Guy P. DiTomaso

Following a commercial trial concerning the valuation of a single common share under a share purchase agreement, the plaintiff obtained judgment significantly exceeding a pre‑trial offer to settle.

The court considered costs under Rules 49 and 57.01 of the Rules of Civil Procedure and the discretion under s.131 of the Courts of Justice Act.

Because the plaintiff’s Rule 49 offer was more favourable than the judgment ultimately obtained, the court held that the plaintiff was entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The court rejected the defendants’ objections to expert report disbursements and counsel fees, finding the litigation complex and the amounts reasonable and proportional.

Costs were fixed in the total amount of $60,458.99.

An employee sought a court order compelling payment of $150,000 from his employer’s deferred profit sharing plan due to alleged financial hardship.

The employer argued that it was not the proper respondent because the plan trustee administered the plan and that the employee did not meet the plan’s pre‑retirement withdrawal criteria.

The court held that only the trustee could effect payment and that the employee’s plan holdings did not qualify for pre‑retirement withdrawal under the governing trust deed.

The provision allowing trustees to distribute plan property pursuant to a court order did not grant a broad discretionary power to order payment outside the plan’s terms.

The court declined to interfere with the trustee’s discretion and dismissed the application.

An estate trustee applied to pass accounts relating to the administration of his mother’s estate.

One beneficiary objected to the accounts, alleging mismanagement, inadequate disclosure, excessive legal fees, and improper handling of estate assets and tax filings.

After hearing viva voce evidence from the estate trustee and considering the objections, the court found the trustee credible and concluded he had administered the estate fairly and reasonably.

The objections were rejected and the estate accounts were approved.

Legal fees incurred by the estate were held to be properly payable from the estate, and the objecting beneficiary was ordered to bear his own legal costs.

The moving party sought an order under Rule 45.02 of the Rules of Civil Procedure requiring the defendants and a non-party to pay into court any monies arising from a prospective dealership transaction, alleging entitlement to commission as an independent contractor.

The court considered whether the requirements for payment into court of a specific fund were satisfied, including the existence of a specific identifiable fund, a proprietary claim, a serious issue to be tried, and the balance of convenience.

The evidence showed that only a non-binding letter of intent existed and no binding agreement or completed transaction had occurred.

The court held that a contractual claim for potential commissions does not constitute a proprietary claim to a specific fund and that no identifiable fund existed.

The motion was dismissed as speculative and unsupported by the evidentiary record.

The accused brought an application seeking production of correctional institution records relating to inmate-on-inmate assaults, institutional responses, disciplinary actions, and injuries at a provincial correctional centre.

The request was advanced as either first-party disclosure under Stinchcombe or third-party production under the O’Connor framework to support a proposed defence of duress to a charge of assault causing bodily harm against another inmate.

The court held the records were third-party records and assessed the request under the O’Connor test.

The applicant failed to establish the threshold of likely relevance because the supporting affidavit merely asserted that a defence of duress would be raised and provided no evidentiary nexus between the requested records and the alleged offence.

The application was dismissed as a speculative fishing expedition.

The applicant sought a finding of civil contempt against the respondent for breaching a prior court order prohibiting him from practising law or providing legal services contrary to s. 26.1 of the Law Society Act.

The respondent, a disbarred lawyer, sent correspondence on letterhead identifying himself as a paralegal and offering to negotiate settlement of a civil action on behalf of defendants.

The court held that the order was clear and that the respondent deliberately held himself out as providing legal services and negotiating legal rights despite being prohibited from doing so.

The evidence established contempt beyond a reasonable doubt and the court rejected arguments that the conduct was minor or inadvertent.

Considering the respondent’s history and lack of remorse, the court imposed a custodial sentence to achieve denunciation and deterrence.

The applicant sought declaratory relief that a writ of execution registered against him personally did not attach to lands he held in trust for a corporation.

The respondent creditor argued the trust arrangement raised triable issues and alleged the transaction was potentially a fraudulent conveyance.

The court held that the unregistered declaration of trust, created years before the writ of execution, established that the lands were held solely in trust and not beneficially by the debtor.

As an execution creditor can claim no greater interest than the debtor held, the writ could not attach to trust property or its sale proceeds.

Judgment was granted declaring the writ did not affect the lands and ordering release of funds held in trust.