Howard Borlack

The plaintiffs brought a motion to compel the defendant to attend examinations for discovery, and the defendants brought a motion for security for costs against the plaintiffs, arguing they were undischarged bankrupts and nominal plaintiffs.

The court dismissed the motion for security for costs, finding that the individual plaintiff was not a nominal plaintiff and that it would not be just to order security given the plaintiffs' strong case on the merits that their financial ruin was caused by the defendants' actions.

The court granted the motion to compel discovery, ordering the defendant to attend by video in short increments to accommodate his health issues.

Three related applications were brought concerning shareholder disputes in three closely held corporations operating as insurance brokerages and an investment holding company.

The applicants sought declarations of oppression and various remedial orders, including share buyouts and winding up.

The court dismissed all claims of oppression, finding no conduct that violated reasonable expectations.

However, the court found that the shareholders of two of the operating companies were hopelessly deadlocked and unable to work together.

Consequently, the court ordered the winding up of those two companies under the just and equitable ground of the Business Corporations Act, while dismissing the request to wind up the investment holding company.

Zurich, the surety for the insolvent general contractor Bondfield, brought a motion to intervene as a party in a construction lien reference.

Zurich sought to participate in a vetting committee for the distribution of the owner's holdback among the timely lien claimants.

The court granted the motion, finding that Zurich had a direct interest in the holdback because it had made significant holdback advances to the major electrical and mechanical trades and had taken partial assignments of their lien rights.

The court ordered the timely claimants to pay Zurich's costs of $30,000.

The plaintiff sought costs after successfully resisting the defendants' motions to strike and for summary judgment.

The court awarded the plaintiff $7,500 in costs for the motion to strike.

However, the court denied the plaintiff costs for the summary judgment motion because the plaintiff's principal sent an improper email threatening the defendants with criminal charges to extort a settlement.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.

The plaintiff, a solar power installation company, sued the Ontario Power Authority (OPA) for misfeasance in public office.

The plaintiff alleged that the OPA unlawfully amended the microFIT Program rules without providing the required 90 days' notice, intentionally causing harm to the plaintiff's business.

The Superior Court of Justice dismissed the action, finding that the OPA did not engage in deliberate unlawful conduct or act with bad faith.

The court held that the OPA acted in good faith to balance ratepayer interests and implement Ministerial directives regarding renewable energy procurement.

Although the court assessed potential damages at $470,250, no liability was found.

The plaintiffs brought a motion for summary judgment under Rule 20 of the Rules of Civil Procedure seeking to enforce a judgment under s. 258 of the Insurance Act against an insurer alleged to have issued a motor vehicle liability policy to the tortfeasor responsible for a catastrophic 1992 motor vehicle accident.

The plaintiffs relied on circumstantial evidence, including an accident report listing a policy number, licence plate renewal applications, correspondence with insurers, and an affidavit from the tortfeasor’s daughter.

The court held that the evidentiary record was insufficient to establish on a balance of probabilities that the tortfeasor held a motor vehicle liability policy with the alleged insurer at the time of the accident.

Because the existence of such a policy was not proven, the remaining issues concerning assumption of liability, limitation defences, and damages were unnecessary to determine.

The motion for summary judgment was dismissed.