Geoffrey Michael Cullwick

The applicants sought to set aside an arbitral award under section 46 of the Arbitration Act, 1991, and moved for leave to introduce fresh evidence.

The court found that the fresh evidence was not relevant to the issues before the arbitrator and would not have affected the outcome.

The application was dismissed as an impermissible appeal of the merits of the arbitration, as the parties had excluded any right of appeal in their agreement.

The court confirmed that section 46 provides only limited grounds for setting aside an award and is not a substitute for an appeal.

Costs were awarded to the respondent.

Lukus Abraham, the successful applicant in a prior arbitration enforcement application, sought substantial indemnity costs.

The respondents, Andrew Abraham and A. Abraham Holdings Ltd., argued for partial indemnity costs.

The court declined to award substantial indemnity costs based on the respondents' conduct, finding it not egregious.

However, the court awarded partial indemnity costs up to the date of Lukus's Rule 49.10 offer to settle, and substantial indemnity costs thereafter, as the result obtained was as favourable as the offer.

The court fixed costs at $34,000, all-inclusive, to be paid by the respondents within 30 days.

This case concerns an appeal from an arbitration award.

The applicants appealed an arbitrator's decision that found the respondent was entitled to 50% of corporate shares based on proprietary estoppel.

The court granted leave to appeal and set aside the arbitrator's award.

The court held that proprietary estoppel in Ontario is currently limited to interests in land and cannot be extended to other forms of property, such as shares, by an arbitrator.

Furthermore, the court found that the email on which the proprietary estoppel claim was based was internally inconsistent, ambiguous, and conditional, thus failing to meet the requirement for a clear and unequivocal promise.

The respondent's claim was dismissed.

Lukus Abraham applied to enforce an arbitration award against Andrew Abraham and A. Abraham Holdings Ltd. The award stemmed from a settlement agreement breach, where Andrew ceased payments.

Andrew sought to set aside the award and appeal, alleging procedural unfairness and errors in quantum calculation.

The court found Andrew's arguments to be substantive attacks on the arbitrator's findings, which were immune from appeal under the arbitration agreement, rather than valid procedural fairness issues under s. 46 of the Arbitration Act, 1991.

The court also dismissed Andrew's attempts to introduce new evidence and an equitable set-off argument due to different parties.

The application to enforce the award was granted, with the court noting the relative hardship weighed in favor of enforcement.

Sean Kearney applied without notice to register a New Brunswick Court of King's Bench judgment in Ontario under the Reciprocal Enforcement of Judgments Act.

The judgment arose from a consent order in a New Brunswick proceeding where Collard Properties Inc. was the original applicant and had consented to the terms.

The court found that Kearney was entitled to proceed without notice as Collard Properties Inc. had submitted to the original court's jurisdiction and was involved in the underlying proceedings.

The court also found that none of the exceptions under s. 3 of the Act applied, as the original court had jurisdiction, the judgment debtor had submitted to jurisdiction, the judgment was not obtained by fraud, no appeal was pending, public policy was not violated, and no good defence existed.

The application was granted, and costs were awarded to Kearney.

The appellant, Luigi Falsetto, appealed a lower court decision that rejected his claim for a purchase money resulting trust over a 50% interest in a property legally titled to his son and former daughter-in-law.

Luigi had provided half the purchase funds and borne half the expenses, intending the property as an investment.

The daughter-in-law was placed on title to avoid a merger of titles under the Planning Act.

The application judge found Luigi intended a gift, but the Court of Appeal found this an error of law and fact.

The Court held that the presumption of resulting trust applied, and the intention to avoid statutory consequences did not negate the actual intention to retain a beneficial interest, especially given the overwhelming evidence of an investment purpose and ongoing financial contributions.

The defendant brought a motion under section 47 of the Construction Act to discharge a construction lien registered by the plaintiff, alleging it was registered out of time due to contract abandonment.

The court addressed whether the enhanced powers of Rule 20 of the Rules of Civil Procedure (weighing evidence, assessing credibility) apply to section 47 motions, concluding they do not.

Finding multiple triable issues regarding the timing of contract abandonment, the court dismissed the defendant's motion.

The plaintiff, Digital Business Systems Inc. (DBS), sought costs on a substantial indemnity scale following the settlement of its motion for injunctive relief against the defendants, Documents XMA Inc., Jean-Francois Roberge, and Cynthia Martin.

The motion concerned alleged breaches of a mutual non-solicitation agreement and misuse of confidential information after a former DBS employee joined XMA.

The court found DBS had a strong prima facie case, the defendants' pre-litigation conduct was egregious, and DBS achieved significant success on the substantive issues.

The court awarded DBS costs on a substantial indemnity scale, fixed at $28,395, payable forthwith.

This is an appeal of an arbitration award concerning the beneficial ownership of shares in a company.

The arbitrator had found that an email created an express trust, granting the respondent 50% of the applicant's personal shares.

The court granted leave to appeal, finding that the arbitrator erred in law by allowing the email to overwhelm the terms of a formal trust agreement.

The court varied the arbitrator's decision, ruling that only the formal Burwell Family Trust existed and the email did not create a separate express trust for the personal shares.

The court upheld the arbitrator's jurisdiction regarding the scope of the arbitration and his decision on the Limitations Act.

The issue of proprietary estoppel was remitted back to the arbitrator for determination and final disposition.

Luigi Falsetto sought a declaration that his former daughter-in-law, Paula Falsetto, held her interest in a property (415 Lisgar Street) in trust for him, based on a purchase money resulting trust.

The property was acquired jointly by Paula and Luigi's son, Albert, to avoid merger under the Planning Act.

Luigi paid the down payment and closing costs.

The court dismissed the application, finding that Luigi intended to gift the beneficial ownership to Paula to achieve the Planning Act purpose, thereby rebutting the presumption of a resulting trust.

A preliminary motion by Luigi to admit a late affidavit was also dismissed due to tangential relevance, non-compensable prejudice, and an unsatisfactory explanation for the delay.

EBC Inc. brought an application seeking declarations and payment from the City of Ottawa for unpaid holdback funds, a contract credit, and interest on allegedly late payments and arbitration awards related to a design-build contract for the Ottawa Art Gallery expansion and Arts Court redevelopment.

The court dismissed the claims for holdback funds, finding the application statute-barred by the Limitations Act, 2002, and that EBC failed to use the proper dispute resolution process.

The claim for the contract credit was also dismissed, as the court found the Amendment Agreement was a valid Change Order and the City's deduction was lawful.

The court granted a partial claim for interest, finding interest was payable on a Phase 1 arbitration award as per the contract, but dismissed interest claims related to settlements or invoices paid promptly after completion.

The Trustee in bankruptcy brought a motion to enforce a settlement agreement with the bankrupt's former spouse, Sonya Tessier, regarding the proceeds from the sale of a jointly owned property.

The Trustee had been discharged but had registered its interest on the property's title prior to discharge.

Ms. Tessier argued the Trustee lacked standing without reappointment and that the settlement should not be enforced due to her lawyer's alleged lack of instructions and resulting prejudice.

The court reappointed the Trustee nunc pro tunc, finding it had the inherent authority to do so to safeguard creditors' interests.

The court enforced the settlement agreement, determining it was binding and that Ms. Tessier failed to demonstrate compelling circumstances to justify setting it aside, rejecting her arguments regarding the "fresh start philosophy" and alleged prejudice.

The defendants, EBC Inc. and Guarantee Company of North America, brought a motion for security for costs against the plaintiff, Bolton Mechanical Inc., in a "bond action" that was substantively duplicative of a prior "lien action." In the lien action, security for costs had already been ordered against Bolton due to insufficient assets.

The court dismissed the current motion, finding that the issues added by the bond action were insignificant and that the defendants' delay in bringing the motion was tactical, amounting to a collateral attack on the prior order.

The applicant, a commercial tenant, sought relief from forfeiture, an order compelling arbitration, and rent abatement after the respondent landlord issued a notice to quit upon the expiration of their lease.

The court found that relief from forfeiture was unavailable because the lease had expired by its terms, not due to a breach or default by the tenant.

The court also determined that the parties had abandoned their agreement to arbitrate by failing to appoint an arbitrator within the stipulated timeframe.

Consequently, the claims for arbitration and rent abatement, which was an issue for arbitration, were dismissed.