John Gray

The proposed intervener coalition sought leave to intervene in an employment-contract appeal concerning enforceability of termination provisions.

The court held the coalition would provide a distinct perspective on the effects of termination clauses on vulnerable and low-wage workers and granted leave on terms aligned with a prior intervener order.

The defendant brought a motion for summary judgment to dismiss a wrongful dismissal action on the grounds that it was statute-barred under the Limitations Act, 2002.

The plaintiff was terminated on January 4, 2022, for non-compliance with vaccination policies.

He initially pursued proceedings in Federal Court, which were unsuccessful.

The plaintiff did not commence the present action until August 26, 2024.

The court found that the plaintiff knew or ought to have known all material facts necessary to discover his claim on the date of termination, and that the two-year limitation period expired on January 4, 2024.

The plaintiff's misunderstanding of the legal significance of the facts and his belief that the federal government was responsible did not suspend the running of the limitation period.

The motion was granted and the action was dismissed as statute-barred.

This is a costs endorsement following the dismissal of a motion brought by the defendants to set aside a charging order in favour of their former counsel.

The former counsel sought costs on a substantial indemnity basis, relying on unaccepted offers to settle and the defendants' unsupported allegations of fraud against him.

The court refused to defer the costs determination to a future assessment hearing.

The court awarded substantial indemnity costs to the former counsel, finding that the defendants' unproven and unsupported allegations of fraud warranted sanction, and fixed the costs at $5,400.

The individual defendants, Kastriot Ademaj and Leo Burnaccioni, brought a motion under Rule 21.01(1)(b) to dismiss the claim against them personally, arguing it disclosed no reasonable cause of action.

The plaintiff, Thomas Haggan, brought a cross-motion under Rule 26 to amend his statement of claim to include claims against the individual defendants for intentional infliction of emotional distress.

The court granted the defendants' motion, finding no factual basis to pierce the corporate veil or establish personal liability for the officers acting within their corporate capacity.

The court denied the plaintiff's request to amend the statement of claim, as the proposed amendments lacked sufficient factual underpinning to disclose a reasonable cause of action against the individual defendants.

The defendants moved to vacate a noting of default and default judgment totaling $275,238.36, which arose from their failure to repay promissory notes related to a real estate investment.

The court applied the five-factor test for setting aside default judgment, considering promptness, plausible excuse, arguable defence, prejudice, and the administration of justice.

The motion was dismissed, as the defendants failed to demonstrate promptness, provide an adequate explanation for delay, or establish an arguable defence, particularly due to their failure to provide requested documentation.

Setting aside the judgment would prejudice the plaintiffs and undermine the integrity of justice.

Following a successful summary judgment motion terminating a commercial lease, the successful landlord sought costs.

The lease provided for costs on a substantial indemnity basis.

The tenant did not provide costs submissions.

The court awarded the landlord its requested costs of $50,509.62 all-inclusive.

The Landlord brought a summary judgment motion to terminate the lease of Michele’s Italian Ristorante Inc. due to multiple breaches, including non-payment of rent, failure to remedy fire code deficiencies, and unsatisfactory breakfast service.

Ristorante brought a cross-motion for relief from forfeiture and lease renewal, alleging the Landlord caused its cash flow problems.

The court granted the Landlord's motion, finding Ristorante's breaches serious and deliberate, and dismissed Ristorante's action and cross-motion, concluding there were no grounds for equitable relief from forfeiture.

Following a successful motion by the defendants to set aside a default judgment due to improper service, the court determined the issue of costs.

The plaintiffs argued the defendants unreasonably refused to instruct their counsel to accept service.

The court rejected this argument, noting the serious consequences and potential conflicts involved when a solicitor accepts service.

Given the defendants' success and their unaccepted offer to settle, the court awarded the defendants costs of $16,866.10, applying a substantial indemnity scale from the date of the offer.

The defendants moved to set aside a default judgment obtained in a franchise dispute concerning exclusive rights to market a restaurant concept in British Columbia.

They argued the statement of claim had not been properly served and that the affidavits of service from the process server were unreliable.

The court found the alleged service on both the corporate defendant and its director did not comply with the Rules of Civil Procedure and accepted evidence that the individuals said to have received the documents were not authorized agents or members of the household.

The court held that improper service rendered the judgment irregular and that the defendants also satisfied the discretionary factors for relief, including prompt action, a plausible explanation for default, and arguable defences on the merits.

The default judgment and noting in default were therefore set aside.

In a trademark and passing off dispute between competing consulting businesses using similar trade names, the defendants brought a motion to strike portions of the statement of claim and sought particulars.

The plaintiffs also sought an adjournment of their injunction motion and leave to amend their pleading.

The court held that several paragraphs of the statement of claim failed to plead material facts necessary to support claims for passing off and unlawful interference with economic interests, and improperly asserted trademark infringement despite the mark being unregistered.

Multiple paragraphs were struck, and certain pleadings were ordered corrected or clarified.

The court refused to permit the plaintiffs to withdraw admissions made in an affidavit but granted limited leave to amend the statement of claim provided the amendments were not inconsistent with those admissions.

The estate of a deceased shareholder brought a motion under Rule 59.06(2) of the Rules of Civil Procedure to vary a prior order requiring the deceased to purchase the other shareholder’s interest in a corporation owning a Hamilton property.

Following the shareholder’s death, the estate argued that the original premise of the order—his intention and ability to develop the property—could no longer be fulfilled.

The court held that the death constituted a new fact arising after the order that could not have been discovered with reasonable diligence.

Given that the estate lacked the capacity or intention to pursue development, the court varied the prior order and directed that the property be listed for sale on the open market.

Requests by the responding shareholders for historical costs and appraisal expenses were denied.

Respondents brought a motion under Rule 59.06(2)(a) and (d) of the Rules of Civil Procedure seeking to set aside a prior order requiring the purchase of one shareholder’s shares in a closely held corporation.

They argued that subsequent deterioration of a shareholder’s health, reduced developer interest in the company’s property, and litigation delay constituted new facts justifying the order’s reversal and instead requested a sale of the property and winding up of the company.

The court held that the alleged circumstances were not new facts arising after the order but risks that were known or reasonably foreseeable when the order was made.

The court further found that setting aside the order would not expedite resolution and that a subsequent order and appellate direction remained in force.

The motion was dismissed and the prior valuation process ordered by the Divisional Court was to proceed.