Steven Shoemaker

The appellant contractor appealed a summary judgment decision enforcing a stipulated remedy in a mediated settlement agreement.

The settlement required the appellant to remediate construction deficiencies by a deadline, failing which $30,000 held in court would be forfeited to the respondent.

The motion judge found the appellant failed to remediate the deficiencies and declined to grant relief from forfeiture.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's characterization of the clause as a forfeiture rather than a penalty, nor in her conclusion that enforcing the forfeiture was not unconscionable.

The parties executed minutes of settlement requiring the respondents to pay $250,000 in instalments, with a consent judgment held in escrow.

The respondents missed the final $95,000 payment, prompting the appellant to file a writ of execution.

The respondents successfully moved for relief from forfeiture under s. 98 of the Courts of Justice Act, and the motion judge rescinded the consent judgment, granting judgment for $95,000 instead.

The appellant appealed, arguing it should have been allowed to revert to its option to continue the action.

The Court of Appeal dismissed the appeal, finding no live issue that the option could be revived after being exercised.

The defendant brought a motion under Rule 56.01 of the Rules of Civil Procedure seeking security for costs against a corporate plaintiff with insufficient assets in Ontario.

The plaintiff conceded it lacked assets but argued that both the corporation and its sole shareholder were impecunious and that ordering security would stifle a meritorious claim for breach of contract and lost profits.

The court reviewed the jurisprudence governing corporate impecuniosity and the evidentiary burden on shareholders to show they cannot raise funds to post security.

Despite limited financial disclosure, the court accepted sworn evidence that both the corporation and its shareholder lacked the ability to provide security and found that denying the plaintiff the ability to proceed would result in injustice.

The motion for security for costs was therefore dismissed, though the successful plaintiff was denied costs due to inadequate disclosure during the motion.

The appellant appealed an Engineer's Report under the Drainage Act, seeking to redirect proposed drainage away from his property to a North Drain, remove his property from the drainage area, and eliminate his assessments.

The Tribunal heard competing expert engineering evidence regarding natural surface water flow and project costs.

The Tribunal accepted the municipal engineer's conclusion that natural overland flow is predominantly from northeast to southwest and that the proposed Drain A option was the most practical solution.

The Tribunal found the appellant's assessments for benefit and outlet to be fair and equitable.

The appeals were denied.