Mark Wainberg

The appellants, limited partners in a family-owned limited partnership, appealed the dismissal of their application seeking a declaration that they were entitled to an annual cash distribution of 100% of the partnership's net income.

They argued that section 11(1) of the Limited Partnerships Act and the Accumulations Act mandated such distributions, overriding the general partner's discretion under the limited partnership agreement.

The Court of Appeal dismissed the appeal, holding that the right to a 'share' of profits under the Act does not equate to a statutory obligation to make annual payments, and that the Accumulations Act does not apply to commercial endeavours.

The moving parties, six limited partners holding 54.5% of the shares in a family limited partnership, sought leave to commence a derivative action on behalf of the limited partnership and related corporate entities against the general partner, its sole director, and other parties.

The court held that while there is no statutory right for limited partners to bring a derivative action under the Limited Partnerships Act, the common law fraud exception to the rule in Foss v. Harbottle permits such an action where the general partner is the alleged wrongdoer.

Leave was granted to bring the derivative action on behalf of the limited partnership against the general partner and its director, but denied against third parties and on behalf of the underlying corporate entities.

The plaintiff moved under Rule 21.01(b) to strike the counterclaim of the defendants, which alleged breach of contract, oppression, negligent misrepresentation, and unjust enrichment arising from a family business dispute.

The court struck the negligent misrepresentation claim and all claims by the corporate defendant, finding they lacked the necessary factual pleadings, but granted leave to amend.

The court declined to strike the individual defendant's claims for breach of contract, oppression, and unjust enrichment, finding they disclosed a reasonable cause of action.

A subcontractor brought a motion for summary judgment in a construction lien action seeking payment for stair construction work performed during a residential renovation.

The defendants argued that leave for summary judgment should not be granted and disputed whether work had been performed on the final date necessary to render the lien timely.

The court granted leave under s. 67(2) of the Construction Lien Act and held that uncontradicted documentary evidence established that the subcontractor’s work continued to the relevant date.

The court rejected arguments that the absence of live testimony from the worker required an adverse inference and found the lien had been registered within the statutory period.

Judgment was granted jointly and severally against the contractor and the homeowners.

The applicant sought a declaration that an agreement of purchase and sale for a residential property remained in full force and effect.

The respondent argued that the agreement, which was tied to a lease, had been terminated due to chronically late rental payments and other alleged breaches, relying on the principle that full performance was a condition precedent to exercising the option to purchase.

The court found that the principles of fundamental and anticipatory breach applied, rather than strict condition precedent.

The court concluded that the respondent failed to properly terminate the agreement within a reasonable time and granted the declaration that the purchase and sale agreement remained valid.

Following a trial where the plaintiffs were awarded $134,000 in damages against their investment advisors for negligence, the court determined the appropriate costs award.

The court found that the plaintiffs' subsequent settlement correspondence did not constitute valid Rule 49 offers, meaning they were only entitled to partial indemnity costs.

Applying the principle of proportionality, the court fixed the plaintiffs' costs at $195,000.

The court further held that the individual employee defendants, while proper parties, were not necessary parties, and therefore ordered the employer to bear the sole responsibility for paying the plaintiffs' costs, declining to make any costs orders against or in favour of the individual employees.

This was an addendum to a family law costs decision following a motion to change.

The court reviewed reply costs submissions that had been timely delivered by the applicant but were not before the judge when the original costs decision was released.

After considering arguments concerning alleged bad faith, offers to settle, proportionality, hourly rates, disbursements, enforcement as support, impecuniosity, and alleged joint and several liability, the court held that none affected the original ruling.

The prior costs decision was confirmed without alteration.

This was a costs decision following a trial of a motion to change involving spousal support reduction, COLA arrears, and life insurance security, as well as a related disclosure motion against the applicant's wife.

The court held that the respondent was the successful party and that her October 4, 2014 offer was as favourable as or more favourable than the trial result within the meaning of r. 18(14) of the Family Law Rules.

Applying rr. 18 and 24, the court awarded the respondent partial indemnity costs to the offer date and full recovery thereafter, while reducing claimed trial hours as excessive.

The court also made no order as to costs for the June 26, 2014 disclosure motion due to divided success and fixed the applicant's thrown-away costs for the April 15, 2014 attendance at $900.

Net costs were fixed at $79,100 all inclusive in the respondent's favour.

The appellants appealed an order striking their plea of equitable fraud.

The Court of Appeal allowed the appeal, finding that it was not 'plain and obvious' that a claim in equitable fraud could not succeed, citing relevant jurisprudence.

The order striking the plea was set aside, the defendants' motion was dismissed, and the appellants were permitted to amend their statement of claim.