Jamie VanWiechen

The plaintiff, a former executive at a property development company, claimed a 5% interest in the profit from the sale of a real estate development project.

The defendant argued the oral agreement was too uncertain to be enforceable and that any such interest was extinguished by a full and final release signed upon the plaintiff's termination.

The Superior Court of Justice found that the agreement was sufficiently certain and that the release, when read with the incorporated settlement correspondence, preserved the plaintiff's 5% interest.

The court awarded the plaintiff $1,372,992 in damages based on his expert's calculation of the profit from the sale of the lands.

The plaintiffs brought a motion for a status hearing to extend the deadline for setting their action down for trial, which was facing administrative dismissal for delay under Rule 48.14(1).

The significant delay of 3.5 years was attributed to a series of associate lawyers at the plaintiffs' firm failing to advance the file.

The defendants opposed the extension, arguing the explanation for delay was inadequate, but conceded they suffered no actual prejudice.

The court, applying the two-part test from Faris v. Eftimovski and considering its overriding discretion, found that despite the uncompelling explanation for counsel's delay, the action should proceed given the plaintiffs were not at fault and the defendants suffered no non-compensable prejudice.

The motion was granted, extending the deadline, and the plaintiffs were ordered to pay the defendants' costs.

The defendant moved for a third adjournment of a five-year-old civil trial, citing the childcare responsibilities of counsel during the third wave COVID-19 lockdown.

The plaintiff opposed further delay, noting the defendant had also served a late expert report during the interregnum.

The court granted a short adjournment to June 2021 to accommodate counsel's family responsibilities, making the new date peremptory to the defendant, but declined to delay the trial until September to accommodate counsel's competing arbitration commitments.

Following the dismissal of the defendants' Rule 21 motion to strike the statement of claim, the successful plaintiff sought full indemnity costs of $13,324.96.

The court declined to award full indemnity costs, noting the motion was not unreasonable given the poor drafting of the statement of claim.

Costs were fixed at $6,500 all inclusive.

The defendant 3Gen Development Group Inc. brought a motion under Rule 21 to strike the plaintiff's statement of claim for failing to disclose a reasonable cause of action, or alternatively, for a determination that it was no longer a party to the Agreement of Purchase and Sale and not vicariously liable for the co-defendant's conduct.

The plaintiff alleged negligent and fraudulent misrepresentation and vicarious liability related to an amendment to a real estate agreement that substituted the original purchaser with a numbered company.

The court, applying a generous reading to the poorly drafted statement of claim, found that it was not plain and obvious that the plaintiff could not succeed in her claims.

The motion to strike was dismissed.

The Defendant, Woodcliffe Corporation, sought partial indemnity costs of $13,291.85 for a motion, claiming 34.8 hours for newly retained counsel.

The Plaintiff, Mitchell Cohen, argued these hours were unreasonable and disproportionate.

The court, exercising its discretion under section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, considered the principles of indemnity, reasonable expectations of the unsuccessful party, and proportionality.

The court found the time spent by Woodcliffe's counsel excessive, particularly due to the retention of new counsel, and awarded $6,000 in costs, deeming it fair and reasonable given the average complexity of the issues and the plaintiff's reasonable expectations.

The plaintiff, Mitchell Cohen, brought a motion for an interim preservation order under Rule 45.02 of the Rules of Civil Procedure, seeking to have 5% of the purchase price from the sale of the Summerhill Condominium Project held in trust.

Cohen claimed a 5% interest in the profit from the development or sale.

The court dismissed the motion, finding that Cohen failed to satisfy the three-part test for an interim preservation order.

Specifically, there was no specific, readily identifiable fund at the time of the motion, Cohen's claim was for damages rather than a legal right to a specific fund, and there was insufficient evidence to demonstrate a risk of dissipation to satisfy the balance of convenience.

A senior manager alleged constructive dismissal after the employer reassigned him to a newly created role with the same salary but without staff, budget, job description, or clear responsibilities.

The court applied the objective test from Farber v. Royal Trust Co., asking whether a reasonable person would view the unilateral changes as substantially altering essential terms of employment.

The evidence showed the new role lacked managerial authority, resources, and status and was implemented while the employer had already arranged for another employee to assume the plaintiff’s former position.

The court concluded that the reassignment amounted to a demotion and constructive dismissal despite the unchanged salary.

Damages were awarded based on the period of unemployment following the dismissal.

Following a successful summary judgment motion for payment of shipped merchandise, the parties disputed the appropriate interest rate on the judgment amount.

The plaintiff relied on a 2% per month interest notation printed on its invoices.

The court held that the unilateral notation on invoices did not establish an agreement to that interest rate, particularly given the parties’ prior course of dealing where interest had not been charged.

In the absence of an agreement, the presumptive statutory interest rate under the Courts of Justice Act applied.

The court ordered that both pre-judgment and post-judgment interest be calculated at the statutory rate as simple interest.