Jonathan F. Lancaster

This endorsement addresses an appointment to settle a costs judgment previously rendered.

The plaintiffs, Amelin Engineering Ltd. and Michael Elinson, objected to Michael Elinson's personal liability for costs.

The defendants, Steam-Eng Inc. and Blower Engineering Inc., submitted a draft order reflecting a compromise on the set-off of costs.

The court, being functus officio regarding the original costs disposition, rejected both parties' immediate positions.

The judge refused to sign the defendants' draft order because it reflected a compromise rather than the court's original disposition.

The court directed the defendants to submit a new draft order that accurately reflects the original costs endorsement, outlining the process for its approval.

The applicants sought the appointment of an Inspector to investigate the management and affairs of two companies, Morris Kerbel Holdings Limited and Paladium Construction Limited, alleging oppressive and unfairly prejudicial conduct by the respondents under the Ontario Business Corporations Act.

The court dismissed the applications, finding that the applicants had not met the second and third parts of the three-part test for appointing an inspector, specifically regarding the necessity and appropriateness of such an extraordinary remedy given that information could be obtained through ordinary litigation tools like an oppression proceeding.

The court also noted concerns about the broad scope, unknown costs, and lack of company resources to fund the investigation.

The appellants appealed a trial judgment dismissing their action for negligent misrepresentation, which was found to be statute-barred under the Limitations Act, 2002.

The trial judge also found the action could not succeed on the merits.

The Court of Appeal upheld the trial judge's decision, finding that the appellants, as professional engineers, knew or ought to have known of their claim much earlier than when they filed their statement of claim, despite the respondents' ameliorative efforts and superior expertise.

The court emphasized that an expert report was not necessary for discoverability in these circumstances.

The appeal was dismissed.

The plaintiffs brought an action for negligent misrepresentation against the defendants, alleging that steam generators purchased for resale in the Former Soviet Union failed to perform as represented in promotional brochures.

The defendants counterclaimed for unpaid invoices.

The court dismissed the plaintiffs' action, finding it was statute-barred under the former Limitations Act because the plaintiffs knew or ought to have known of the equipment's deficiencies well outside the six-year limitation period.

The court also found no detrimental reliance on the brochures.

The defendants' counterclaim was dismissed for lack of proof.

The plaintiff brought a motion seeking the recusal of the presiding judge on the basis of a reasonable apprehension of bias.

The plaintiff failed to properly serve the motion on all interested parties, failed to file the motion record with the court, and failed to confirm the motion, in direct contravention of a prior court order.

The court dismissed the recusal motion on procedural grounds due to the plaintiff's clear disregard for court orders and the Rules of Civil Procedure.

Following a trial regarding reciprocal easements and commercial redevelopment, the court determined costs.

The plaintiffs achieved divided success, obtaining some but not all of the declaratory relief sought and failing to obtain a permanent injunction.

The court declined to make a distributive costs order, instead reducing the plaintiffs' partial indemnity costs by 50% to reflect their divided success and over-staffing, awarding them $638,804.86 against the Market Village defendants.

The Kennedy defendants were awarded $70,000 in partial indemnity costs against the plaintiffs.

The plaintiffs and defendants own contiguous commercial retail centres and share reciprocal easements for access and parking.

The defendants proposed a major redevelopment that would expand their building footprint onto lands subject to the plaintiffs' easement, eliminating hundreds of surface parking spaces.

The plaintiffs sought declarations and an injunction to prevent the development.

The Superior Court of Justice found that the proposed development would substantially interfere with the plaintiffs' easement rights and overburden the remaining shared parking.

The court granted specific declarations confirming the breach of the easements but declined to issue a permanent injunction, finding it unnecessary given existing structural safeguards.

Genstar Development Partnership appealed a Superior Court decision dismissing its application for specific performance to enforce a repurchase option contained in an Agreement of Purchase and Sale dated August 21, 1998, between Imasco Enterprises Inc. and the Roman Catholic Episcopal Corporation of the Diocese of Hamilton.

The repurchase option allowed the vendor to repurchase property if not developed as a church within 10 years.

The application judge found that Genstar had not established it was a successor to Imasco or an equitable assignee of the repurchase option, and that Genstar's tenders were deficient.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error of fact and upholding the application judge's discretionary decisions regarding the admission of supplementary evidence and conversion to an action.

The applicant, Genstar Development Partnership, sought to repurchase a property from the respondent, The Roman Catholic Episcopal Corporation of the Diocese of Hamilton, based on a right defined in an Agreement of Purchase and Sale.

Genstar claimed to be a successor or equitable assignee of the original vendor (Imasco) and sought specific performance.

The court dismissed the application, finding that Genstar failed to prove its status as a successor due to an incomplete evidentiary record.

As an assignee, Genstar failed to provide the statutory notice required by the Conveyancing and Law of Property Act.

Furthermore, the court found no anticipatory breach by the respondent and determined that Genstar's tenders were deficient due to an incorrect purchase price.

Minority shareholders in a family-owned company appealed a trial judgment dismissing their oppression and conspiracy claims.

The appellants alleged that the director diverted property interests to his benefit through a series of transactions and that respondents conspired to allow the company to default on a mortgage so that a controlled company could acquire the property.

The trial judge rejected all claims, finding that the appellants' conduct was unclean and that the director's actions were justified to protect the company's interests.

The appellants failed to establish reasonable expectations or damages.

The appeal was dismissed with costs awarded to the respondents.

This protracted litigation involved a family dispute over a commercial property, with plaintiffs (minority shareholders and creditors) alleging oppression and conspiracy against defendants (majority shareholders, directors, and related entities).

The plaintiffs claimed the defendants engaged in self-dealing and unlawful acts to deprive them of their beneficial ownership and profits.

The court dismissed both the oppression and conspiracy claims, finding that the plaintiffs failed to establish their reasonable expectations were violated or that an unlawful conspiracy occurred.

The court noted the plaintiffs' own conduct demonstrated a lack of regard for the corporation's welfare and a failure to protect their interests.

A counterclaim by one of the defendants was also dismissed.

The respondents, GMD Canavas Holdings Inc. and Decora Building Restoration Limited, moved to enforce an Offer to Settle dated May 3, 2016, which the applicant, 1435970 Ontario Inc., had accepted.

The applicant contended its acceptance was void due to a misunderstanding regarding RDI Construction Company Ltd. vacating its premises.

The court found that a miscommunication between the applicant and its counsel did not invalidate the acceptance, especially since the applicant itself was aware RDI had not vacated.

Furthermore, the Offer's terms did not premise on RDI vacating.

The motion to enforce the Offer to Settle was granted, and the applicant was ordered to pay costs to the respondents.

The parties appeared at a case conference to settle a draft Order arising from previous Reasons for Decision.

The plaintiff advised the court of its intention to discontinue the proceeding and make a voluntary assignment into bankruptcy.

The draft Order, including costs, was settled and signed by the court.

The tenant brought an urgent motion seeking relief from forfeiture after the landlord terminated a commercial lease and re-entered the premises due to substantial rent arrears.

The tenant had ceased paying rent for several months and significant arrears had accumulated, though the tenant alleged the premises had serious deficiencies and that the parties had been engaged in ongoing lease renegotiations.

The court applied the equitable principles governing relief from forfeiture under the Commercial Tenancies Act and Courts of Justice Act, considering the tenant’s conduct, the gravity of the breach, and the surrounding circumstances.

Although the tenant’s failure to pay rent weighed against relief, the court granted interim relief from forfeiture on strict terms requiring substantial payment of rent arrears and ongoing compliance with the lease.

The matter was adjourned for further determination on whether the relief should continue on an interlocutory basis pending trial.

A subsequent lien claimant brought a motion to vary an interim report that directed the distribution of trust funds to original lien claimants.

The moving party sought to attach funds payable to its contractor to satisfy its own subsequent liens.

The court declined to vary the interim report, finding that the settlement agreement among the original lien claimants was valid.

However, the court ordered that the funds received by the contractor be impressed with a trust in favour of the moving party and other subtrades, and directed the contractor to pay 10% of the received funds to the moving party pursuant to a prior agreement.

The applicant sought a declaration that non-competition, non-solicitation, and confidentiality agreements he signed with the respondents were unenforceable as an illegal restraint of trade.

The court found that the covenants were connected to a commercial sale transaction rather than just an employment contract, and therefore subject to a less rigorous standard of reasonableness.

The court concluded that the covenants were unambiguous, protected a legitimate business interest, and were reasonable in their scope, territory, and duration.

The application was dismissed.