Hugh N. MacDonald

The plaintiff sued the estate of a deceased businessman, alleging he made an oral personal promise to pay a $330,432 debt owed to the plaintiff by an insolvent company he controlled.

The plaintiff claimed it provided consideration by forbearing from litigation and continuing to supply parts.

The court dismissed the claim, finding that the deceased only explained his intention to recapitalize the company from the sale of another business, which did not constitute a binding contract or personal guarantee.

Furthermore, the court found no consideration was given, as the deceased never requested forbearance from litigation.

The respondent, a flooring contractor, was hired by the appellant general contractor to install sheet vinyl flooring at a long-term care facility.

When the respondent identified deficiencies in the sub-floor structure that prevented proper installation, the appellant refused to remedy the defects and instead directed the respondent to attempt a temporary fix.

After the temporary fix failed and the project architect required the flooring to be removed and replaced, the respondent refused to continue without payment for previous work and relief from warranty obligations.

The appellant hired another contractor to complete the work and counterclaimed for abandonment.

The trial judge found the respondent unable to perform due to sub-floor defects that were the appellant's responsibility to remedy, awarded damages for breach of contract, and dismissed the counterclaim.

The appellant appealed, and the respondent cross-appealed on damages assessment.

The defendant brought a motion for the production of notes and records from the plaintiff's counsel's file.

The plaintiff had previously moved to amend his statement of claim to withdraw an admission that he resigned, alleging his counsel made a drafting error and that he had actually been terminated.

The court found that by putting his communications with his counsel into issue to explain the alleged error, the plaintiff waived solicitor-client privilege over those specific communications.

The motion was granted in part, ordering the production of direct communications between the plaintiff and his counsel regarding how his employment ended.

The court awarded costs to the plaintiff, Dan McCabe, following a trial where McCabe was found to be substantially more successful than the defendant, Finn Way General Contractor.

The plaintiff was awarded $49,451.44, while the defendant received just over $500 on its counterclaim.

The court considered the purposes of costs awards, the complexity of the issues, the parties' settlement offers, and the conduct of the litigation, including the defendant's unreasonable position in not seeking resolution.

Despite some protraction of proceedings by plaintiff's counsel, the defendant's lack of interest in settlement warranted a costs award.

A fair and reasonable award was fixed at $75,000 on a partial indemnity basis.

Shareholders applied for a declaration that a respondent shareholder was out of time to commence arbitration under a shareholder agreement governing the purchase of shares after termination of employment.

The court held that it had jurisdiction to determine the limitation period issue notwithstanding the arbitration clause.

Applying the discoverability principles under the Limitations Act, 2002 and s. 52 of the Arbitration Act, 1991, the court concluded the limitation period began when the value of the shares was determined and the applicants refused payment, not when the employment relationship ended.

The arbitration had been commenced within the two-year limitation period by written notice demanding arbitration.

The court declined to interfere with the appointment of the arbitrator or the arbitral procedure.