Evan L. Tingley

The defendant brought a motion for summary judgment on its counterclaim arising from a mortgage given as security for the assignment of another mortgage.

The plaintiffs alleged that the defendant made misrepresentations about encumbrances on the underlying property and that the agreement did not reflect what was promised.

The court held that the alleged subsequent encumbrances did not materially affect the plaintiffs’ priority or interest, and therefore could not constitute actionable misrepresentations.

The court also found that the handwritten agreement and related oral representations merged into the registered mortgage and that the involvement of independent counsel defeated any non est factum argument.

Finding no genuine issue requiring a trial, the court granted summary judgment on the counterclaim.

Following summary judgment in favour of a bank on a personal guarantee for corporate indebtedness, the court determined the costs of the action.

The bank had delivered a written offer to settle under Rule 49 that proposed payment of the principal amounts claimed, reduced interest, and partial indemnity costs.

The court found the offer complied with Rule 49.10 of the Rules of Civil Procedure and that the bank achieved a result more favourable than its offer.

Accordingly, the bank was entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

Costs were fixed at $33,000 inclusive of disbursements and HST, payable forthwith by the guarantor defendant.

Two subcontractors registered construction liens for unpaid work on a residential construction project.

The court considered whether the liens were preserved within the 45‑day statutory period under the Construction Lien Act based on the date of last supply of services or materials.

After reviewing the evidence, the court found that neither subcontractor proved that qualifying work occurred within the preservation period, and both liens had therefore expired.

The subcontractors also advanced alternative claims for restitutionary quantum meruit against the owners.

The court rejected those claims, holding that unjust enrichment remedies against owners would undermine the statutory construction lien regime where contractual relationships and lien remedies already governed the parties’ rights.

The moving party law firm brought a motion for directions, seeking payment of its solicitor's accounts from the Estate and the removal of the estate trustee.

The law firm argued it was retained by the Estate or, alternatively, was entitled to compensation on a quantum meruit basis for acting as a 'lawyer of necessity'.

The court dismissed the motion, finding that the Estate had terminated its retainer with the law firm in 2009 and never re-retained it.

The court also held that the law firm lacked standing under Rules 74 and 75 of the Rules of Civil Procedure and s. 50 of the Estates Act because it was not a creditor and had no financial interest in the Estate.

The quantum meruit claim failed as the services were not requested or acquiesced to by the Estate, and there was no basis to remove the estate trustee.

In a long-running wrongful dismissal and unjust enrichment action, the self-represented plaintiff moved to recuse the case management master on the basis of alleged systemic bias arising from case management decisions and the handling of repeated procedural disputes.

Applying the objective reasonable apprehension of bias test, the court held that the threshold for disqualification is high, particularly in the case management context, and that allegations alone are insufficient.

The court found no cogent evidence that the judicial officer was incapable of impartial adjudication or was no longer open to persuasion by evidence and submissions.

The recusal motion was dismissed.

The plaintiff bank brought a motion for summary judgment against a corporate director on his personal guarantee of the corporation's indebtedness.

The guarantor argued he was released from liability because he verbally resigned, another director forged his signature to misappropriate funds, and the bank altered the credit agreement without his consent.

The court granted summary judgment, finding the guarantee required written notice of termination, the corporation failed to implement safeguards against forgery as required by the banking agreement, and the guarantee contained an absolute liability clause permitting alterations to the principal contract.

In supplementary reasons addressing costs following earlier reasons under the Companies’ Creditors Arrangement Act, the applicant mortgage lender sought full indemnity costs based on contractual mortgage provisions.

The court confirmed that while contractual entitlement to full indemnity costs exists, the court retains supervisory authority to ensure the amounts claimed are fair and reasonable.

The applicant’s bill of costs was reduced for inefficiencies, including excessive research time and the use of senior counsel for work that could have been delegated or billed at a lower rate.

Additional reductions were made for excessive preparation time on reply materials.

The court ultimately fixed reasonable full indemnity costs and rejected arguments for further reductions based on partial success or for awarding costs to another resisting respondent.

The appellant partnership appealed a trial judgment dismissing its action and awarding the respondent former partner damages on his counterclaim.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's calculation of goodwill attributable to the respondent's capital account, his conclusion regarding the equity of subsidiaries, or his calculation of goodwill for retained clients.

The plaintiff brought a motion for leave to appeal a decision of the motions judge, who had dismissed a civil contempt motion and refused to strike two affidavits.

The plaintiff argued he was denied the opportunity to cross-examine on the affidavits.

The Divisional Court dismissed the motion, finding the plaintiff had ample opportunity to seek cross-examination prior to the hearing.

The court held that the motions judge correctly applied the test for civil contempt, there was no conflicting jurisprudence, no reason to doubt the correctness of the order, and the proposed appeal did not involve matters of public importance.

Leave to appeal the costs order was also denied.

Costs of the motion were fixed at $3,500 against the plaintiff.

The defendants moved under Rule 21 of the Rules of Civil Procedure, s. 106 of the Courts of Justice Act, and s. 7(1) of the Arbitration Act, 1991 to stay an Ontario action arising from a commercial distribution agreement.

The agreement contained a clause selecting German law and requiring binding arbitration through the Frankfurt Chamber of Commerce for “any disputes.” The court held that such forum selection and arbitration clauses are presumptively enforceable and that the plaintiff bears the burden of demonstrating “strong cause” to avoid enforcement.

The plaintiff’s allegations of egregious contractual and tortious conduct did not constitute strong cause, as merits‑based arguments cannot defeat a forum selection clause.

The court further held that the clause applied to related tort claims and to individual defendants whose alleged conduct was intertwined with the contractual dispute.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellants were awarded costs for the motion in the amount of $15,000 against one respondent and $10,000 against the other.

The appellants were also awarded costs for the appeal in the amount of $12,000 against each respondent, for a total costs award of $49,000 inclusive of disbursements and taxes.

The appellant purchaser entered into an agreement to buy a townhouse but failed to close the transaction due to financial difficulties.

The vendor retained the $35,000 paid by the appellant as a forfeited deposit.

The appellant sued for the return of the funds, claiming relief from forfeiture, but the trial judge dismissed the action.

On appeal, the Divisional Court upheld the trial judge's finding that the appellant did not act reasonably and was therefore not entitled to relief from forfeiture.

The appeal was dismissed, with a dissenting opinion arguing that the payments were not explicitly defined as a deposit in the main agreement.

The plaintiff RCI entered into an agreement to manufacture and install assembly lines for TMG in Ontario.

TMG later substituted its subsidiary TMC as the purchaser, allegedly providing assurances alongside its bank, Sparkasse, that they would guarantee payment.

When TMC failed to pay, RCI sued TMG and Sparkasse in Ontario for breach of contract and negligent misrepresentation.

The motion judge stayed the action, finding no jurisdiction simpliciter and that Ontario was forum non conveniens.

The Court of Appeal allowed the appeal, holding that Ontario had jurisdiction simpliciter based on the tort and contract occurring in Ontario, the forum selection clauses did not apply to the guarantee claims, and the defendants failed to show Germany was clearly a more appropriate forum.

A dispute arose following the termination of a partner’s membership in a law firm regarding amounts owing under a partnership agreement.

The issues concerned the proper calculation of the departing partner’s capital accounts, including goodwill and subsidiary equity, and the value of work in progress and accounts receivable assigned to the departing partner.

The court interpreted the partnership agreement to determine capital entitlements and the deductions applicable to assigned WIP and A/R. After calculating both parties’ entitlements and obligations and applying a limitation period concession, the court concluded that only half of the net amount owing to the departing partner was recoverable.

Judgment was granted for the defendant for the recoverable portion.

The plaintiff vendor brought a motion for summary judgment against the defendant purchasers for failing to close a real estate transaction.

The defendants argued there was an oral collateral agreement making the purchase conditional on financing.

The court found no genuine issue requiring a trial, noting the written agreement explicitly excluded collateral agreements and the defendants failed to provide sufficient evidence of the alleged oral condition.

Summary judgment was granted, and the defendants were ordered to pay damages for the difference in the subsequent sale price and carrying costs, plus costs.

Following trial judgment awarding damages for breach of a software services agreement, the court determined prejudgment interest and costs.

The dispute concerned the appropriate start date for prejudgment interest and the reasonable quantum of partial indemnity costs.

The court held that prejudgment interest should run from the date the parties’ relationship effectively ended rather than the earlier project “go-live” date.

Applying the principle of reasonableness and proportionality under the Rules of Civil Procedure, the court reduced the plaintiff’s claimed legal fees by 10% while allowing disbursements in full.

Costs were fixed at $58,103.68 and prejudgment interest ordered at 1.3% from November 28, 2008.

The defendants moved to dismiss or permanently stay an Ontario action on the basis that the court lacked jurisdiction and that Germany was the appropriate forum.

The dispute arose from agreements relating to the manufacture of automotive components and included forum selection clauses designating Germany as the place of jurisdiction and German law as governing law.

The court held that the plaintiffs failed to establish jurisdiction simpliciter because no real and substantial connection to Ontario was demonstrated.

The court further found that the plaintiffs failed to show strong cause to depart from the contractual forum selection clauses.

Applying forum non conveniens principles, the court concluded that Germany was the more appropriate forum.

The plaintiff purchased software from the defendant, who represented that the customer relationship management (CRM) and enterprise resource planning (ERP) modules would fully integrate.

The software failed to integrate due to character limitations and suffered from other functional defects.

The plaintiff sued for breach of contract, negligent misrepresentation, and breach of the Sale of Goods Act.

The court found the individual defendant personally liable, as he had not contracted through his corporation.

The court held the defendant liable for negligent misrepresentation and breach of warranty, assessing the residual value of the defective software at 33.33% and awarding the plaintiff $126,932.35 in damages.

The appellants perfected a construction lien, and the respondent moved to discharge it on the basis that the work was not lienable.

The motion was dismissed, and the respondent appealed to the Divisional Court.

While the decision was under reserve, the two-year period to set the action down for trial under s. 37 of the Construction Lien Act expired.

The respondent successfully moved to have the lien declared expired, which was upheld by the Divisional Court.

The Court of Appeal dismissed the appellants' appeal, holding that the time limits in ss. 37 and 46 are mandatory and are not suspended by a reserved judgment.

The appellants appealed an order of the Divisional Court.

The Court of Appeal for Ontario dismissed the appeal as moot, with no order as to costs.