Lucas E. Lung

A band member leased lands from the Walpole Island First Nations Band Council to operate a hunting camp and made substantial improvements including constructing a lodge.

The central dispute concerned whether the band member was entitled to credit against outstanding rental payments for the cost of improvements made.

The trial judge awarded credit of $532,500 for improvements plus a $40,000 deposit, less $430,000 in rent owing, resulting in a judgment of $142,500 in the band member's favour.

The band appealed, arguing that the trial judge failed to apply section 2(3) of the Indian Act, which requires Band Council resolutions for binding arrangements.

The appeal court upheld the trial judgment, finding that the Band Council had undertaken to credit the band member for leasehold improvements and that the band member was entitled to aggravated damages for an improper eviction.

The court-appointed Receiver brought a motion to extend an ex parte Mareva injunction against the spouse of the debtors' principal and to repatriate misappropriated HST funds.

The debtors had concealed a $986,594.96 HST refund and diverted it to an account controlled by the spouse.

An intervenor claimed the funds were repayment for a loan, but the court dismissed this as a fraudulent attempt to divert the funds.

The court found the Receiver made full and frank disclosure, was not required to commence an action against the spouse first, and did not need to provide an undertaking as to damages due to the Receivership Order.

The motion was granted, the injunction extended, and immediate repatriation of the funds ordered.

The plaintiffs, VoIP service providers, sought an interlocutory injunction to prevent the defendant from suspending network carrier services and to allow the migration of telephone numbers without paying port-out fees.

The court determined the requested relief was a mandatory injunction, requiring a strong prima facie case.

The court dismissed the motion, finding the plaintiffs failed to establish a strong prima facie case for breach of contract or intentional interference with economic relations, failed to demonstrate irreparable harm, and that the balance of convenience favoured the defendant.

The court also noted the plaintiffs did not come to court with clean hands due to unpaid invoices.

Following dismissal of a defendant law firm’s summary judgment motion in a securities class proceeding, the court addressed costs of the motion.

The plaintiff sought $150,000 in partial indemnity costs, asserting extensive preparation and the importance of the motion.

Applying Rule 57 of the Rules of Civil Procedure and s. 31(1) of the Class Proceedings Act, 1992, the court considered indemnity principles, proportionality, complexity, and the parties’ reasonable expectations.

Because the motion raised novel issues that would ultimately be determined at trial and did not resolve the merits, the court fixed costs but ordered them payable in the cause.

Costs were set at $100,000 all-inclusive on a partial indemnity basis.

Following a successful motion to amend a statement of claim to add new parties under Rule 5.04 of the Rules of Civil Procedure, the plaintiffs sought costs against the proposed defendants who opposed the amendment.

The plaintiffs requested partial indemnity costs with a portion on a substantial indemnity basis relying on a prior offer to settle.

The court held that the offer to settle contained no element of compromise because it was served before the responding parties filed materials and before the plaintiffs were entitled to costs.

Applying the principles under the Courts of Justice Act and Rule 57.01, the court fixed costs on a partial indemnity basis and declined to consider the offer to settle.

The plaintiffs brought a motion to amend their statement of claim to add several new defendants, including an introducing broker, after discovering their involvement in the loss of the plaintiffs' investments.

The proposed broker defendants opposed the motion, arguing the claims against them were not tenable at law.

The Master granted the motion, finding that the proposed negligence claims were not clearly impossible of success and that the duty of care analysis should be left for a full evidentiary record.