John Mullen

The plaintiff franchisee brought a motion for relief from forfeiture and an interlocutory injunction to reinstate a terminated franchise agreement and commercial sublease for a Williams Fresh Café location.

The franchisor had terminated the agreement after the plaintiff failed health audits, accrued significant debts, and closed the store.

The court applied the RJR-MacDonald test, requiring a strong prima facie case because the plaintiff sought a mandatory injunction to enforce a month-to-month agreement with no renewal right.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case, irreparable harm, or that the balance of convenience favored granting the injunction.

The defendant moved to set aside a default judgment and associated writs of execution, arguing improper service and that the credit card debts were corporate, not personal.

The court found the defendant was not properly served, thus setting aside the default judgment and noting in default.

However, the court dismissed the motion to lift the writs of execution, finding the defendant's proposed defence lacked an "air of reality" and that maintaining the security was necessary to preserve the integrity of the administration of justice given the weak merits of the defence and the defendant's delay.

The plaintiffs and defendants brought cross-motions for summary judgment in an action concerning advances totalling $792,154 made by the plaintiffs to the defendants.

The plaintiffs argued the advances were personal loans, while the defendants argued they were payments made on behalf of a corporation as interim bridge financing.

The court found that the conflicting evidence, particularly regarding credibility and the characterization of the advances, created a genuine issue requiring a trial.

Both motions for summary judgment were dismissed, and the motion judge remained seized of the action for trial.

Following a summary judgment decision dismissing a limitation period defence, the court addressed costs arising from multiple related motions.

The plaintiff sought partial indemnity costs for the successful summary judgment motion and for two additional motions involving the corporate defendant: an unsuccessful motion to set aside noting in default and a successful motion for default judgment.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure, the court exercised its discretion to award reasonable fixed costs reflecting the work required for each motion.

Costs of $1,000 each were ordered against the corporate defendant for the two ancillary motions, and $9,000 was ordered against the individual defendant for the summary judgment motion.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action based on the expiry of the applicable limitation period.

The plaintiff landlord sued the corporate tenant for breach of a commercial lease and the personal defendant director for alter ego liability, inducing breach of contract, intentional interference with contractual relations, and oppression.

The court held that the six-year limitation period under the Real Property Limitations Act applied to the breach of lease claim against the director as an alter ego.

The court found that the two-year limitation period under the Limitations Act applied to the tort and oppression claims, but these claims were not discoverable before December 14, 2010.

The motion for summary judgment was dismissed, and summary judgment was granted against the personal defendant dismissing his limitation period defence.

A non-party lawyer appealed a costs order requiring him to personally pay $3,000 to opposing counsel following an order made by a Master.

After leave to appeal was granted, the parties engaged in settlement negotiations but disagreed on the wording of the resulting order.

The moving party sought confirmation that the settlement included both allowing the appeal and setting aside the impugned paragraph of the Master’s costs order.

The court held that setting aside the impugned portion necessarily meant the appeal was allowed and found the parties were ad idem in their settlement.

The motion to confirm the settlement was granted and the settlement enforced.