Kevin W. Fisher

The appellant appealed the dismissal of his motion to set aside a 2013 consent dismissal and settlement agreement, as well as the dismissal of a new 2023 action claiming the same relief.

The motion judge found the appellant's motion and the new action were transparent attempts to relitigate issues that had been settled over a decade prior.

The Court of Appeal upheld the motion judge's decision, confirming that the doctrine of abuse of process prevents the relitigation of settled issues and that the interests of finality prevail absent contractual problems like fraud or duress.

The appeal was dismissed with costs.

The plaintiffs and defendants were equal shareholders in two closely held corporations that owned and operated gas stations and a driving range.

Following a breakdown in their relationship and a deadlock over succession planning and the division of corporate assets, both parties alleged oppressive conduct against the other.

The court found that both shareholders had engaged in conduct that unfairly disregarded the other's interests.

Given the irreparable breakdown of trust and the deadlock, the court ordered the winding up and liquidation of the companies by a court-appointed receiver.

The court dismissed the claims of the plaintiff's wife, finding she was not a shareholder or officer, but awarded the plaintiff $250,000 in compensation for his historical management of the companies.

The plaintiff brought a motion to enforce a settlement reached on February 3, 2017, under which the defendants agreed to pay $10,000 plus costs to be assessed, argued, or negotiated.

The court noted that a motion to enforce was unnecessary as the settlement was conceded, and the only remaining issue was the quantum of costs.

Applying principles of proportionality and the factors under Rule 57.01, the court fixed the plaintiff's costs of the action at $33,414.31 and awarded $1,500 for the costs of the motion.

Application concerning interpretation of an escrow clause in an agreement of purchase and sale for three apartment buildings.

A portion of the purchase price was held in escrow for three years and payable to the vendor if the buildings' rent roll met a specified annualized threshold by the end of the performance period.

The purchaser argued that performance should be assessed based on actual rental income over the three‑year period.

The court held that the clause required examination of the rent roll and that the escrow amount was payable if the annualized gross rental threshold was reached in any month during the performance period.

Finding that the threshold was met in April 2014, the court ordered the escrow funds and accrued interest paid to the vendor.

Following a summary judgment motion resolved by agreement, the applicant sought costs against the respondent Figueira.

The court held that the applicant was entitled to full indemnity costs based on the clear wording of a promissory note signed by the respondent, which provided for 'all costs of the collection'.

The court apportioned the total costs claimed among the three respondents and awarded the applicant $39,500 in full indemnity costs against Figueira.