Duncan M. Macfarlane

The defendants brought a motion to enforce Minutes of Settlement, alleging the plaintiff failed to produce certain financial information and was responsible for specific payments.

They also wrongly accused the plaintiff of theft.

The plaintiff, through substantial investigation, proved that nothing was owing and no documents were missing.

The court found the defendants' claims unfounded and awarded the plaintiff costs on a substantial indemnity scale, totaling $59,000.00, payable from funds held in trust by the defendants' counsel.

The decision emphasized that the costs award compensates the successful party without exceeding the unsuccessful party's reasonable expectations, as per Rule 57.01(1)(0.a) and (0.b) of the Rules of Civil Procedure.

The defendants brought a motion to enforce Minutes of Settlement, alleging the plaintiff failed to provide financial information and was responsible for certain payments related to a Florida property.

The plaintiff argued that she had provided all documents and that the financial claims pertained to a subsequent period of employment not covered by the Minutes.

The court found no evidence of missing documents and determined that the financial obligations under the Minutes only covered pre-settlement expenses, which were below the agreed-upon ceiling.

The motion was dismissed, and the court declined to order the release of trust funds held for potential future tax liabilities.

In a supplemental endorsement following a successful derivative action, the court clarified the award of prejudgment interest and costs.

The court awarded prejudgment interest at the prescribed rate from the date the action was regularized.

The court rejected the third parties' request for full indemnity costs under the Business Corporations Act, confirming the previous partial indemnity award of $125,000, but clarified that the costs are payable solely to the third parties who funded the litigation, rather than jointly with the plaintiff company.

Following a trial where the plaintiff was awarded damages for breach of fiduciary duty in a derivative action, the successful plaintiff and third parties sought full indemnity costs.

The court declined to award elevated costs, finding the defendants' conduct did not rise to the level of reprehensible, scandalous, or outrageous.

The court awarded partial indemnity costs of $125,000, rejecting the defendants' argument that costs should be denied for failing to beat the simplified procedure threshold.

In a derivative action brought on behalf of a real estate investment company, the plaintiff alleged that the defendants, who were equal shareholders and officers, misappropriated corporate funds while managing the company's properties.

The court found the defendants breached their fiduciary duties under the Business Corporations Act by misappropriating rent payments, retaining insurance claim proceeds, and taking unequal advances that reduced a shareholder loan.

The court ordered the defendants to pay $87,048.57 in compensatory damages to the corporation.

Claims for punitive damages and a third-party action against the other shareholders were dismissed.

The applicant insurers applied for judicial review of an Umpire's decision under s. 128(3) of the Insurance Act regarding the value of a loss following a house fire.

The Umpire valued the Actual Cash Value at $338,800, which significantly exceeded both the insured's appraisal of $210,000 and the insurer's appraisal of $185,000.

The Divisional Court found the Umpire's decision unreasonable as it exceeded the range of possible acceptable outcomes and lacked reasons to justify the departure from the policy provisions.

The decision was set aside and the matter remitted to a new Umpire.

The plaintiff claimed indemnity under an insurance policy, alleging its apartment building was structurally damaged by the Ladysmith Earthquake.

The defendant insurer denied the claim, arguing the earthquake did not cause the damage.

After a seven-day trial featuring extensive expert testimony on seismology and structural engineering, the court found the earthquake's force was negligible and insufficient to cause the damage.

The court concluded the structural issues were caused by differential soil settlement and dismissed the plaintiff's action.

Following the release of a decision on the merits, the successful applicant sought substantial indemnity costs of $20,209.81.

The respondent argued for no costs or, alternatively, costs fixed at $8,000.

Applying Rule 57.01(1) and the principles from Boucher, the court found the issues were not complex but were important to the applicant.

The court awarded partial indemnity costs to the applicant fixed at $15,000 inclusive of disbursements and HST.

The applicant sought a stay pending appeal of an order requiring her to discharge a certificate of pending litigation registered against a residential property.

The application judge had found no valid agreement of purchase and sale existed between the parties and ordered the applicant to discharge the CPL.

The Court of Appeal granted the stay, finding the applicant met the RJR-MacDonald test: she raised serious issues on appeal, demonstrated irreparable harm based on the property's unique custom-built nature, and the balance of convenience favoured granting the stay given the respondent's lack of evidence regarding prejudice from the CPL's continued registration.

This decision addresses two cross-applications concerning the validity of an Agreement of Purchase and Sale for real property.

The court found no consensus ad idem between the parties due to uninitialed amendments made by the purchaser and differing interpretations of material terms, particularly regarding kitchen cabinetry suppliers.

Consequently, the Agreement of Purchase and Sale was declared null and void, the purchaser's request for specific performance was dismissed, and the vendor's request for an injunction against encumbrance was implicitly granted by ordering the discharge of the Certificate of Pending Litigation.

The vendor was ordered to return the deposit with interest.

This decision addresses two cross-applications concerning the validity of an Agreement of Purchase and Sale for real property.

The court found no consensus ad idem between the parties due to uninitialed amendments made by the purchaser and differing interpretations of material terms, particularly regarding kitchen cabinetry suppliers.

Consequently, the Agreement of Purchase and Sale was declared null and void, the purchaser's request for specific performance was dismissed, and the vendor's request for an injunction against encumbrance was implicitly granted by ordering the discharge of the Certificate of Pending Litigation.

The vendor was ordered to return the deposit with interest.

In an estates motion between siblings who were co-estate trustees, the applicant sought an order compelling the respondent to pass formal accounts for the period she acted under a power of attorney for property and to produce bank records for several accounts in which she held an interest.

The court held that the respondent was a fiduciary under the Substitute Decisions Act, 1992 and had a strict obligation to keep accounts, but found that the modest estate did not warrant a formal passing of accounts.

Applying the discretionary approach described in McAllister Estate, the court concluded that disclosure of financial records was sufficient to address the concerns raised about management of the deceased's affairs.

The motion was therefore dismissed in part and granted in part, with production ordered within 90 days and costs reserved.

A mortgagor sought a declaration requiring the mortgagee to execute a discharge of mortgage upon payment following exercise of a contractual prepayment option in a mortgage extension agreement.

The mortgagee argued that the borrower’s notice of prepayment was late, failed to comply with a 75‑day notice requirement, and was given in bad faith.

The court interpreted the prepayment provisions and found ambiguities regarding the timing of the borrower’s option to prepay.

Applying a reasonable interpretation of the agreement, the court held that the borrower’s notice given on the final day of the six‑month prepayment window was valid.

The mortgagee was therefore required to discharge the mortgage upon payment of the agreed payout amount.

The appellants challenged a judgment holding the mortgagor and certain original guarantors liable for a mortgage deficiency after sale under power of sale.

The central dispute concerned whether an extension agreement entered into with a subsequent purchaser discharged the guarantors, including under s. 9(4) of the Land Registration Reform Act and principles of novation.

The majority dismissed the appeal, holding the extension agreement did not extinguish the guarantors' liability, but allowed the lender's cross-appeal by restoring the $75,000 reduction and awarding solicitor and client costs.

A partial dissent would have allowed the guarantors' appeal on the basis that the extension discharged them.