Geoffrey Cullwick

The plaintiff landlord sought to continue an ex parte injunction preventing the defendant tenant from removing equipment, including an external HVAC unit and generator, from the leased premises.

The tenant argued it had paid for the equipment and had the right to remove it.

The court found a serious issue to be tried regarding the ownership of the equipment and whether it constituted fixtures or trade fixtures.

The court concluded that the balance of convenience favoured leaving the external HVAC unit and generator in place pending the litigation, effectively granting a preservation order, while noting that damages would be an adequate remedy for equipment already removed.

The plaintiff brought a motion to strike the defendant's statement of defence and counterclaim due to the defendant's failure to comply with disclosure obligations, attend examinations for discovery, and comply with a prior court order.

The defendant, who was self-represented, failed to attend the motion.

Applying the factors from Falcon Lumber, the court found that the defendant had been given a reasonable opportunity to cure his non-compliance but failed to do so.

The court struck the statement of defence and counterclaim and awarded costs to the plaintiff.

The plaintiff franchisor sought an interlocutory injunction to enforce restrictive covenants against the defendant franchisee, who had purported to terminate the franchise agreement and opened a competing fitness studio.

The dispute arose after the franchisor implemented a direct-to-consumer online fitness program during the COVID-19 pandemic, which the franchisee alleged constituted a fundamental breach.

The court dismissed the motion, finding that while there was a serious issue to be tried regarding fundamental breach, the franchisor failed to establish a strong prima facie case, and the balance of convenience did not favour granting the injunction given the imminent expiration of the agreement and the potential loss of livelihood for the franchisee's employees.

The plaintiff, Ocean Dredging DM Inc., brought a motion for an interlocutory injunction to prevent the defendant, Kehoe Marine Construction Ltd., from breaching a Memorandum of Understanding (MOU) and to compel the defendant to negotiate subcontracts for a marine dredging project.

The court found that the relief sought was mandatory in nature, requiring a strong prima facie case.

The court dismissed the motion, concluding that the MOU was an agreement to negotiate with many outstanding terms, the plaintiff failed to demonstrate irreparable harm, and the balance of convenience favoured the defendant.

Following the dismissal of the plaintiff's motion for an injunction, the court determined the costs of the motion.

The plaintiff argued costs should be in the cause, while the defendants sought substantial indemnity costs payable forthwith.

The court applied the presumptive 'pay as you go' rule under Rule 57.03, finding no reason to depart from it.

The court rejected the request for substantial indemnity costs, finding the motion was not frivolous or an abuse of process.

Partial indemnity costs totaling $44,000 were awarded to the various defendants, with payment extended due to the COVID-19 pandemic.

The defendant general contractor brought a motion for security for costs against the plaintiff subcontractor in a construction lien action.

The defendant first sought leave under s. 67(2) of the Construction Lien Act.

The court granted leave, finding it necessary to achieve procedural fairness as the defendant had posted security to vacate the lien.

The court found good reason to believe the corporate plaintiff had insufficient assets in Ontario based on admissions that it was no longer performing mechanical work.

The plaintiff failed to prove sufficient assets or a good chance of success on the merits.

The court ordered the plaintiff to post $50,000 in security for costs in installments.

The plaintiff brought a motion for an interlocutory injunction to prevent former employees and their new competing businesses from soliciting its customers.

The court dismissed the motion, finding that the plaintiff failed to establish a strong prima facie case, as the non-competition agreements were either expired or likely unenforceable.

Furthermore, the court found no irreparable harm, concluding that damages would be an adequate remedy if the plaintiff ultimately succeeded at trial.

The plaintiff obtained a certificate of pending litigation (CPL) on a motion without notice against properties owned by corporations controlled by his son, alleging the son misappropriated funds while acting as his attorney for property.

The defendants moved to set aside the CPL for failure to make full and fair disclosure, or alternatively to discharge it under the Courts of Justice Act.

The court found that while the plaintiff failed to disclose material facts regarding the son's legal representation, the CPL would have been granted regardless.

The court also declined to discharge the CPL, finding a triable issue regarding the plaintiff's interest in the properties and that the balance of equities favoured maintaining the CPL.