J. Stanleigh

The plaintiff brought a motion for leave to register a certificate of pending litigation against a matrimonial home transferred by the defendant to his wife prior to a loan agreement.

The plaintiff alleged the transfer was a fraudulent conveyance intended to defeat creditors.

Applying the Grefford test, the court found the plaintiff established a high probability of recovering judgment on the loan, but failed to introduce sufficient evidence that the transfer was made with intent to defeat creditors, especially given the defendant's uncontroverted explanation that the transfer was for remortgaging purposes following a bankruptcy.

The balance of convenience favoured the defendants.

The motion was dismissed.

The plaintiff agreed to purchase a restaurant from the defendant but failed to close the transaction, alleging the defendant made fraudulent misrepresentations regarding the business's profitability, equipment leases, and relationship with the landlord.

The plaintiff sought rescission of the agreement or a declaration of frustration of contract.

The court dismissed the plaintiff's claims, finding no evidence of misrepresentation and that the plaintiff had access to actual sales records before signing.

The court granted the defendant's counterclaim for breach of contract, awarding damages for the resale shortfall, commission, and carrying costs, offset by the plaintiff's initial deposit.

Following a six-day family law trial where the applicant was substantially successful in proving a customary marriage and entitlement to spousal and child support, the applicant sought costs of $20,000.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, noting the respondent's unreasonable denial of the relationship.

Recognizing the applicant's divided success on some financial issues, the court awarded costs fixed at $18,000 inclusive.

The defendant brought a motion to remove the plaintiff's counsel of record, alleging a conflict of interest arising from a pre-litigation telephone conversation.

The defendant claimed she provided confidential information to the lawyer and that he would likely be called as a witness at trial.

The court found that no solicitor-client relationship was established during the call, as the defendant knew she was speaking to the plaintiff's lawyer and did not seek legal advice.

The court also held that it was premature to remove counsel on the basis that he might be a witness, as that determination should be made after examinations for discovery.

The motion was dismissed.

A shareholder and director brought a crossclaim alleging that another director diverted corporate revenues and misappropriated funds through his separate company.

The court found that the defendant breached his fiduciary duties under the Ontario Business Corporations Act by diverting customer revenues, withdrawing corporate funds for personal use, and engaging in oppressive conduct that harmed the corporation and its other shareholder.

The court held that the conduct constituted fraud, breach of fiduciary duty, and oppression under the OBCA.

Damages were awarded to the corporation for diverted revenues and improper payments, and punitive damages were awarded to the shareholder.

The court also ordered the sale of the defendant’s shares to the other shareholder at fair market value as of the date of exclusion from the business.