George Limberis

The court found that Empire Steel Inc. breached its sublease with AZZ Galvanizing Canada Limited by overcharging for hydro, contrary to the contractual requirement to pass on only the actual cost of utilities.

Empire’s attempt to justify the overcharges by reference to alternative agreements and a retroactive TMI reconciliation was rejected as lacking credibility and good faith.

The court awarded AZZ $418,876 for hydro overcharges, subject to a $20,000 set-off for outdoor storage, and dismissed all other counterclaims and crossclaims.

This is an appeal concerning the interpretation of an assignment agreement related to parking lot revenue.

The appellant, 200 Ferrand Realty Limited, and the respondent, 1284225 Ontario Limited, shared revenue from a parking lot. 1284225 Ontario Limited, despite having assigned its rights, attempted to negotiate new parking rates with the parking space provider.

The application judge implied a term into the parking agreement granting 1284225 Ontario Limited participative status in rate setting, without providing parties an opportunity to be heard on this issue.

The Court of Appeal allowed the appeal, finding no basis for the implied term, and held that 1284225 Ontario Limited, not being a party to the parking agreement, had no right to participate in rate formulation or negotiation.

The court clarified that 1284225 Ontario Limited's interest is governed by 200 Ferrand Realty Limited's duty of good faith under the assignment agreement.

This judgment addresses two related applications concerning the interpretation of a Parking Agreement and an Assignment Agreement.

The primary issues involved determining the correct formula for calculating parking rates, the necessity and admissibility of expert evidence, whether retroactive payments were due, and the authority of the parties to negotiate and fix parking rates.

The court interpreted the Parking Agreement to require rates based on commercial, bona fide, arm's length public parking rates, not landlord-to-tenant rates.

It rejected expert evidence as unnecessary for rate determination and found the submitted evidence from both sides deficient.

The court ordered retroactive payments from June 1, 2019, and implied a good faith obligation for all parties to negotiate the parking rate, clarifying that neither 1284225 Ontario Limited nor 200 Ferrand Realty Limited could unilaterally negotiate or impose rates.

This judgment addresses two related applications concerning the interpretation of a Parking Agreement and an Assignment Agreement.

The primary issues involved determining the correct formula for calculating parking rates, the necessity and admissibility of expert evidence, whether retroactive payments were due, and the authority of the parties to negotiate and fix parking rates.

The court interpreted the Parking Agreement to require rates based on commercial, bona fide, arm's length public parking rates, not landlord-to-tenant rates.

It rejected expert evidence as unnecessary for rate determination and found the submitted evidence from both sides deficient.

The court ordered retroactive payments from June 1, 2019, and implied a good faith obligation for all parties to negotiate the parking rate, clarifying that neither 1284225 Ontario Limited nor 200 Ferrand Realty Limited could unilaterally negotiate or impose rates.

The applicant, a former CEO, brought a motion to remove the respondents' counsel of record, arguing that the lawyers were likely to be called as witnesses regarding his termination and share valuation, and that they had a conflict of interest from previously setting up a trust structure for him.

The court dismissed the motion, finding that the lawyers were acting for the corporation, not the applicant personally, and that the only genuine issue in dispute was the valuation of shares, making the lawyers' evidence regarding alleged oppression irrelevant.

This endorsement addresses costs for a motion brought by Daniel Sherk, seeking to compel Verge Insurance Brokers Limited to pay the balance of Deloitte's forensic accounting fees.

Daniel Sherk was unsuccessful in his motion.

The court awarded Verge partial indemnity costs, fixing them at $37,500.00, significantly less than the $79,629.31 requested on a substantial indemnity basis.

Additionally, Verge was awarded $1,500.00 for its involvement in Deloitte's separate application for payment.

The court emphasized reasonableness and proportionality in fixing costs, noting that the motion was uncomplicated and senior counsel's time appeared inordinate.

Deloitte, a forensic expert, brought a motion for costs against Daniel Sherk for an outstanding account, following a prior ruling that established Sherk's responsibility for the balance.

Sherk had agreed to judgment for the amount owed but disputed the basis and quantum of costs.

The court found Sherk's opposition was not "reprehensible, scandalous, or outrageous" to warrant substantial indemnity costs or sanctions.

The court awarded Deloitte costs on a partial indemnity basis, reducing the requested amount from $27,546.00 to $17,500.00, considering proportionality and Deloitte's failure to respond to Sherk's offer.

The defendant Daniel Sherk moved for the plaintiffs (Verge Insurance Brokers Limited et al.) to pay the total costs incurred by Deloitte Forensic Inc. for recreating, preserving, and analyzing 79 backup tapes.

The court reviewed previous orders by Quinn J. and Turnbull J., which stipulated that while Verge had an obligation to produce relevant documents from the tapes, Daniel's subsequent audit by Deloitte was generally at his own expense.

The court found that Verge had already paid for Deloitte's analysis of the initial 13 tapes as ordered by Turnbull J. due to Verge's initial non-compliance.

However, Daniel's motion for Verge to cover the additional costs for the remaining 66 tapes (approximately $280,000) was dismissed, with the possibility of rearguing these costs as disbursements at trial.

The court also denied Deloitte's claim for interest on the $67,613.99 already paid by Verge, as Deloitte had failed to cash the cheque promptly.

The defendant moved for partial summary judgment to dismiss all claims by 1198934 Ontario Inc. and specific claims by 1526806 Ontario Inc. for negligent misrepresentation, fraudulent misrepresentation, punitive damages, and aggravated damages.

The court dismissed the claims by 1198934 Ontario Inc. due to lack of privity of contract and rejected an attempt to amend the claim for unjust enrichment as untimely.

Claims for aggravated damages were dismissed because corporations cannot suffer intangible injuries.

Claims for fraudulent and negligent misrepresentation were dismissed due to an absence of evidence of loss or reliance.

However, the motion to dismiss the claim for punitive damages was denied, as it was intertwined with the breach of contract claim that was proceeding to trial, raising an unacceptable risk of inconsistent factual findings.

The plaintiff brought a motion for summary judgment for unpaid invoices relating to custom millwork installed in two homes renovated by the defendants.

The court found summary judgment appropriate for part of the claim, awarding the plaintiff damages for work actually delivered, less a set-off for conceded deficiencies.

The court dismissed the remainder of the claim for undelivered work due to the plaintiff's failure to provide evidence of its actual damages or costs incurred.

The issue of whether a trust was created under the Construction Lien Act from the sale proceeds of the homes was directed to a mini-trial due to insufficient evidence on the record.

The defendant Daniel Sherk sought leave to appeal an order denying various requests for document production.

The court dismissed the motion for leave, finding that the procedural motion did not involve matters of general or public importance beyond the immediate parties, thus failing the second part of the strict two-part test for leave to appeal under Rule 62.02(4)(b).

The plaintiff sought summary judgment for damages for breach of an employment contract, alleging entitlement to 180 days' notice or pay in lieu upon termination.

The defendant denied this, claiming the contract provided for Canada Labour Code minimums and that the plaintiff's relied-upon "Schedule A" was a forgery.

The court found significant discrepancies in the plaintiff's evidence regarding Schedule A, suggesting it was forged and not part of the original agreement.

However, due to unresolved questions regarding other email exchanges and the potential for inadvertent non-disclosure of electronic evidence, the court declined to grant summary judgment at this stage.

Instead, it issued directions for further document disclosure, cross-examinations, and a subsequent hearing to fully resolve the factual disputes.

This is a costs endorsement following Daniel Sherk's successful motion to compel production of backup tapes.

The court found that the plaintiffs failed to comply with disclosure obligations under the Rules of Practice and the Sedona Principles, necessitating Daniel Sherk to incur significant costs for an audit.

The court awarded Daniel Sherk substantial indemnity costs, including indemnification for the $200,000 paid to Deloitte for the audit, totaling $46,854.92 for the motion itself.

The defendant Daniel Sherk brought a motion to compel the plaintiffs (Verge Insurance Brokers Limited et al.) to produce remaining backup tapes and a revised affidavit of documents, and to indemnify him for costs incurred in reviewing previously produced tapes.

The court found that the plaintiffs had a positive duty to review and produce relevant documents from their backup tapes, as per a prior order by Quinn J. and the Sedona Principles.

The plaintiffs had failed to do so, despite earlier sworn statements by Mark Sherk.

The court ordered the plaintiffs to indemnify Daniel Sherk for the costs of Deloitte's prior work and to forthwith restore and review the remaining 66 backup tapes, producing an amended affidavit of documents.

The court also rejected the plaintiffs' arguments regarding leave to bring the motion and proportionality of costs, noting the high stakes of the litigation.

The plaintiffs brought a motion to stay the defendant's counterclaim pending the payment of approximately $138,000 in costs from previous unsuccessful motions, or alternatively, for an order requiring payment by a specific date.

The defendant sought an extension of 45 days to pay the costs, citing financial difficulties and an upcoming commercial closing that would provide funds.

The court balanced the need to enforce its orders with the context of the complex litigation and granted the defendant's request for an extension.

The court ordered that if the costs were not paid by the extended deadline, the counterclaim would be stayed.

The plaintiffs moved for summary judgment to recover the balance of a purchase price under an asset purchase agreement for valve-related business assets.

The defendants alleged contractual ambiguity, misrepresentation, and unilateral mistake relating to the valuation of slow-moving inventory and argued that the purchase price should have been reduced.

The court held that the agreement unambiguously required valuation of inventory at the plaintiffs’ cost as verified through a joint count at closing, which the defendants’ representative confirmed in writing.

The defendants failed to produce evidence supporting their valuation or their representative’s position and attempted to retrospectively alter the agreed contractual process.

Finding no genuine issue requiring a trial, the court granted summary judgment to the plaintiffs.

The defendants sought leave to appeal an order granting the plaintiffs leave to issue a Certificate of Pending Litigation in relation to a residential property.

The plaintiffs alleged they advanced funds toward the construction of a home that was not completed on time, resulting in termination of the agreement of purchase and sale and a claim for return of funds and an interest in the land.

The court considered the leave test under rule 62.02(4)(b) and assumed, without deciding, that there might be reason to doubt the correctness of the underlying order.

However, the court held that the proposed appeal did not raise an issue of sufficient importance beyond the parties to justify appellate intervention.

Leave to appeal was therefore refused and costs were awarded to the plaintiffs.

The defendant brought a motion for leave to appeal to the Divisional Court from a prior decision dismissing his motion to vary the terms of an interim injunction issued on consent.

The court considered rule 62.02(4) of the Rules of Civil Procedure governing leave to appeal.

It concluded that the moving party failed to meet the required onus under either branch of the rule.

The issues raised, while important to the parties, were not of sufficient importance to justify appellate review.

Leave to appeal was therefore refused.

The defendant, Daniel Sherk, brought a motion to vary a consent interlocutory injunction that prohibited him from soliciting or servicing clients of his former employer, Verge Insurance Brokers Limited.

He sought to suspend and amend the injunction under Rules 59.06(2)(b) and (d) of the Rules of Civil Procedure, arguing that the restrictive covenants had expired and the court had inherent jurisdiction to vary the order.

The court dismissed the motion, holding that a consent order can only be varied on the same grounds as a contract can be rectified, and that the court's inherent jurisdiction cannot be used to circumvent the express provisions of the Rules or to upset a fairly negotiated bargain.