James Stuart George Macdonald

On a post-trial distribution motion arising from a failed land development scheme, the court addressed competing claims between settling investors and investors who proceeded through trial and appeals.

The settling parties obtained judgment on their settlement agreements, but were denied equitable liens over preserved funds because their rights were contractual, the defendants were not shown to own the preserved funds, and equity favoured the trial parties who preserved assets and bore the burdens of the litigation.

The court also held that the trial parties lacked standing to raise limitation defences to enforcement of the settlements, and excluded a disputed email under settlement privilege.

The funds paid into court were ordered distributed pro rata among the trial parties, subject to specified limitations tied to claims against one defendant.

The plaintiffs and defendants were part of a group of ten investors who purchased a property to improve and sell for profit.

Following the sale, a dispute arose over the distribution of the net proceeds.

The plaintiff claimed entitlement to three shares of the proceeds and compensation for lost rental income, while the defendants argued he was only entitled to one share, subject to a deduction for an unpaid promissory note.

The court found the plaintiff was entitled to a single one-tenth share, from which his debt under the promissory note was deducted, resulting in an award of $8,237.82.

The claims for additional shares and lost rental income were dismissed.

This appeal concerned a failed business venture between the appellants (Corridor Transport Inc. and Corridor Transport Limited Partnership) and the respondents (Vittorio Junior Lentini, LTI Logistics Inc., and Loblaw Companies Limited).

The appellants claimed breach of contract, conversion, and breach of fiduciary duty by a director.

The trial judge dismissed the action, finding no enforceable contract due to fundamental misunderstandings regarding the parties' identities and entitlement to business proceeds, and no conversion as the appellants lacked a possessory interest in the funds.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error in the factual findings or error in law, emphasizing the trial judge's reasonable conclusion that no meeting of the minds occurred on essential contractual terms.

The appeal was dismissed with costs.

The plaintiff sought specific performance of an Agreement of Purchase and Sale (APS) for a property, arguing the defendant vendor repudiated the agreement.

The defendant denied a valid agreement and specific performance, and counterclaimed for a forfeited deposit.

The plaintiff also brought a separate action for repayment of a mortgage provided to the defendant.

The court found a valid APS existed and that the defendant anticipatorily breached it.

However, specific performance was denied because the property was not unique, the transaction circumstances were not unique, damages were deemed an adequate remedy, and the parties' conduct did not favour equitable relief.

The plaintiff's claim for specific performance and the defendant's counterclaim were both dismissed.

The plaintiff's mortgage claim was granted for the principal amount of $600,000, but the 12% interest rate provision was found invalid under section 8 of the Interest Act.

This endorsement addresses the costs arising from the respondents' largely unsuccessful motion to stay or dismiss the applicant's proceeding.

The applicant sought substantial indemnity costs, while the respondents sought costs thrown away due to the applicant's improper procedural choice (application instead of action) and conduct.

The court awarded the applicant partial indemnity costs of $50,000, but also awarded the respondents $25,000 "on account" for costs thrown away, considering the applicant's procedural misstep, improper contact with represented parties, and questionable urgency claims.

The net result was an order for the respondents to pay the applicant $25,000 in all-inclusive costs.

The respondents brought a motion to stay or dismiss the application as an abuse of process, alleging the applicant failed to immediately disclose a settlement agreement with a co-respondent, failed to disclose surveillance evidence, and improperly commenced the proceeding as an application.

The court found that the applicant had made immediate and proper disclosure of the settlement agreement to both the non-settling parties and the court, and that the handling of surveillance evidence did not constitute an abuse of process.

The motion to stay was dismissed, but the court ordered the application converted into an action.

The defendants brought a motion for leave to appeal an order of André J. dated April 29, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

The appellants appealed a decision refusing to set aside a default judgment against them for unpaid freight services and breach of statutory trust.

A five-judge panel of the Court of Appeal was convened to reconsider its prior decision in Umlauf v. Umlauf regarding deemed admissions on default.

The Court overruled Umlauf, holding that while facts pleaded in a statement of claim are deemed admitted when a defendant is noted in default, conclusions of law and mixed fact and law are not.

However, the Court dismissed the appeal, finding the motion judge made no error in refusing to set aside the default judgment because the appellants failed to file an adequate record and the evidence supported the findings of a 2% monthly interest agreement and the director's personal liability for knowing assistance in the corporation's breach of statutory trust.

The appellants, operators of a cabinet-making business, appealed a permanent injunction that prevented them from causing a noise nuisance to an adjoining law office in a mixed-use condominium complex.

The injunction was initially granted by the Superior Court after the appellants failed to mitigate the noise despite multiple opportunities.

The Court of Appeal dismissed the appeal, affirming the lower court's findings that an unreasonable nuisance existed, that the legal test for nuisance was properly applied, and rejecting the appellants' arguments that the respondents should have taken measures to reduce the noise or that statutory authority permitted the nuisance.

The appellant, Hafeez Fazl, sought a panel review of a single judge's decision to dismiss his appeal for delay.

He also requested an adjournment, initially for a religious pilgrimage, and subsequently on the grounds of being a party under a disability requiring a litigation guardian, citing a 2019 doctor's note.

The Court of Appeal for Ontario dismissed the adjournment request due to a lack of proper medical or psychiatric evidence and the absence of any application under the Substitute Decisions Act, 1992.

The panel found no error in the original dismissal of the appeal for delay, noting the underlying action had been dismissed on summary judgment as being "without a scintilla of merit" due to previous litigation on the same issues.

The motion for review was dismissed, with no order as to costs.

The appellant appealed a summary judgment of $102,862.95 plus interest, granted to the respondent based on a promissory note.

The appellant argued the note was unenforceable due to unfulfilled oral conditions and that the motion judge erred in denying an adjournment and in finding no evidence to support his claims.

The Court of Appeal dismissed the appeal, finding the motion judge's refusal of adjournment reasonable and his characterization of the appellant's evidence as "bald allegations" lacking credibility was supported by the record, especially given the appellant's inconsistent conduct.

The court affirmed that the appellant failed to establish any agreement altering the promissory note's terms.

The appellants sought to appeal two judgments.

The Court of Appeal found it lacked jurisdiction to hear the appeal of the first judgment (October 2020 Judgment) because a prior appeal of that judgment had been dismissed for delay or abandoned, constituting an impermissible collateral attack.

The court declined to exercise its power to set aside the prior dismissal, emphasizing that proper procedural rules must be followed for such a request.

The appeal concerning the second judgment (February 2021 Judgment) was adjourned and will be rescheduled.

Costs thrown away were awarded to the respondents.

The moving parties brought a motion for leave to appeal from the order of Bielby J. dated September 2, 2020.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs fixed at $4,968.21 to the responding parties.

This endorsement addresses the costs of a prior motion and application where the applicant, Mohamed Khatau (operating as MAK Enterprises), was largely unsuccessful in preventing the respondent, Apra Development Inc., from removing or selling property after failing to vacate premises as per a consent order.

Apra sought full indemnity costs, citing Khatau's breach of the consent order and the motion's lack of merit.

Khatau argued for partial indemnity, asserting his conduct was not "reprehensible, scandalous or outrageous" and that the motion was brought out of genuine concern for his livelihood.

The court awarded partial indemnity costs to Apra, finding Khatau's conduct did not warrant full indemnity, and reduced the requested fees due to potential duplication of counsel services and excessive hours for a non-complicated motion.

The plaintiff sought to enforce a Vermont trial judgment against the defendant for services rendered.

The defendant opposed, alleging fraud, denial of natural justice, and public policy contravention.

The court granted summary judgment, finding a real and substantial connection to Vermont and dismissing all of the defendant's defences.

The Applicants sought a direction for funds from a property sale and costs.

Respondent Amrita Randhawa Gill moved to strike portions of affidavits based on settlement privilege.

The court dismissed the motion to strike, finding no settlement privilege for the emails in question regarding the Applicants' claims for monies owed or ownership interest.

The court also converted the entire Application into an Action due to material facts in dispute and credibility issues that could not be resolved in an application.

The defendants brought a motion to discharge the plaintiff's construction lien for pre-publication work and to vacate the remaining lien for post-publication work upon payment into court.

The plaintiff argued that the defendants were precluded by promissory estoppel from relying on the statutory limitation period to perfect the lien, based on a promise to pay made during settlement discussions.

The court found that the pre-publication lien had expired because it was not perfected in time.

The court held that promissory estoppel did not apply because the defendants never promised to waive or not rely on the limitation period.

The motion was granted, the pre-publication lien was discharged, and the post-publication lien was ordered vacated upon payment into court.

The appellant appealed the dismissal of his application for specific performance of an option to repurchase land.

The appellant had sold two lots to the respondent in 2012 for $1,160,000, with the respondent taking back a mortgage of $800,000.

The agreement included an option clause requiring the respondent to construct an industrial building within 30 months, failing which the appellant could repurchase at the original price.

The respondent failed to build and the appellant exercised the option in September 2016.

The application judge dismissed the claim, finding the option had expired and the appellant was not ready, willing and able to close.

The Court of Appeal allowed the appeal, finding the application judge erred in law regarding the "time is of the essence" clause, misapprehended the facts regarding the appellant's financial capacity, and incorrectly required tender when the respondent had clearly repudiated the agreement.

The court granted specific performance as the property was unique to the appellant's subdivision development plan.

The appellants, parents of one spouse, appealed a motion judge's order granting partial summary judgment dismissing their claim for an interest in a matrimonial property.

The parents had advanced funds to their son and daughter-in-law, claiming some of those funds were used to purchase the property and that they were entitled to a beneficial interest.

The motion judge found no connection between the advances and the property purchase and concluded there was no evidence the advances constituted a loan.

The Court of Appeal found two reversible errors: a misapprehension of evidence regarding the link between the advances and the property purchase, and internal inconsistency in the motion judge's reasoning regarding the legal characterization of the advances.

The appeal was allowed and the partial summary judgment was set aside, leaving the matter for trial.

The appellants appealed a motion judge's order dismissing their motion for summary judgment and granting the respondent leave to amend its statement of claim.

The respondent sought to amend its claim to seek only a declaration of share ownership to avoid the expiry of the limitation period under s. 16(1)(a) of the Limitations Act, 2002.

The Divisional Court allowed the appeal, finding that the declaratory relief sought was an attempt to circumvent the limitation period and would require consequential relief to be effective.

The action was dismissed as statute-barred.