Kristjan Surko

The defendants, NSR Toronto and Dapeng Wang, brought a motion to strike the plaintiffs' claims against them for breach of contract, unjust enrichment, oppression, and conspiracy.

The court found that neither moving defendant was a party to the underlying contract, precluding the breach of contract and derivative claims.

The court also held that the oppression remedy under the OBCA did not apply to a BC corporation, and the conspiracy claims lacked the requisite clarity and precision.

The motion was granted, and the claims against the moving defendants were struck without leave to amend.

The Safe Harbour defendants sought to schedule a motion for partial summary judgment.

The plaintiff opposed, citing the recent Court of Appeal decision in *Malik v. Attia*, which set out three requests for judges considering partial summary judgment motions.

The court applied the "bright line rule" from *Mason v. Perras Mongenais* and *Butera v. Chown, Cairns LLP*, finding that a risk of duplication or inconsistent verdicts existed due to common issues, including the limitation period and the cause of the land re-designation.

The court also considered the cost-effectiveness of proceeding with a partial summary judgment.

The motion to schedule the partial summary judgment was refused.

The defendants brought motions to strike the plaintiff's Amended Amended Statement of Claim in its entirety.

The plaintiff alleged a fraudulent scheme involving breach of contract, conspiracy, and other torts by its former employee and various corporate and individual defendants in China and Ontario.

The court found that the plaintiff failed to plead material facts to support personal liability against the individual defendants (except the former employee) separate from their roles as corporate directors or officers.

The court struck the entire statement of claim but granted the plaintiff leave to deliver a Fresh as Amended Statement of Claim in accordance with the court's directives.

The plaintiff moved to stay or dismiss a counterclaim brought by five entities, arguing it was unauthorized under Rule 15.02(4) of the Rules of Civil Procedure.

The court found that Rule 15.02(4) applies to counterclaims, which are defined as "proceedings" under the Rules.

Given that both the previous and current controlling parties of the five entities did not authorize the counterclaim, the court stayed the counterclaim for those five entities.

The moving parties sought an urgent interlocutory injunction to prevent the respondent from selling securities in a real estate development project pursuant to a put option agreement, or alternatively, an order freezing the sale proceeds under Rule 45.02.

The court found that while the moving parties might suffer irreparable harm if the proceeds were repatriated out of Canada, the balance of convenience favoured the respondent, who had a valid third-party offer and faced an impending mortgage expiry.

The court also held that the sale proceeds did not constitute a specific fund under Rule 45.02 as the moving parties' claim was essentially for damages.

The motion was dismissed, with leave to renew if the current sale transaction failed to close.

The defendants brought a motion to dismiss the plaintiff's action for negligence and breach of contract, arguing that it was barred by the principles of res judicata, collateral attack, and/or abuse of process.

This argument was based on a prior Small Claims Court default judgment obtained by one of the defendants against the plaintiff for unpaid invoices.

The court dismissed the defendants' motion, finding that section 107 of the Courts of Justice Act prevented the application of res judicata in these coincident actions.

Furthermore, the court determined that the parties were not identical in both proceedings, and the issues in the Superior Court action (negligence and breach of contract) were distinct from the Small Claims Court action (unpaid invoices) and not fundamental to the default judgment.

The court also concluded that the action was neither a collateral attack on the Small Claims Court judgment nor an abuse of process, as the Ontario Racing Commission investigation was not a prior legal proceeding.

Vista owned a shopping mall and leased space to Zellers, which operated a retail store.

Zellers notified Vista in February 2004 of its intention to cease operations in May 2004, although the lease did not terminate until April 2005.

Vista sued, claiming Zellers was obliged under "continuous use" clauses in the lease to operate until the lease ended.

The trial judge found that Zellers was entitled to close when it did, interpreting the continuous use obligation as qualified by the hours of operation clause.

The Court of Appeal reversed, holding that the continuous use obligation in sections 8.01 and 8.05 was not overridden by the hours of operation clause in section 8.01.1, and that Zellers breached its obligation by closing prematurely.

The appellant, Western Troy Capital Resources Inc., retained the respondent, Genivar Inc., an engineering consulting firm, to conduct a feasibility study for a mineral property at MacLeod Lake in Northern Quebec.

The trial judge found that Genivar breached its duty of care and made negligent misrepresentations, awarding damages of $1.25 million.

On appeal, Western Troy sought to increase the award to approximately $2.97 million or $2.15 million, arguing the trial judge failed to adequately explain his damages assessment.

The Court of Appeal upheld the trial judge's award, finding it was firmly grounded in evidence and that the trial judge properly considered speculative elements including the timing of when the resources estimate should have been completed, which expenses would have been incurred regardless, and the likely reaction of Western Troy's management to a timely report.

The Estate Trustee applied to rectify a drafting error in the deceased's Secondary Will.

The will mistakenly directed the redemption of 150 Class D shares to fund a $2 million bequest, but the deceased owned Class E shares, and 300 shares were required to generate the necessary after-tax proceeds.

The drafting solicitor admitted the error.

The deceased's widow opposed the rectification, arguing it should await the trial of her separate negligence claim against the solicitor.

The court applied the Robinson test, found the solicitor misunderstood or failed to carry out the testator's instructions, and granted the rectification to reflect the deceased's true intentions.