K.J. McKenzie

Following a trial and an appeal that remitted the matter back for an assessment of damages on the counterclaim, the court assessed damages for the unlawful seizure of the defendants' business assets.

The court valued the seized heavy equipment at $415,000 and assessed business losses at $210,000.

After applying a set-off for the damages awarded to the plaintiffs in the main action, the plaintiffs were ordered to pay the defendants $273,251.87.

The plaintiff subcontractor brought a motion for summary judgment against the defendant general contractor for breach of trust under the Construction Lien Act.

The defendant had received funds from the project owner but withheld payment to the plaintiff after the plaintiff registered a claim for lien.

The court found that the defendant's failure to pay the trust funds within a reasonable time and failure to provide an accounting constituted a breach of trust.

The defendant's cross-motion for set-off was dismissed due to lack of evidence.

Judgment was granted in favour of the plaintiff for $559,926.18.

Following a successful trial regarding the default of an asset purchase agreement, the plaintiffs sought costs on a full indemnity basis.

The court found that while both parties contributed to the lengthy litigation, the plaintiffs were entitled to costs on the higher end of the partial indemnity scale.

The plaintiffs' offer to settle did not trigger Rule 49 consequences as it was not as favourable as the judgment obtained.

The court fixed costs at $137,812.65 and waived the six-month waiting period to enforce the writ of seizure and sale, but declined to order that the judgment survive bankruptcy.

This trial decision addresses a complex dispute arising from the sale of a business, involving a promissory note default, failure to assume a lease, and subsequent seizure of assets.

The vendor (plaintiffs) sought to recover a deficit, while the purchaser (defendants) counterclaimed for unlawful seizure and damages.

The court found the purchaser in default of the promissory note and the lease assumption.

It determined that notice prior to seizure was not required under the Personal Property Security Act's exception for collateral customarily sold on a recognized market, and that the vendor's actions, while dishonourable, did not breach the duty of honest performance.

Damages were assessed, adjusting the plaintiffs' claim by reducing excessive storage fees and crediting the defendant for an undervalued asset sale.

The plaintiff brought a motion to set aside a Registrar's Order dismissing its action for delay under Rule 48.14.

The action had been dormant for over four years.

The court applied the Reid factors and found that the plaintiff failed to provide an adequate explanation for the delay, failed to show inadvertence, and failed to demonstrate that the defendants would not suffer actual prejudice.

The motion to set aside the dismissal was dismissed.

The court also noted that, had the dismissal been set aside, it would have granted the defendant's cross-motion for security for costs due to the plaintiff's insufficient assets.