Albert G. Formosa

The Ministry terminated the respondent contractor's right to work on a dam project and subsequently barred the contractor from bidding on Ministry projects for two years.

The contractor initiated arbitration for several claims under the dam contract, including a claim for damages related to the bidding disqualification (Claim #7).

The arbitrator ruled he had jurisdiction over Claim #7.

The Ministry applied to the Superior Court for a de novo determination of jurisdiction.

The court held that Claim #7 was not arbitrable because it related to decisions made outside the scope of the dam contract's arbitration provision, which was limited to claims arising out of the performance of that specific contract.

Following a summary judgment motion in a wrongful dismissal action where success was divided, the court determined costs.

Although the plaintiff was successful on two of three critical issues, the monetary result was less favourable than the defendant's offer to settle.

Applying Rule 49.10(2), the court awarded the plaintiff partial indemnity costs up to the date of the offer, and the defendant partial indemnity costs thereafter, resulting in a net costs award of $20,390 payable by the plaintiff to the defendant.

In this costs decision following an urgent injunction motion and a successful application, the moving party sought partial indemnity costs for both proceedings.

The court held that costs followed the event and accepted that the moving party was substantially successful on the injunction motion and entirely successful on the application.

Applying the proportionality and fairness principles under rule 57.01 and s. 131 of the Courts of Justice Act, the court reduced the amounts claimed as excessive, particularly in light of duplication in the later application materials.

Costs were fixed at $15,000 for the injunction motion and $10,000 for the application, for a total award of $25,000.

The applicant, a non-share capital corporation, sought a declaration that a resolution proposed by its voting members to remove certain directors and amend its by-laws was unlawful.

The voting members had requisitioned a special meeting to pass the resolution following a governance review that alleged the directors were in a conflict of interest.

The court granted the application, finding that under the Corporations Act and the applicant's by-laws, the voting members did not have the authority to unilaterally amend the by-laws or reduce the number of directors.

Furthermore, the resolution to remove the directors failed to comply with the procedural fairness and conflict of interest provisions set out in the by-laws.

The appellant appealed the dismissal of an application for leave under s. 215 of the Bankruptcy and Insolvency Act to commence an action against a trustee administering a court-approved proposal.

The Court of Appeal held that on a s. 215 motion the judge must only determine whether there is a factual basis for the claim and whether it discloses a cause of action, not finally decide the merits.

The motions judge erred by conclusively interpreting the proposal and the trustee's duties, thereby exceeding jurisdiction on the threshold application.

The court also declined to refuse leave on the basis that the appellant should have proceeded under s. 37 instead.

Leave to commence the action was granted.