Kimberley J. Wolfe

The parties engaged in an international commercial arbitration regarding a contract for the sale of tomatoes.

The arbitrator awarded the respondent $45,516.95 USD.

The applicant sought to set aside the award, initially under the Arbitration Act, and later attempted to rely on a basket clause to seek relief under the International Commercial Arbitration Act (ICAA) after the three-month limitation period expired.

The court held that the applicant could not use a basket clause to assert a new cause of action out of time.

Furthermore, the court found that even if the ICAA applied, the arbitrator's alleged errors in interpreting trade terms did not conflict with the public policy of Ontario.

The application to set aside the award was dismissed, and the cross-application to recognize and enforce the award was granted.

A general contractor moved to discharge a supplier’s construction lien, cancel or reduce the security posted to vacate the lien, and discharge a subcontractor’s separate lien.

The court held that the supplier’s lien was properly perfected despite the contractor not being named as a defendant, because the Construction Lien Act does not require joinder of a contractor lacking contractual privity with the lien claimant.

The court also refused to reduce the lien bond posted under s.44, finding the owner’s holdback liability exceeded the lien amount and therefore the full security remained appropriate.

The subcontractor consented to discharge of its lien if the bond was not reduced.

The court discharged the subcontractor’s lien but otherwise dismissed the motion.

The moving defendants sought summary dismissal of an action to enforce personal guarantees associated with a corporate loan secured by pledged shares.

The lender had seized and retained the pledged shares following default and asserted rights as shareholder rather than selling the collateral.

The court found that the lender elected to retain the shares “in satisfaction of the debt,” thereby extinguishing the underlying obligation and releasing the guarantors.

In the alternative, the lender’s conduct in refusing a reasonable purchase offer, delaying enforcement, and materially altering the risk without notice discharged the guarantors.

Although the limitation defence failed because the guarantee was a demand obligation and the limitation period began only upon demand, the action against the guarantors was dismissed on the other grounds.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) registered by the plaintiff against their properties.

The plaintiff, an electrical subcontractor, alleged that the defendant contractor breached the statutory trust provisions of the Construction Lien Act by misappropriating funds to maintain and improve the subject properties.

The defendants argued that a breach of trust claim cannot give rise to an interest in land and denied using trust funds for the properties.

The court found that a claim for a remedial constructive trust arising from a breach of statutory trust can support a CPL.

Due to the defendants' failure to provide a proper accounting of the trust funds, a triable issue remained regarding the plaintiff's interest in the lands.

The motion to discharge the CPL was dismissed.

The applicant appealed a Notice of Proposal to review its application for a liquor licence to serve alcohol at a municipal concession stand in a public park.

Several community members objected, arguing that alcohol consumption in a family park would expose children to inappropriate behaviour and increase crime.

The Licence Appeal Tribunal found that the objectors failed to prove on a balance of probabilities that issuing the licence was against the public interest.

The Tribunal noted the municipality's support, the lack of police objection, and the applicant's proposed security measures.

The application was approved subject to conditions, including a two-drink maximum and the use of red plastic cups.