Leon J. Melconian

In an oppression application under s. 248 of the Business Corporations Act, the applicant sought declarations of 50% ownership and broad accounting relief concerning multiple closely-held ventures.

The court found, on objective intention and course-of-conduct evidence, that the parties had agreed to equal ownership and profit-sharing in two ongoing ventures, and that non-disclosure and non-accounting conduct was oppressive and unfairly prejudicial.

Relief against one corporation tied to a restaurant sold in 2018 was statute-barred under the Limitations Act, 2002.

The court declared 50% share ownership in the remaining corporations, ordered issuance of shares, full financial disclosure and accounting, and payment over of any amounts found owing.

Costs of $30,000 were awarded to the applicant.

The applicant, Unitop, sought a declaration and injunction against the respondent, Exclusive, alleging breach of a 2015 default judgment and trademark infringement/passing off.

Unitop claimed Exclusive's "ORIGINAL SESAME" product, with similar packaging and UPC codes, infringed on Unitop's "SESAME SNAPS" intellectual property.

The court found the 2015 default judgment ambiguous and not applicable to Unitop's new packaging design (adopted in 2020) or Exclusive's "ORIGINAL SESAME" product (introduced in 2021).

The court also determined that Unitop failed to prove valid and enforceable trademark or copyright rights in its new packaging design or establish the elements of passing off, particularly distinctiveness and confusion.

The application was dismissed.

This appeal concerned a pre-construction agreement of purchase and sale for a condominium unit.

The vendor purported to terminate the agreement, alleging the purchasers breached a clause prohibiting leasing without consent.

The application judge found the termination wrongful and granted specific performance.

On appeal, the Court of Appeal affirmed the lower court's decision, holding that the vendor lost its right to terminate by failing to act within a reasonable time after the alleged breach.

The Court further upheld the award of specific performance, finding that damages were an inadequate remedy given the advantageous terms of the original agreement, the rising real estate market, the purchasers' tied-up deposit, and the vendor's bad faith in attempting to re-sell the unit to related parties at an undervalue.

The issue regarding the subsequent lease to tenants became moot.

Following a judgment granting the applicants relief from forfeiture and specific performance for a condominium unit, the applicants sought full indemnity costs of $73,535.05 based on the respondents' alleged grave misconduct.

The respondents argued for partial indemnity costs in the range of $25,000 to $35,000.

The court found that while the respondents engaged in misconduct, it did not warrant an elevated costs award.

The court awarded the applicants partial indemnity costs fixed at $45,000 inclusive of disbursements and HST.