Junaid Malik

The plaintiff brought a motion to lift the defendant's noting in default and for a litigation timetable in a wrongful resignation action.

The defendant, residing in the Netherlands, argued she was not properly served under the Hague Convention and sought to stay the proceeding.

The court found that the defendant had attorned to the jurisdiction of Ontario by unconditionally participating in mandatory mediation.

The court also noted the defendant's significant delay in bringing her motion to set aside service.

The plaintiff's motion was granted, the default was set aside, and a timetable was ordered.

The defendant employer brought a motion to sever the claims of four former senior employees who sued for constructive dismissal.

The plaintiffs alleged that the defendant made similar changes to their employment terms, including eliminating bonuses and altering reporting structures.

The court dismissed the motion, finding a sufficient nexus between the claims under Rule 5.02(1) of the Rules of Civil Procedure and concluding that severing the claims would cause undue complication, delay, and risk of inconsistent results.

The applicant Estate Trustees sought the court's opinion and advice on interpreting a clause in the testator's will that granted one of her sons an option to purchase her 'farming business' for a fixed price.

The son argued that the testator's rental of the farm property to him constituted carrying on the farming business.

Applying the armchair rule, the court found that the testator intended the phrase to mean the active farming business she and her late husband had previously operated, not the passive rental of land.

As the testator was not carrying on the active farming business at her death, the option to purchase was declared ineffective and the farm property fell into the residue of the estate.

The plaintiff tire distributor sued the corporate defendant and its sole proprietor for unpaid invoices totalling $659,908.87, relying on a personal guarantee allegedly signed by the proprietor.

The action against the corporate defendant was stayed due to bankruptcy.

The proprietor admitted the corporate debt but denied knowingly signing a personal guarantee, arguing the document was presented merely as a credit application update.

The court found that while the proprietor did sign the document, the plaintiff had a positive obligation to bring the guarantee clause to his attention due to their special, long-standing business relationship.

Because the plaintiff failed to do so, the guarantee was obtained by misrepresentation and was unenforceable.

The action against the personal defendant was dismissed.

The plaintiffs sued the defendants for breach of a royalty agreement and promissory note following the winding-up of an investment fund.

The court found the defendants breached the royalty agreement by discontinuing payments after the fund's termination, as the agreement provided for a "proportionate continuation" of royalties if a significant amount of unitholders reinvested in successor funds.

However, the court rejected claims of bad faith and the necessity of an Independent Review Committee (IRC) referral for the winding-up decision.

Damages were awarded based on a modified calculation of the proportionate continuation of royalties, significantly less than sought by the plaintiffs.