Rodney M. Godard

The defendants brought a cross-motion to stay the plaintiff's Toronto action in favour of their own Windsor action, which involved the same parties and overlapping issues arising from a share purchase agreement.

The court applied the four-factor test under Rule 21.01(3)(c) of the Rules of Civil Procedure.

Although the plaintiff bore the chief burden of proof and its claim was more comprehensive, the court found that the balance of convenience overwhelmingly favoured the defendants, as the parties, the dispute, and the alleged torts were all located in Essex County.

The cross-motion was granted, and the Toronto action was stayed with leave to convert it into a counterclaim in the Windsor action.

The moving defendants sought leave to vacate a Certificate of Pending Litigation (CPL) registered by the plaintiffs to allow a corporation to grant a second mortgage to the Royal Bank of Canada.

The plaintiffs and other defendants opposed the motion.

The court dismissed the motion, finding that the grounds for discharging the CPL did not satisfy the criteria under section 103(6) of the Courts of Justice Act, nor did the equities favour the moving parties, as ownership interests remained in dispute and the proposed mortgage would dilute the plaintiffs' interests.

The plaintiffs, as trustees of their late father's estate, sued the defendant corporation on a promissory note for $171,000 relating to the transfer of water allocation rights for a greenhouse development.

The defendant argued the note lacked consideration because the water rights should have passed with the land purchase.

The court rejected the defendant's arguments, finding the defendant signed the note in bad faith with no intention to pay, and that the transfer of the water allocation constituted valuable consideration.

Judgment was granted to the plaintiffs for $171,000 plus pre-judgment interest.

The plaintiff, acting under an assignment from a trustee in bankruptcy, brought a partial summary judgment motion against the defendants for amounts allegedly owing on a shareholder loan account to the bankrupt company.

The defendants argued the loan was offset by payments made to creditors and unpaid wages.

The court rejected most of the defendants' evidence as lacking documentary support and found that payments made after bankruptcy could not be credited.

The court granted partial summary judgment for $161,724.75, finding no genuine issue for trial on that amount, while leaving the remaining $57,590.25 for trial.

The plaintiff pharmacy brought a motion to amend its statement of claim to add four new defendants and a new cause of action for conspiracy against the existing landlord defendants.

The plaintiff alleged the landlords conspired with the proposed defendants to sell the commercial property to them and oust the plaintiff.

The court dismissed the motion, finding that the proposed amended claim did not disclose a viable cause of action for conspiracy against the landlords, as they were merely exercising their legal right to sell their property to a bona fide third-party purchaser.

The plaintiffs brought a motion asking the Court of Appeal to reconsider its refusal to grant leave to appeal, arguing that a subsequent decision by the court changed the interpretation of Rule 53.03.

The Court of Appeal dismissed the motion, holding that it lacked jurisdiction under Rule 61.16(6.1) because a change in jurisprudence does not constitute a 'fact arising or discovered after' an order is made under Rule 59.06(2)(a).

The court further noted that even if it had jurisdiction, it would not exercise its discretion to reconsider the decision, and declined to extend the time for seeking leave to appeal to the Supreme Court of Canada.

The applicant lawyer sought a declaration that he had priority to non-forfeited cash bail funds based on an alleged assignment from the accused client, and an order setting aside or circumventing an estreatment order that had directed the balance to the respondent who had posted the bail money.

The court held that it had no jurisdiction to review, vary, or reconsider the criminal estreatment order under the Criminal Code, and that the proceeding was in substance an impermissible collateral attack.

In any event, the court found the applicant had no enforceable security interest under the Personal Property Security Act because the debtor had no rights in the collateral to assign after previously relinquishing all claims to the funds to the respondent.

The application was dismissed and the clerk was directed to release the funds to the respondent.

The plaintiff employer sued its former president for breach of a non-competition covenant and breach of fiduciary duty after he successfully bid against the employer on a public municipal tender.

The trial judge used blue-pencil severance to cure an ambiguous and unreasonable temporal restriction in the non-competition covenant and found the employee liable.

On appeal, the Court of Appeal held that blue-pencil severance was unavailable because the severed words were not trivial and there was no evidence the parties would have unquestionably agreed to the contract without them.

The Court also found no breach of fiduciary duty, as the employee did not use confidential information or compete unfairly.

The employee's cross-appeal was allowed and the action dismissed.

The appellant oral surgeon appealed a trial judgment enforcing a handwritten non-competition clause that barred him from practising within five miles of the respondent's office for three years after leaving an associate position.

The Court of Appeal held that although the respondent had some proprietary interest in regular referring dentists, this was not an exceptional employment case justifying a broad non-competition covenant.

Applying the governing framework for restrictive covenants in employment contracts, the court emphasized that non-competition clauses will generally not be enforced where a non-solicitation clause would adequately protect the employer's legitimate interests.

The appellant's role was that of a junior associate, he did not personify the practice, and no confidential information or trade secrets justified the broader restraint.

The appeal was allowed, the action dismissed, and costs awarded to the appellant.

The appellants sought to challenge an order directing that an assessment proceed without consideration of negligence and failure to follow instructions.

The Court of Appeal held that, because leave to appeal from the earlier order had been denied, it was not open to revisit the merits of that order on this appeal.

The assessment officer was therefore bound to proceed on the basis set by the prior order.

The appeal was dismissed with costs, although the court expressly stated it was not endorsing the proposition that no solicitor-client relationship existed.