Jonathan J. Barr

This is a costs decision following a nine-day trial in a breach of contract case concerning the distribution of proceeds from the 2012 sale of a company owned by the parties.

The plaintiff was awarded $405,199 out of a total claim of $2,319,567, representing only 18% of the amount claimed.

The plaintiff succeeded on one of three main issues (the distribution of profits after the 2012 sale) but failed on the validity/enforceability of amending agreements and the allocation of salaries.

The court awarded costs to the plaintiff as the successful party, but reduced the amount to account for the time and resources spent on unsuccessful issues.

Two business partners who built a successful commercial cleaning company and sold it for over $20 million in 2012 disputed the distribution of sale proceeds and allocation of profits.

The plaintiff challenged the validity of shareholder amending agreements signed in 2002 and 2009 that altered profit-sharing arrangements for newly established divisions.

The court found the agreements valid and enforceable but determined the defendant breached the agreements by unilaterally calculating the allocation of sale proceeds using revenue rather than profit as the basis, and by failing to involve the company's chartered accountant as required.

The court awarded the plaintiff $405,199 representing the overpayment to the defendant from the improper allocation methodology.

Claims regarding salary allocations were dismissed as statute-barred.

The court considered a motion by the defendants to discharge the plaintiff’s construction lien and dismiss the action as frivolous, vexatious, or an abuse of process, or for delay.

The dispute centered on whether the plaintiff was a proper lien claimant, the nature of his relationship with the defendants (partnership or subcontractor), and whether the lien was properly quantified.

The court found triable issues on the relationship and quantification, dismissed the motion to discharge the lien, and imposed a timetable for the next steps in the litigation.

The plaintiff requested a further attendance to reargue the case against one of the defendants, Markland Residential Corporation.

The court convened a case conference and maintained its previous decision but granted the plaintiff until the end of October to submit further materials on the issue.

Additionally, the court awarded the plaintiff previously overlooked disbursements in the amount of $6,089.18.

The plaintiff advanced a $6.5 million loan for a construction project.

The loan was not repaid, and the defendants were noted in default.

The plaintiff brought a motion for default judgment.

The court granted judgment against three defendants (Wenyi Wang, 2247697 Ontario Inc., and King Square Ltd.) based on established privity of contract and breach.

The motion for default judgment against the fourth defendant, Markland Residential Corporation, based on unjust enrichment due to a fraudulent conveyance, was adjourned due to insufficient evidence to quantify the benefit.

The court awarded damages of $12,394,307.42, plus costs of $37,440.38, and post-judgment interest at the contractual rate of 20% against the three liable defendants.

This is an appeal from an order of the Commercial List judge concerning insolvency proceedings.

The appellants, Bryton, sought to exercise an option to purchase a property and obtain orders declaring the option valid and immune from challenge by other creditors under various acts (Fraudulent Conveyances Act, Assignments and Preferences Act, Canada Business Corporations Act oppression remedy, and Bankruptcy and Insolvency Act).

The application judge dismissed Bryton's request for a vesting order and declaratory relief, finding that the claims were not res judicata and that declaratory relief was not the appropriate vehicle to pre-emptively bar unadjudicated creditor claims.

The Court of Appeal upheld the application judge's decision, confirming that the validity of the option was not res judicata and that the refusal to grant declaratory relief was a proper exercise of discretion, as the application procedure was not suitable for dismissing unproven claims.

The plaintiff builder brought a summary judgment motion against the defendant purchasers for breach of an Agreement of Purchase and Sale (APS) after the defendants failed to close on a pre-built home.

The defendants argued the APS was frustrated by a decline in the real estate market which prevented them from obtaining financing.

The court found the defendants breached the APS, holding that a market decline does not constitute frustration of contract.

The court awarded damages for the loss in property value, carrying costs, and increased real estate commission fees, but declined to enforce a 15% interest provision in the APS, finding it surprisingly onerous and unenforceable.

The Court of Appeal for Ontario issued a costs endorsement following its main appeal decision.

The court awarded the respondents costs for two pre-hearing motions ($1,000 for the Motion to Expedite and $7,000 for the Motion to Introduce Fresh Evidence).

Due to divided success on the appeal itself, the parties were ordered to bear their own costs for the appeal.

The lower court's costs order was not disturbed as the basis for the appellants' partial success on one issue was not argued at the application level.

The appellants, owners of a servient tenement, appealed a decision dismissing their application to declare two registered rights of way (ROWs) abandoned by the dominant tenement owners.

The Court of Appeal affirmed that abandonment requires proof of a fixed intention never to assert the right, inferred from non-use and acquiescence to permanent obstructions.

The Court found a palpable and overriding error in the application judge's assessment of the 174 Strachan ROW, concluding it was completely obstructed by a permanent house extension and thus abandoned.

For the 176 Strachan ROW, which was only partially obstructed, the Court dismissed the appeal for total abandonment but allowed it for partial abandonment of the portion under the house extension, remitting this issue for further determination.

In additional reasons following a summary judgment motion regarding a commercial lease dispute, the court determined the quantum of damages owed to the plaintiff landlord.

The court denied the plaintiff's motion to amend its pleadings to claim a higher pre-judgment interest rate, finding it would cause non-compensable prejudice as the request came after the summary judgment decision.

The court also reduced the plaintiff's claim for future rent after discovering the plaintiff had failed to disclose that the property was sold and demolished, terminating the rent obligation on the date a letter of intent for the sale was signed.

The plaintiff was awarded $199,136.01 in total damages for future rent and additional rent.

The plaintiff landlord brought a motion for summary judgment seeking a declaration of entitlement to $288,000 held in trust under a Termination Agreement and damages for unpaid rent.

The court found that the defendant tenant was entitled to the $288,000 held in trust, as it was consideration for giving up its rights to a long-term lease.

The court also found the tenant liable for arrears of Additional Rent and future rent following the termination of the lease for non-payment, but could not determine the quantum of damages on the current record, particularly given the recent demolition of the property.

The court ordered the funds to remain in trust pending a final determination of the set-off amount.

The parties could not agree on the terms of a formal order following a previous endorsement.

The court resolved the disputes over the competing draft orders, deciding to include a reference to the Investigative Receiver's Interim Report, declining to add a preamble regarding an undertaking as to damages, and including a paragraph explicitly dismissing the defendant's motion to set aside an ex parte order for lack of full and fair disclosure.

The plaintiffs obtained an ex parte order for a Certificate of Pending Litigation, a Mareva injunction, and the appointment of an Investigative Receiver.

The defendant Bayview Creek (CIM) LP moved to set aside the injunction, arguing the plaintiffs failed to make full and fair disclosure of material facts.

The court found no material non-disclosure or lack of frankness regarding the plaintiffs' allegations of misrepresentation and breach of terms.

Due to the complex commercial interests involved, including mortgagees intending to bring enforcement proceedings, the court transferred the matter to the Commercial List and extended the interim orders.

The applicants sought a declaration that a right-of-way across their property, benefiting the respondents' adjacent properties, had been abandoned and extinguished.

The applicants argued that historical non-use, the disappearance of original sheds, and various obstructions demonstrated an intention to abandon the easement.

The court dismissed the application, finding that the respondents and their contractors had recently used the right-of-way for property renovations and that the applicants failed to prove an express or implied intention to abandon the property right.

The applicant sought Income Replacement Benefits (IRBs) beyond the 104-week mark following a motor vehicle accident in November 2011.

The insurer had paid IRBs up to February 2015 but terminated them.

The applicant argued that the accident caused a traumatic brain injury and exacerbated her pre-existing Borderline Personality Disorder and substance abuse issues, rendering her unemployable.

The insurer argued that the applicant was already unemployable prior to the accident due to her severe mental health and addiction issues, and that the accident did not materially contribute to her impairment.

The arbitrator reviewed extensive medical records and expert testimony, concluding that the applicant's downward spiral began well before the accident.

The arbitrator found that the applicant failed to prove causation under either the 'but for' or 'material contribution' tests, as her inability to work was entirely attributable to her pre-existing conditions.

The application for ongoing IRBs was dismissed.

The applicant sought expenses following an arbitration hearing regarding statutory accident benefits where he was successful on five of eight disputed issues.

The arbitrator found the applicant was entitled to his reasonable expenses, reduced to reflect the insurer's degree of success.

Applying a 2:1 ratio for preparation to hearing time, the arbitrator awarded the applicant $21,257.00 inclusive of fees, disbursements, and HST.

The applicant was injured in a motor vehicle accident and sought income replacement benefits from her insurer.

The insurer denied the benefits, arguing her injuries fell within the Minor Injury Guideline.

The arbitrator found the applicant credible and accepted medical evidence that she suffered from Chronic Pain Syndrome as a result of the accident.

The arbitrator concluded the applicant suffered a substantial inability to perform the essential tasks of her employment for the first 104 weeks, and a complete inability to engage in any suitable employment thereafter.

The applicant was awarded ongoing income replacement benefits and interest on overdue payments.

The applicant was involved in two motor vehicle accidents (2005 and 2007).

He sought statutory accident benefits from the insurer for the 2007 accident, claiming it exacerbated his cognitive and executive function impairments from the 2005 accident.

The insurer argued the impairments were solely from the 2005 accident.

Applying the material contribution test, the arbitrator found the 2007 accident materially contributed to the applicant's worsening cognitive impairments.

The arbitrator approved treatment plans for occupational therapy, speech therapy, rehab coaching, and a catastrophic assessment, but denied duplicate occupational therapy and case management services (as catastrophic impairment was not yet determined).

A special award was denied, but interest on overdue payments was granted.

The plaintiff was injured in a motor vehicle accident and claimed both statutory accident benefits and tort damages.

The insurer, which insured both the plaintiff and the defendant, denied coverage alleging a staged accident.

The insurer retained the same law firm to defend it in the accident benefits arbitration and to defend the tort action, providing the law firm with the plaintiff's confidential accident benefits file without consent.

The plaintiff successfully moved to remove the law firm as solicitor of record due to a conflict of interest.

The insurer appealed to the Divisional Court.

The Divisional Court dismissed the appeal, holding that an insurer owes a duty of good faith and must maintain a privacy 'firewall' between its accident benefits and tort departments.

Retaining the same counsel and sharing confidential information without consent created an irreconcilable conflict of interest.

The applicant brought a motion to remove the insurer's counsel from the arbitration proceeding, alleging a conflict of interest because the same law firm represented the insurer in both the accident benefits claim and the tort action.

The insurer requested a stay of the motion pending a Divisional Court appeal on the same issue in the tort action.

The arbitrator denied the stay, finding it would cause unnecessary delay.

On the conflict issue, the arbitrator held that the law firm was not in a conflict of interest, as there was no prior solicitor-client relationship with the applicant, and the insurer was not required to retain separate counsel for the accident benefits and tort proceedings.