Derrick M. Fulton

The condominium corporation brought a motion to appoint an arbitrator to resolve the plaintiffs' claims against it, which had previously been stayed in favour of arbitration.

The plaintiffs opposed the appointment, arguing they had not commenced an arbitration and could not be forced to act as plaintiffs.

The court granted the motion and appointed an arbitrator, noting that the condominium corporation was entitled to push forward with the claims made against it to clear its name, and that the arbitrator would determine the process.

The defendant condominium corporation brought a motion to stay the plaintiffs' action against it pending mediation and arbitration under the Condominium Act, 1998 and the Arbitration Act, 1991.

The plaintiffs opposed the stay, arguing that the claims against the condominium corporation were intertwined with the claims against the developer and that bifurcating the proceedings would cause duplication and inconsistent verdicts.

The court found that while bifurcation was unreasonable and risked multiplicity, recent Supreme Court of Canada jurisprudence mandated a stay under section 7 of the Arbitration Act, 1991, as no statutory exceptions applied.

The motion to stay was granted.

The plaintiff brought a motion to set aside a registrar's order dismissing its action for delay and sought leave to maintain the action under the Business Names Act.

The action had been automatically stayed because the plaintiff had failed to register its business name.

The court held that the registrar still had jurisdiction to dismiss the action for delay despite the statutory stay.

However, applying the Reid test, the court set aside the dismissal order, finding that the delay was caused by the inadvertence of the plaintiff's former counsel and that the defendants would not suffer significant prejudice.

The court also granted leave to maintain the action, as the failure to register the business name was an innocent oversight that had since been rectified without misleading the public.

The plaintiff brought a motion for summary judgment for wrongful dismissal, while the defendant employer claimed the plaintiff had resigned.

The court found that the plaintiff was terminated, as his conduct did not objectively reflect a clear and unequivocal intention to resign.

The court awarded a nine-month notice period, unpaid vacation pay, health benefits expenses, and damages for lost bonuses, finding the bonus was an integral part of compensation.

The plaintiff's claim for punitive damages was dismissed.

The moving defendants brought a motion for production of documents relating to two alleged settlements: one between the plaintiff and a co-defendant, and another comprehensive settlement allegedly reached among all parties.

The court dismissed the request for communications between the plaintiff and the co-defendant, as both parties denied reaching a settlement and the communications were protected by settlement privilege.

However, the court granted production of communications purportedly made in furtherance of the alleged comprehensive settlement, applying the exception to settlement privilege that allows disclosure to prove the existence of a disputed settlement.

The landlord and tenant brought competing applications regarding the interpretation of a commercial lease renewal.

The tenant argued the lease renewed automatically, while the landlord argued a 2012 Renewal Agreement required the tenant to give six months' notice.

The court found that the tenant had established a claim for rectification based on unilateral mistake, as the landlord's agent had inserted the notice requirement without instructions and without drawing it to the tenant's attention, which amounted to unconscionable conduct.

The court ordered the lease rectified to reflect an automatic right of renewal.

The defendant, Greg Chew, brought a motion to vary a $50,000 costs award made against the defendants following their unsuccessful motion to disqualify the plaintiff's counsel.

Chew argued that the costs should be apportioned severally, making him liable for only 25%.

The court found it had jurisdiction to amend the order under Rule 59.06(1) because the issue of joint and several liability was not adjudicated in the original endorsement.

Applying the principles from Meady v. Greyhound, the court held that the defendants acted jointly in pursuing the disqualification motion and that no exceptions to the general rule of joint and several liability applied.

The motion to vary was dismissed, and the original order was amended to expressly state that the defendants' liability for costs is joint and several.

The moving party sought summary judgment and additional costs after the responding party accepted a Rule 49 offer to settle for $50,000 stated to include all damages, costs, and interest to date.

The moving party argued that because the offer was silent on costs after the offer date, Rule 49.07(5)(b) entitled it to further costs incurred after the offer.

The court held that the wording of the offer explicitly included costs within the $50,000 amount and therefore disposed of the issue of costs.

As a result, no additional costs beyond the settlement sum were recoverable.

Costs of the motion were instead awarded to the responding party.

The plaintiff commenced an action against his former lawyers for professional negligence, alleging they failed to commence a claim against his insurer for damaged equipment.

The action was struck from the trial list and a status notice was issued.

At the contested status hearing, the court found the plaintiff failed to provide an acceptable explanation for the delay of over seven years and failed to show that the defendants would not suffer non-compensable prejudice.

The action was dismissed for delay.

The defendants brought a motion seeking to disqualify the plaintiff’s counsel on the basis that counsel had allegedly created a lawyer‑client relationship with a self‑represented defendant during settlement communications and obtained confidential information.

The court reviewed a series of emails and a telephone discussion initiated by the defendant proposing settlement and requesting assurances that the discussion would be “without prejudice” and off the record.

The court held that no solicitor‑client relationship or analogous relationship arose because the defendant knew counsel represented the opposing party and voluntarily initiated the communications.

The court further found that no confidential information was imparted and rejected allegations that counsel attempted to coach or solicit false evidence.

The motion was dismissed and the defendants were ordered to pay substantial indemnity costs.

Two conflicting applications were brought in the name of a condominium corporation regarding a board of directors election.

The former board sought to set aside the election results based on alleged proxy tampering, while the newly elected board sought to uphold the results.

The court found that the meeting chair lacked the authority to decertify the election weeks after issuing his final report.

Furthermore, the applicants challenging the election failed to prove that improper proxy tampering occurred or materially affected the outcome.

The court upheld the election results and ordered strict identification and deposit requirements for proxies in future elections.

Costs decision following a successful condominium compliance application.

The applicant sought full indemnity costs after obtaining a ruling that another unit owner's use of a condominium unit as an accounting office contravened the declaration and that part of the declaration conflicted with the Condominium Act, 1998.

Respondents argued that the dispute involved novel issues, internal board conflicts, and that mediation had been offered but refused.

The court applied the discretion under s. 131 of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure.

Partial indemnity costs of $4,900 were awarded against two respondents jointly and severally.