Judith Turner

Following a trial where the plaintiff contractor obtained judgment for unpaid services, the parties could not agree on costs.

The plaintiff sought substantial indemnity costs based on an offer to settle.

The court found the offer did not trigger Rule 49.10 consequences because it was ambiguous regarding costs and, when properly calculating pre-judgment interest, the judgment was slightly less favourable than the offer.

The court awarded the plaintiff partial indemnity costs of $32,000 plus disbursements, taking into account proportionality, the defendants' partial success on a set-off, and a deduction for a mediation fee incurred due to the plaintiff's cancellation.

The plaintiff builder sued the defendant homeowners for the unpaid hold-back on a custom home construction contract.

The homeowners counterclaimed, arguing the contract was a fixed-price agreement and that the builder negligently underestimated the 'cash allowance' items, resulting in significant cost overruns.

The court held that the cash allowances were estimates and the homeowners were responsible for the overages, noting they had signed change orders approving the extra costs.

The court dismissed the negligent misrepresentation claim for lack of evidence on the standard of care and found the homeowners' claims barred by promissory estoppel.

The builder was awarded the hold-back amount, subject to a set-off for the homeowners' costs in staining the house, which the court found was the builder's responsibility under the contract.

The applicants, five beneficiaries of the estate, brought an application requiring the estate trustees to pass accounts.

The court had to determine whether a joint bank account held by the deceased and one of the trustees was an asset of the estate, and whether legal and accounting fees incurred by the trustee should be deducted from her executor's compensation.

The court found that the joint account was an asset of the estate, as the trustee failed to rebut the presumption of resulting trust.

The court also held that $37,512.57 in legal fees should be deducted from the trustee's compensation because the accounts did not differentiate between legal work and executor's work, but allowed the accounting and tax preparation fees to be paid by the estate.

The trustee was awarded net compensation of $7,522.25.

The plaintiff, Graydon Cragg, funded and established a financial services business through his corporation, 1350369 Ontario Inc. The defendants, Tom Jarvis and Darren O'Halloran, managed the business and developed its client base.

In 2005, the defendants abruptly left the business, taking the client files and staff to set up a competing operation.

The court found that Jarvis and O'Halloran were employees and fiduciaries of the plaintiff's business, not independent contractors.

By taking the book of business without compensating the plaintiff, they breached their fiduciary duties and were unjustly enriched.

The court directed a business valuation to determine damages.