Julian Binavince

The appellant appealed a summary judgment dismissing its debt claim as statute-barred.

The appellant argued the limitation period should run from the date it received notice that the respondent's cheque was dishonoured, rather than the date the cheque was presented.

The Court of Appeal held that the limitation period began to run on the date the cheque was presented, as the appellant was suing on the loan agreement, not the cheque.

The court also rejected the argument that an admission during cross-examination reset the limitation clock, as it occurred after the limitation period expired.

The appeal was dismissed.

The plaintiff bank brought a motion for summary judgment against a corporate director under a personal guarantee limited to $125,000 plus interest securing the debts of the corporation.

The defendant acknowledged the signature on the guarantee but argued the bank failed to discharge its duty to draw attention to onerous provisions, relying on Tilden Rent-A-Car Co. v. Clendenning.

The court held the guarantee was clear, continuing, and applied to all accounts, and found the defendant knowingly executed it as the directing mind of the corporation to obtain financing.

The court rejected the argument that the bank had a positive duty to ensure understanding of the guarantee's terms.

Summary judgment was granted in favour of the bank for the outstanding balance plus interest.

The defendant successfully opposed the plaintiff's motion for summary judgment, resulting in the dismissal of the plaintiff's claim on a loan agreement due to the expiry of the limitation period.

The defendant sought partial indemnity costs.

The plaintiff argued costs should be denied or set off against the unpaid debt because the defendant received a windfall.

The court rejected the plaintiff's arguments, noting the plaintiff had two years to bring the action and failed to do so.

The court awarded the defendant costs fixed at $15,164.

Following a construction lien trial in which the lien claim was declared expired but the plaintiff obtained a modest breach of contract judgment, the court determined issues of prejudgment interest and costs.

The court held that a contractual rate of 2% per month triggered s. 4 of the Interest Act, limiting recoverable interest to 5% per annum because the rate was expressed for a period shorter than a year.

On costs, the court considered Rule 49 settlement offers, proportionality, and the Construction Lien Act provisions governing cost awards.

Although the defendant succeeded on major issues at trial, the plaintiff had limited success and the settlement offers materially affected the analysis.

Weighing all factors, the court awarded the plaintiff partial indemnity costs of $2,000.

The moving party sought an interlocutory injunction restraining the respondents from dealing with inventory allegedly belonging to a partnership pending resolution of an application seeking dissolution of the partnership, an accounting, and damages.

The court applied the three-part test for interlocutory injunctions from RJR MacDonald Inc. v. Canada and found that although there was a serious issue to be tried regarding whether a partnership existed and whether certain inventory constituted partnership property, the moving party failed to establish irreparable harm.

Evidence showed that alternative financing remained available and that the retail business continued operating.

The balance of convenience favoured the respondent, who relied on the inventory to operate an online business and service debts.

The motion was dismissed, subject to terms preserving inventory management, accounting obligations, and monthly payments toward indebtedness.

A subcontractor sought payment under the Construction Lien Act for drilling and installing underground pipe and claimed extras relating to replacement of damaged pipe and investigation work.

The defendant contractor asserted a set-off, alleging the subcontractor negligently caused pipe damage during installation by continuing to pull the pipe despite encountering an obstruction.

The court held that the damage was reasonably foreseeable and that the subcontractor breached the subcontract by continuing the pull instead of investigating the obstruction.

The contractor did not waive its right of set-off by signing a repair extra, as the contract language did not clearly abrogate common law set-off rights.

After applying deductions and set-offs, the court found a reduced amount payable to the subcontractor and declared the construction lien expired because repair work does not extend lien rights.

At a Commercial List case conference, the court addressed procedural issues relating to documentary production, privilege waiver, and the scheduling of discoveries.

The plaintiffs had expressed a desire to bring a motion to strike certain counterclaims, while certain defendants contemplated a motion for a further and better affidavit of documents.

The court declined to schedule those motions, directing instead that the matters be addressed through examinations for discovery and cooperative document production.

Counsel were directed to resolve production issues, exchange documents, and establish a protocol for property inspections to facilitate an expert valuation report.

The plaintiff subcontractor brought a motion for summary judgment against the individual defendants for breach of trust under the Construction Lien Act.

The corporate contractor had failed to pay the plaintiff for completed flooring work despite receiving funds from the owners and swearing a statutory declaration that all sub-trades had been paid.

The court found a breach of trust occurred and held two of the individual defendants personally liable under s. 13(1) of the Act, finding they had effective control of the corporation and acquiesced in the breach.

The action against a third individual defendant, an employee, was dismissed.

The appellant appealed the dismissal of her claim for water damage to her property allegedly caused by the respondents, arguing the trial judge erred in credibility findings, was biased, and misapprehended evidence.

The Court of Appeal dismissed the appeal, finding the trial judge's factual and credibility findings were well supported and there was no reasonable apprehension of bias.

The respondents' cross-appeal for substantial indemnity costs was also dismissed, as the trial judge's costs decision was entitled to deference.

The appellant dentist appealed a permanent injunction enforcing a non-solicitation covenant in a management agreement with the respondent dental centre operator.

The appellant had copied patient lists before leaving the centre to start a new practice nearby.

The Court of Appeal dismissed the appeal, finding that the respondent had a valid proprietary interest in the goodwill of its business model, the non-solicitation covenant was reasonable and did not offend the regulatory scheme for dentists, and any alleged fee-splitting arrangement was a matter for the regulator and did not invalidate the contract.

The moving party sought to set aside default judgments entered against him in two civil actions arising from alleged investment misrepresentations and breaches of fiduciary duty.

The court applied the test under Rule 19.08 of the Rules of Civil Procedure requiring prompt motion, a reasonable explanation for the default, and a defence on the merits with an air of reality.

While the first two requirements were conceded, the court found the moving party failed to demonstrate a valid defence.

The affidavit evidence did not deny key allegations of reliance, misrepresentations, or investment advice, and contained unsupported assertions regarding investor sophistication and contributory negligence.

The court concluded there was no genuine issue requiring a trial and refused to set aside the default judgments.

The defendants moved to set aside an ex parte order extending the time for service of a statement of claim in a construction lien action under the Construction Lien Act.

The court held that the plaintiff failed to provide full and frank disclosure of material facts when seeking the extension, particularly regarding communications with prior counsel and the circumstances surrounding the delay in service.

Applying the principles governing ex parte motions, the court concluded the omitted facts might have influenced the original decision to grant the extension.

The court set aside the extension order, invalidated service of the statement of claim, struck the action, and vacated the registered construction lien and certificate of action.

Conditional directions regarding security for costs and leave to amend the statement of defence were also addressed.

The appellants appealed a trial judge's finding that an offer to lease commercial premises did not constitute a binding lease agreement.

The trial judge admitted parol evidence showing the parties intended the offer to be preparatory to a formal lease and that the respondent never gained possession of the premises.

The Court of Appeal upheld the trial judge's findings, concluding that the parol evidence was admissible to determine the factual matrix and that the doctrine of part performance did not apply because possession was never granted.

The appeal was dismissed with costs.

The appellants appealed a decision rejecting their request for a declaration that an access road was a public highway and that the Township was responsible for its maintenance and repair.

The appellants argued that the road's dedication by Ontario and assumption by the Township were apparent from surrounding circumstances, including negotiations and expenditures.

The Court of Appeal upheld the application judge's findings that there was no actual dedication by Ontario and no clear and unequivocal assumption by the Township, as the Township had sought work permits and was compensated by Ontario for maintenance.

The appeal was dismissed.

The appellant sued a trustee in bankruptcy and others.

A Registrar dismissed his motion for leave to continue the action under s. 215 of the Bankruptcy and Insolvency Act, and the appellant did not appeal.

Instead, he issued a new Fresh as Amended Statement of Claim based on the same facts.

The motion judge struck the new claim on the grounds of res judicata and abuse of process.

The Court of Appeal dismissed the appeal, holding that the new claim was an attempt to relitigate a determined matter and that the proper avenue was to appeal the Registrar's order.

The appellants appealed a partial summary judgment granted by the motion judge in a franchise dispute.

The Court of Appeal found no error in the motion judge's decision, noting the evidence in the record and the absence of any contrary explanation from the franchisor.

The appeal was dismissed with costs.

The appellant appealed an order finding that his mother lacked capacity to grant a power of attorney, as well as a s. 140(1) order.

The Court of Appeal dismissed the arguments regarding procedural fairness and capacity, finding the trial judge's conclusions fully warranted by the evidence.

However, the Court set aside the s. 140(1) order because it was not sought on a timely basis, was not argued, and no reasons were given for it.

Leave to appeal costs was dismissed, and costs of the appeal were awarded to the respondents.

The appellants appealed a trial judgment holding them liable as directors for unpaid wages owed to the respondent employees following the company's bankruptcy.

The Court of Appeal dismissed the appeal of two directors, finding that the employees' agreement to postpone payment until the company was in funds ended upon bankruptcy, making the debts payable.

However, the Court allowed the appeal of a third director, finding that the action against him was commenced beyond the six-month limitation period under the Business Corporations Act following his resignation.