporation's assets.

The court found it had inherent jurisdiction to grant a stay but declined to do so, ruling the motion was an impermissible collateral attack because the defendants failed to seek this relief during the original summary judgment motion.

The court also found the defendants failed to prove the corporate assets had sufficient value to satisfy the debt.

The motion was dismissed.

Following the plaintiff's successful resistance of a motion brought by the defendant trustees regarding a temple construction project, the plaintiff sought costs.

The plaintiff had previously offered to forego costs if the motion was withdrawn, which the trustees refused.

The court found the plaintiff's claimed costs reasonable and ordered the trustees to pay $7,182.49.

The plaintiff brought a motion for summary judgment against the defendants for vacant possession and payment under four mortgages in default.

The defendants argued that the guarantees and collateral mortgages signed by the spouses were unenforceable due to undue influence by their husbands.

The court found no genuine issue requiring a trial, noting that the spouses had received independent legal advice and signed the documents despite advice to the contrary.

The court held there was no evidence of actual or presumed undue influence.

Summary judgment was granted, ordering monetary judgments and writs of possession.

The defendants brought a motion for summary judgment to vacate a construction lien, arguing the plaintiff registered the lien more than 45 days after the contract was abandoned.

The plaintiff argued that work had merely ceased due to financing issues and the contract was never permanently abandoned.

The court found that ongoing communications between the parties suggested the contract might not have been abandoned, and the defendants failed to provide evidence from their key representative.

The court dismissed the motion, finding a genuine issue for trial regarding whether the contract was abandoned.

The plaintiff fuel supplier sued the estate of a deceased transport company operator for unpaid invoices totaling $130,313.15.

The defendant argued the debt belonged to a numbered corporation, not the deceased personally.

The court found that the deceased failed to provide adequate notice to the plaintiff that he was operating through a corporation, as required by the Business Names Act and Business Corporations Act.

The use of the words 'transport company' on a credit application was insufficient notice.

The plaintiff was granted judgment against the estate personally.

The applicant brought a motion for a Certificate of Pending Litigation regarding a rural property formerly owned by his parents.

The applicant alleged that the property was transferred to the respondent's corporation to be held in trust for the applicant, who purchased it at half its market value from his parents but could not obtain financing.

The respondent claimed the property was purchased outright with an expectation the applicant would buy it back later.

The court found a triable issue regarding the applicant's beneficial interest and held that damages would be inadequate given the property's long history in the applicant's family.

The motion for a Certificate of Pending Litigation was granted on terms.

The defendant bankruptcy trustee brought a motion for summary judgment to dismiss the plaintiff's action for conversion and negligence on the basis that the two-year limitation period had expired.

The plaintiff claimed a half-interest in a boat that her bankrupt husband had purportedly gifted to their son, which the trustee subsequently seized and sold.

The court found that the trustee took possession of the boat on May 30, 2011, and the statement of claim was issued exactly two years later on May 30, 2013, making it within the limitation period.

The court also noted that the alleged conversion likely occurred when the boat was sold, not when possession was taken.

The motion for summary judgment was dismissed.

A contractor commenced an action to enforce payment of the balance owing under a contract for the supply and installation of polyurethane spray foam insulation at an industrial property.

The defendants refused payment alleging extensive overspray damage to equipment and asserting that the balance had been forgiven due to deficient workmanship.

The court found that significant overspray occurred and that the contractor’s workmanship was substandard, but rejected the alleged agreement to forgive the balance and found the defendants had continued using the equipment without remediation while preventing the contractor from attempting cleanup.

Applying a reasonable reduction to account for the deficiencies, the court awarded the contractor a reduced balance of the contract price and dismissed the defendants’ counterclaim.

The contractor was also granted a construction lien for the amount of judgment and partial indemnity costs.

The plaintiffs, private lenders, advanced mortgage funds to the defendants for the purchase of a farm and equipment, secured by a general security agreement (GSA) on the equipment.

The defendant who sold the farm and equipment later removed and sold some of the equipment after the purchasers defaulted and the plaintiffs took possession of the farm.

The plaintiffs sued the seller for conversion and the purchaser for fraudulent misrepresentation.

The court found that property in the equipment passed to the purchaser on closing, giving the plaintiffs a valid GSA.

The seller was found liable for conversion and ordered to pay $35,533 in damages.

The claims against the purchaser and the seller's counterclaim and crossclaim were dismissed.