Douglas G. Christie

This decision addresses two related appeals.

In the main appeal (C70874), Physicians’ Dialysis Center Inc. (PDC), and Drs.

George Wu and Gordon Wong appealed a trial judgment that found them unjustly enriched at the expense of Drs.

Perkins and Boll, and liable for general and punitive damages due to abuse of trust and breach of fiduciary duty.

The appellants argued errors in the interpretation of a Memorandum of Understanding (MOU) concerning compensation for clinic space and services, and that the claims were statute-barred.

The Court of Appeal dismissed this appeal, upholding the trial judge's findings on unjust enrichment, contract interpretation (clarifying payments were for overhead, not extra billing), and the application of the limitations period.

In the second appeal (COA-22-CV-0392), Dr. Donald Kim appealed the denial of his share in interpleaded funds, and this appeal was granted.

Following an 11-day trial where the plaintiffs were successful, the court determined the quantum and scale of costs.

The plaintiffs had made multiple offers to settle that were more favourable than the trial judgment.

Applying Rule 49.10(1) and Rule 57.01(1), the court awarded the plaintiffs costs on a substantial indemnity basis fixed at $724,850.49, noting the defendants' unreasonable positions during the litigation.

Several nephrologists practiced together in a partnership and provided services at a hospital.

The hospital paid funds to a corporation controlled by three of the partners, excluding two other partners from their share.

The excluded partners discovered this arrangement and sued for unjust enrichment and breach of fiduciary duty.

The court found that the defendants were unjustly enriched and ordered them to pay compensatory damages based on the plaintiffs' proportionate contributions to overhead, as well as punitive damages for abusing their positions of trust.

The defendant appealed an Associate Justice's order dismissing his motion for security for costs.

The defendant argued the Associate Justice erred by not drawing an adverse inference from the plaintiff's failure to respond to a Rule 56.02 demand and by misapprehending evidence regarding the plaintiff's assets and residency.

The Superior Court dismissed the appeal, finding no palpable and overriding error in the Associate Justice's conclusion that the defendant failed to meet the initial burden under Rule 56.01.

The costs award of $8,000 to the plaintiff was also upheld.

The applicants, Dr. David Perkins and Dr. Philip Boll, sought court approval of a partial settlement agreement (Pierringer agreement) with Dr. Arturo Wadgymar and Dr. Donald Kim.

The non-settling parties, Physicians’ Dialysis Centre Inc., Dr. George Wu, and Dr. Gordon K. T. Wong, neither consented to nor opposed the motion.

The court, having served as case management judge and reviewed the material, found that the agreement did not cause unfairness or prejudice to the non-settling parties and was in the interests of justice.

The court approved the agreement, confirming it does not alter the adversarial position of the parties or impair the applicants' ability to pursue claims against the non-settling parties.

The defendant brought a motion for security for costs under Rule 56.01(1) of the Rules of Civil Procedure, arguing the plaintiff corporation had insufficient assets in Ontario, resided outside Ontario, and brought a frivolous action.

The court dismissed the motion, finding the defendant failed to meet the initial onus of showing a good reason to believe the plaintiff lacked sufficient assets or resided outside the province.

The court also found the action was not obviously frivolous, as there was documentary evidence corroborating the plaintiff's claim of an oral profit-splitting agreement.

The defendant brought a successful motion to stay a 2019 action as an abuse of process and to consolidate it with a 2017 action.

The defendant sought costs on a substantial indemnity basis, citing a Rule 49 offer, the plaintiff's lack of good faith, and uncooperative conduct.

The court declined to award substantial indemnity costs, finding it appropriate to clear the costs slate and apply normal principles.

Costs were awarded to the defendant on a partial indemnity basis in the amount of $70,000.

The minority shareholder of a family company commenced an action for an oppression remedy and asserted a derivative claim without obtaining leave.

The minority shareholder's holding company later commenced an action in debt against the family company.

The defendant in the first action moved to stay the second action as an abuse of process.

The court dismissed the motion to stay, instead ordering the two actions consolidated.

However, the court struck the derivative claim without leave to amend, finding it misconceived, ill-advised, and not brought in good faith.

The plaintiffs appealed a motion judge's order refusing to validate late service of their Statement of Claim.

The plaintiffs had made diligent but unsuccessful efforts to serve the evasive defendant within the six-month period.

The motion judge had found on separate motions that neither party proved their case regarding prejudice.

The Court of Appeal allowed the appeal, holding that the motion judge's findings were irreconcilable and that the plaintiffs had discharged their onus to show no prejudice, especially since the defendant provided no details of any alleged prejudice.

Service was validated.

The appellants appealed a trial judgment concerning a business purchase agreement that was terminated before completion.

The trial judge found that a $100,000 deposit paid by the appellant toward a $500,000 purchase price was to be retained by the respondent pursuant to a termination agreement entered into by the parties.

The trial judge found no legal fault on either side and concluded that the parties' intention in the termination agreement was that the deposit remain with the respondent.

The Court of Appeal found no palpable and overriding error in the trial judge's interpretation and dismissed the appeal.

Following the dismissal of the plaintiff's motion for summary judgment, the successful defendant sought costs of $25,526, including a request that costs be paid personally by the plaintiff's counsel.

The court found the requested amount disproportionate to the issue and time incurred, and declined to order costs against counsel personally.

The court fixed costs at $3,500 inclusive of disbursements and taxes, payable by the plaintiff.

The appellants appealed an order regarding disclosure and examination of garnishees.

The Court of Appeal dismissed the appeal for lack of jurisdiction, finding that the order under appeal was interlocutory rather than final, as it did not dispose of the appellants' rights on a final basis.

Costs of $8,500 were awarded to the garnishees on a partial indemnity basis.

Following a lengthy commercial dispute and trial judgment, the defendants wrote to the court alleging a calculation error in the trial decision and seeking informal remediation without bringing a formal motion.

The court considered whether to exercise its authority under r. 59.06(1) of the Rules of Civil Procedure to amend, set aside, or vary the order.

Emphasizing the strong policy of finality in litigation and the narrow scope of the rule, the court held that such powers should only be exercised in exceptional circumstances.

The proposed recalculation was considered too complex and inappropriate to undertake at that late stage.

The court declined to revisit the judgment and noted the parties had remedies elsewhere.

Judgment creditors brought a motion seeking production of a law firm’s books, trust records, bank statements, and documents relating to mortgages held in trust for the debtor, and asserted that the mortgage interests themselves were garnishable debts.

The court considered whether mortgage interests held in trust constituted “debts payable” under r. 60.08 of the Rules of Civil Procedure and whether the requested records could be compelled under r. 60.18(6).

The court held that a mortgage interest in land is not a liquidated money demand and therefore not a debt subject to garnishment until converted into money.

It further held that the broad documentary disclosure sought would breach solicitor-client privilege and no recognized exception justified disclosure.

The motion was dismissed.

Following dismissal of a motion seeking to vary a consent judgment and amend a statement of claim, the court determined costs payable to the successful defendants.

One defendant sought costs payable forthwith, while the plaintiff argued any award should be set off against an outstanding amount owed under a prior consent judgment.

The court held that the costs award and the debt under the consent judgment were liquidated mutual obligations, requiring legal set‑off.

Costs payable to that defendant were therefore credited against the amount owed under the consent judgment, while costs payable to the other defendant were ordered payable forthwith.

The court also assessed the reasonable quantum of costs under Rule 57.01 of the Rules of Civil Procedure.

Following a lengthy oppression remedy trial involving a shareholder dispute in a real estate investment company, the court determined the appropriate costs award and interest payable after judgment.

The plaintiffs sought substantial indemnity costs exceeding $1.3 million, alleging reprehensible litigation conduct by the defendants.

The court rejected the request for elevated costs and held that partial indemnity costs were appropriate, emphasizing proportionality, the plaintiffs’ limited success compared to the amounts claimed, and duplication resulting from multiple counsel.

The court also addressed costs related to several pretrial motions, expert witness fees, and disbursements, reducing certain expert accounts and awarding the defendants $5,000 for a post‑judgment remediation motion.

Prejudgment and postjudgment interest were fixed under the Courts of Justice Act.

The plaintiff moved to vary a consent judgment arising from a three-party settlement and to lift a stay imposed on his separate action after the First Nation defendant defaulted on later settlement instalments.

The court held that a consent judgment may be rectified only on grounds going to the formation of the underlying agreement, not merely because of subsequent non-performance, and found no evidence of fraud, mistake, or other vitiating factor.

Relief was also unavailable under Rule 49.09 because the settlement had merged into the consent judgment, and the court declined to invoke inherent jurisdiction to rewrite a bargain negotiated with counsel.

The motion was dismissed, leaving the plaintiff to pursue enforcement remedies under the existing judgment.

The plaintiffs moved to amend post-trial reasons to obtain a formal adjudication of the phrase “the necessary funds” in a shareholders’ agreement, or alternatively to recalculate share value by treating cash calls entirely as equity.

The court held that the requested procedure was inappropriate because the moving parties had appeal rights and the authorities relied on were distinguishable.

The court further observed that the interpretation now advanced had been implicitly rejected, was not grounded in the trial record, was not within the parties’ reasonable contemplation when negotiating the agreement, and was not reflected in the pleadings.

The alternative valuation argument was also rejected because it had been abandoned at trial and was inconsistent with the moving parties’ prior position.

The motion was dismissed with costs.

The plaintiff, a minority shareholder in a closely held real estate joint venture, brought an oppression action against the majority shareholders.

The dispute arose after the plaintiff was forced to resign as a director following allegations of misappropriating a minor corporate opportunity.

Subsequently, the defendants made two cash calls and granted a mortgage that significantly diluted the plaintiff's interest in the corporation.

The court found that the defendants' actions, particularly the granting of a mortgage for an amount greater than the corporation's immediate needs, unfairly disregarded the plaintiff's interests and constituted oppression under s. 248 of the OBCA.

The court ordered the defendants to buy out the plaintiff's shares at a valuation of $858,468.31, awarded the plaintiff a portion of a deferred management fee, and ordered two of the defendants to pay $25,000 in punitive damages for their reprehensible conduct.

The appellants appealed a motion judge's declaration that an option agreement was valid.

The appellants argued the agreement failed to comply with s. 50(21) of the Planning Act because it did not expressly refer to s. 50, but only to the Act in general.

The Court of Appeal dismissed the appeal, holding that making the agreement conditional upon compliance with the Act as a whole was sufficient to satisfy the statutory requirement, as it is impossible to comply with the Act without complying with s. 50.