Kevin Lawrence MacDonald

The decision concerns two motions to oppose the confirmation of a report of Associate Justice Robinson regarding construction lien and contract claims arising from a Toronto hospital project.

The court confirms the report, finding no error in the associate judge’s analysis of whether Kelson had a direct contract with Sjostrom, the effect of a change order on Amar’s scope of work, and the sufficiency of evidence for claimed damages.

The court upholds the associate judge’s findings that Kelson breached its contract with Amar but that Sjostrom failed to prove its damages, and dismisses both motions.

The decision concerns two motions to oppose the confirmation of a report of Associate Justice Robinson regarding construction lien and contract claims arising from a Toronto hospital project.

The court confirms the report, finding no error in the associate judge’s analysis of whether Kelson had a direct contract with Sjostrom, the effect of a change order on Amar’s scope of work, and the sufficiency of evidence for claimed damages.

The court upholds the associate judge’s findings that Kelson breached its contract with Amar but that Sjostrom failed to prove its damages, and dismisses both motions.

This decision concerns the approval of a sale process and a motion to appoint the sales officer as receiver in the context of a deadlocked insurance brokerage business.

The court approves the sale process and related ancillary relief, including the appointment of an interim broker and non-solicitation orders, but dismisses the motion to appoint the sales officer as receiver.

The ruling addresses issues of conflict of interest, compliance with prior orders, and the preservation of assets pending winding up.

This decision concerns the approval of a sale process and a motion to appoint the sales officer as receiver in the context of a deadlocked insurance brokerage business.

The court approves the sale process and related ancillary relief, including the appointment of an interim broker and non-solicitation orders, but dismisses the motion to appoint the sales officer as receiver.

The ruling addresses issues of conflict of interest, compliance with prior orders, and the preservation of assets pending winding up.

The plaintiffs, Gary and Jennifer McKenzie, brought two claims: one for breach of contract against Fabco Holdings Inc. and Jaymor Specialty Housing General Partner Inc. (Fabco/Jaymor) arising from an aborted real estate purchase agreement, and another for slander of title/injurious falsehood against Gerald Anthony, a neighbour, regarding a disputed property boundary.

The court found that Fabco/Jaymor breached the purchase agreement, not due to a legitimate title issue, but because the property was unsuitable for their development plans.

Fabco had assigned its obligations to Jaymor, and the court held Jaymor solely responsible for the breach, releasing Fabco from liability per the contract's assignment clause.

The court awarded the plaintiffs substantial damages against Jaymor for loss of bargain and associated costs.

Regarding the title claim, the court found Anthony liable for slander of title/injurious falsehood for registering a caution and application on title without bona fide grounds, which delayed the subsequent sale of the property.

However, Anthony was not held liable for damages related to the initial aborted sale, as that was attributed to Fabco/Jaymor's independent reasons.

The court awarded damages against Anthony for losses incurred due to the delay in the second property sale.

The defendants' counterclaim was dismissed, and the plaintiffs were found to have reasonably mitigated their damages.

This endorsement addresses the costs of a motion for advice and directions brought by a Sales Officer in three oppression remedy applications.

The underlying motion resolved in favour of Doug Middleton, Jason Middleton, and JDM Group Ltd. (the "Middleton parties") against Mark Ber and his affiliates (the "Ber parties"), finding Mark's actions had undermined the Sales Officer's mandate.

The court considered whether Mark's conduct warranted substantial indemnity costs, ultimately concluding it did not meet the threshold for "reprehensible, scandalous or outrageous" behaviour.

The court ordered the Ber parties to pay partial indemnity costs to the Middleton parties and deferred any ruling on the disproportionate allocation of the Sales Officer's costs.

This motion, brought by the court-appointed Sales Officer in consolidated oppression remedy applications, sought directions regarding the inclusion of insurance policies in the sale plan of two closely held companies, Producer’s Planning Group Ltd. and The Benefits Group Inc. The dispute centered on 789 policies (PG Transferred Policies) that had been transferred to Mark Ber's company, The Producer’s Group Ltd. The court addressed two main issues: the ownership of 'PG Originating Policies' and the inclusion of 'PG Orphaned Policies' which clients transferred to Mark Ber's company after he ceased providing services through the original companies.

The court found that the PG Originating Policies were owned by the Planning Group and that Mark Ber improperly caused their transfer.

It also found that the PG Orphaned Policies should be included in the sale plan due to Mark Ber's unilateral actions undermining the court's prior order.

The court dismissed the respondents' request for a trial of issues, affirming its jurisdiction to decide the matter on the written record, consistent with Commercial List practice.

The applicants sought urgent interim relief against a respondent for alleged misappropriation of corporate assets of a company undergoing court-ordered winding-up.

The court addressed jurisdiction, finding the issues had not merged in a prior final order.

While a strong prima facie case for some alleged improper payments was found, the court determined no irreparable harm was established, declining to grant immediate mandatory repayment.

Instead, it clarified rules for future expenses and expanded the Sales Officer's powers to investigate and reconcile the disputed payments as part of the ongoing winding-up process.

This is a costs endorsement for three related applications concerning shareholder rights and oppression remedies in private companies (Producers Planning Group Ltd., The Benefits Group Inc., and Thornbridge Capital Inc.).

The main applications resulted in an order for the sale of businesses and assets of two companies, while claims for oppression remedies were dismissed for all parties.

The court found that all parties had substantial success as respondents in opposing the oppression claims made against them.

Due to the overlapping issues and the divided success, the court ordered no costs for any of the three applications, as the costs of successful respondents would largely offset the costs for which they would be liable as applicants in other applications.

The plaintiff, an independent contractor, sued for unpaid termination payments after the defendant terminated his consulting agreement.

The defendant initially terminated without cause, then later alleged cause based on breaches of non-competition, confidentiality, and the duty of honest performance.

The court found the non-competition clause unenforceable due to ambiguity and overbreadth, and no material breach of confidentiality or dishonest conduct, as the plaintiff's activities were minor and the confidential information was not misused.

Judgment was awarded to the plaintiff for the unpaid amounts.

Shareholders of two successive corporate ventures to develop oil and gas fields in Russia sued defendants for fraudulent misrepresentation, deceit, and conspiracy.

The defendants had induced the plaintiffs to invest US$50 million in a sham public company (Magellan) by falsely representing that another investor (BDW) had committed to investing US$70 million.

When the fraud was discovered, the parties reorganized under a new company (Koll), but the defendants continued to deceive the plaintiffs about asset values and IPO prospects to induce further investment.

The trial judge awarded full compensatory damages to the plaintiffs.

On appeal, the court upheld liability for pre-June 2006 conduct but set aside liability for post-June 2006 conduct based on unpleaded fraudulent misrepresentation claims regarding IPO-related statements, while maintaining liability for wrongful garnishment of remaining Magellan funds.

The applicant, Altus Group Limited, sought to set aside an arbitration award in favor of the respondent, 3GS Incorporated, on the grounds of fraud.

Altus alleged that a key witness for 3GS, Lisa Robbins, lied under oath about her criminal convictions during the arbitration.

The court found that Ms. Robbins did indeed give dishonest testimony regarding her criminal record.

However, the court ultimately dismissed the application, concluding that Ms. Robbins' fraudulent evidence was not material to the outcome of the arbitration, as the arbitrator's decision was primarily based on Altus's own knowledge and concealment of its breach, and the credible testimony of 3GS's principals, Alan and Ann Gordon, which was untainted by Ms. Robbins' dishonesty.

Following a judgment in favour of the plaintiff (HC) for breach of contract and dismissal of the defendant's (K) counterclaim, this decision addresses costs.

HC sought substantial indemnity costs, arguing its complete success, K's unmeritorious counterclaim, and K's conduct in protracting proceedings.

K contended the claimed costs were excessive and that HC had only mixed success.

The court found HC entirely successful and entitled to partial indemnity costs up to its first Rule 49 offer, and substantial indemnity thereafter.

The court drew an adverse inference against K for failing to provide its own bill of costs when challenging HC's quantum and made a minor adjustment for limited duplication of counsel.

During a jury trial in a defamation action arising from statements published by municipal officials, the plaintiff sought a jury instruction permitting an adverse inference from the defendants’ failure to call two municipal officials as witnesses.

The court reviewed the principles governing adverse inference where a party fails to call a witness, including the requirement that the witness be under the exclusive control of the party and that the evidence not be otherwise available.

The court found the witnesses were equally available to both parties and were not under the defendants’ exclusive control.

As a result, the circumstances did not justify the rare step of instructing the jury that an adverse inference could be drawn.

During a civil jury trial, the court addressed a dispute between counsel regarding the form of jury questions on damages.

The plaintiff argued that the jury should only be asked about general, aggravated, and punitive damages, while the defendants submitted that the questions should reflect the damages discussed in the charge, including general, nominal, and contemptuous damages.

The court held that there was no prejudice to the plaintiff in directing the jury to consider the specific types of damages addressed in the charge.

The jury questions would therefore separately reference general, nominal, and contemptuous damages to align with the jury instructions.

In a defamation action brought by a municipal councillor concerning a statement published by town council and later republished by a newspaper, the plaintiff sought to introduce similar fact evidence relating to a separate defamation action previously commenced and later discontinued by one of the defendants.

The plaintiff argued that the earlier litigation had been characterized as SLAPP litigation and was relevant to establish malice.

The court held that the prior action had minimal probative value in determining whether the impugned statement was defamatory or whether available defences applied.

The court further concluded that admitting the evidence risked sidetracking the jury trial into collateral issues unrelated to the pleadings.

The motion to admit the similar fact evidence was therefore dismissed.

The applicant landlord sought a determination that the tenant was required to contribute to construction cost overruns under two offers to lease for commercial space in a shopping centre.

The agreements provided that the tenant would pay excess hard construction costs above a specified amount per square foot if such costs were approved in advance by the tenant or incurred under approved contracts.

The court held that the tenant’s prior approval of construction contracts or excess costs was a clear condition precedent to any obligation to pay cost overruns.

Because the landlord failed to obtain such approval before construction was completed, the tenant was not liable for any excess costs.

The court also held, obiter, that if liability had arisen, the cost of constructing the underground garage would have been included as part of the hard construction costs.

In a commercial dispute concerning allegedly defective heat pumps installed in condominium projects, the defendants moved to withdraw an admission in their Statement of Defence that certain individual defendants were partners in the corporate defendant.

The court applied the three‑part test for withdrawing admissions, requiring a triable issue, a reasonable explanation for the admission, and absence of non‑compensable prejudice.

The defendants failed to provide credible affidavit evidence explaining the admission and did not satisfy the requirements of the test.

The motion to withdraw the admission was dismissed.

The court permitted certain amendments to the Statement of Defence, required further particulars for others, and imposed a discovery plan after the parties were unable to agree.