Marco Drudi

The Estate Trustee of a deceased shareholder sought oppression remedy relief and alleged breach of natural justice regarding the valuation of the deceased's 50% shareholding in a steel fabrication company.

The valuation was conducted by a professional valuator (Crowe) pursuant to a shareholders agreement.

The Estate Trustee challenged the valuation methodology, claiming the respondent director provided inaccurate and self-serving information regarding holdback amounts, related party expenses, and goodwill attribution.

The Estate Trustee also claimed it should have been involved in the valuation process.

The court dismissed the application, finding no oppression and holding that natural justice principles do not apply to expert determinations under commercial contracts.

The plaintiffs, Pilbro III Inc. and E.D. Carpenters Ltd., sought leave to bring a motion to compel the defendants to answer refused questions from examination for discovery.

This motion was brought after the action had been set down for trial and past multiple court-ordered deadlines for interlocutory motions.

The court dismissed the motion, emphasizing the need to combat the "culture of complacency" in civil litigation and enforce scheduling orders, despite acknowledging the defendants' own delays in providing undertakings.

The plaintiff, Marmak Holdings Inc., brought a motion for partial summary judgment seeking to recover a $250,000 deposit from the defendant purchaser, Iris Capital Inc., following the alleged repudiation of an Agreement of Purchase and Sale.

The plaintiff argued the deposit was forfeited after the defendant waived conditions but failed to close.

The defendant contended there were triable issues, including the enforceability of the agreement and whether the plaintiff properly accepted repudiation.

The court dismissed the motion, finding numerous complex and multi-layered genuine issues requiring a trial, emphasizing that *viva voce* evidence and credibility assessments were necessary and could not be fairly conducted on a paper record.

This decision concerns a re-assessment of damages in a breach of contract action, remitted by the Court of Appeal due to insufficient evidence in the initial trial.

The plaintiff, Fermar Paving Limited, sought damages from the defendant, 567723 Ontario Limited, for increased costs of aggregate and out-of-pocket expenses after the defendant repudiated a supply agreement.

The court found the plaintiff's evidence regarding the increased cost of aggregate to be largely inadmissible and unproven, particularly concerning cost estimates and missing source documents.

However, the court awarded damages for certain out-of-pocket costs that were adequately substantiated.

This motion concerned refusals to answer questions on the grounds of solicitor-client privilege in the context of a summary judgment motion.

The Plaintiff argued that the Defendants had impliedly waived privilege by putting their counsel's state of mind in issue through their pleadings and affidavits.

The Defendants submitted that no implied waiver occurred.

The court found that the Defendants did not implicitly waive privilege, as the receipt of legal advice was not material to the defence.

The core issue was whether a third party consented to a transaction, not the legal advice received by the Defendants.

The motion was dismissed with costs fixed at $5,000 payable by the Plaintiff to the Defendant Iris Capital.

The tenant appealed the dismissal of his application to compel the landlord's consent to a commercial lease assignment.

The Court of Appeal found that the application judge erred in applying the doctrine of waiver, which was not raised by the parties, and in failing to find that the landlord had unreasonably neglected and refused consent.

The landlord failed to respond within the lease's 15-day deadline and subsequently imposed unreasonable conditions, including a demolition clause and last-minute, overreaching requests for financial information.

The appeal was allowed, and the landlord was ordered to consent to the assignment.

The moving parties sought to enforce a settlement agreement entered into by three brothers to separate their financial interests in a family excavation and construction business.

One brother opposed the motion, arguing the agreement was merely an 'agreement to agree' and lacked essential terms.

The court found that the parties had reached a binding settlement on all essential terms, evidenced by the clear language of the agreement, their subsequent conduct, and partial performance.

The court declined to exercise its discretion to refuse enforcement, noting the strong public policy favouring settlements and the lack of any unconscionability or prejudice.

The motion was granted, and the settlement was ordered to be implemented with the assistance of an associate judge if necessary.

The applicant, 2708266 Ontario Inc. o/a Nelli Construction, sought damages after the respondent, the City of Toronto, improperly failed to award it "Contract B" following a Request for Tender (RFT) process.

The court previously found the City liable for failing to award the contract.

This endorsement addresses the effect of a broad limitation of liability clause (LL Clause) in the RFT.

Applying the three-pronged Tercon test, the court found the LL Clause applied to the circumstances, including post-bid conduct, and was broad enough to preclude liability for damages beyond the costs of preparing the bid.

The court also determined there was no explicit finding of a breach of the duty of good faith as per Wastech, and that public policy did not override the enforcement of the LL Clause.

Consequently, the City was not liable for damages beyond the bid preparation costs, though costs from the initial application were still payable to the applicant.

The applicant submitted the lowest bid for a municipal sewer and watermain project.

The City initially found the bid compliant but later disqualified it, concluding the applicant lacked the requisite corporate experience because its personnel's experience was gained at a different company.

The City then cancelled and reissued the tender.

The court found the applicant's bid was compliant, a Contract A was formed, and the City breached the contract by arbitrarily interpreting the experience requirements and cancelling the tender without a valid basis.

The court requested further submissions on the enforceability of a limitation of liability clause.

Following the dismissal of the applicant tenant's application for court approval of a lease assignment, the respondent landlord sought costs on a substantial or partial indemnity basis.

The underlying application had been dismissed without prejudice to being re-opened, but the issue became moot when the proposed new tenants withdrew.

The court declined to award costs to the landlord, finding that the dismissal was not a vindication of the landlord's legal position and that the litigation conduct of both parties was driven by mistrust.

No order as to costs was made.

The applicant tenant, a dentist, sought to assign his commercial lease to two younger dentists purchasing his practice.

The respondent landlord refused to consent, initially requesting a demolition clause and later demanding extensive financial information.

The tenant brought an application under the Commercial Tenancies Act, arguing the refusal was unreasonable.

The court found that neither party acted in good faith, as the landlord's requests were overreaching but the tenant failed to provide basic financial information.

The application was dismissed without prejudice, allowing the tenant to re-open it if the landlord continued to refuse consent after receiving reasonable financial disclosure.

This decision addresses costs and interest following a trial where the plaintiff's action was dismissed, and the defendants were awarded damages for breach of contract.

The court exercised its broad discretion under the Construction Act, guided by the Rules of Civil Procedure, including Rule 49.10 regarding offers to settle.

The defendants sought substantial indemnity costs, but the court awarded partial indemnity costs for the period prior to December 31, 2019, and substantial indemnity costs for the period after, due to the plaintiff's grossly unreasonable settlement expectations which caused the case to proceed to trial.

The court also adjusted disbursements, including expert fees, and determined prejudgment and post-judgment interest rates.

The Gatti Group Corp. (GGC), a contractor, claimed a lien of $343,429.76 against John and Claudia Zuccarini for a residential renovation project.

The Zuccarinis denied the claim and counterclaimed for $382,371.50 for breach of contract.

The court found that a fixed-price contract existed between the parties, which GGC fundamentally breached by demanding additional payments not required by the contract and by ceasing work before completion.

The court dismissed GGC's claim and discharged its lien, awarding the Zuccarinis $332,667.44 in damages for change order overpayment, deficiency correction costs, completion costs, an assigned debt, and a returned deposit.

This is an appeal from a trial judgment finding breach of contract and awarding damages.

Fermar Paving Limited (Fermar) sued 567723 Ontario Ltd. o/a Winter’s Pit (Winter’s Pit) for repudiating an agreement to supply aggregate.

The Court of Appeal upheld the trial judge's finding that a valid contract existed and was repudiated by Winter's Pit, dismissing the appeal on liability.

However, the Court found that the trial judge erred in quantifying damages due to insufficient evidentiary support, as the calculations relied on summaries without the underlying source documents or expert testimony.

Consequently, the damages award was set aside, and the issue of damages was remitted to the Superior Court for re-quantification.

No costs were awarded due to divided success.

The defendants brought a renewed motion for security for costs against the plaintiff corporation.

The court found that the plaintiff's financial statements, which showed consistent deficits and a lack of assets, provided good reason to believe the plaintiff had insufficient assets in Ontario to pay a potential costs award.

The court ordered the plaintiff to post $95,000 in security for costs, applying a rough justice apportionment to account for the defendants' counterclaim.

The Defendants brought a motion for an order requiring the Plaintiff corporation, The Gatti Group Corp. (GGC), to post $124,913 as security for costs, pursuant to Rule 56.01(1)(d) of the Rules of Civil Procedure, alleging GGC lacked sufficient assets in Ontario.

The court applied the two-step test for security for costs motions, focusing on the initial onus on the moving party to establish "good reason to believe" asset insufficiency beyond mere conjecture.

The court found that the Defendants failed to provide adequate evidence of GGC's asset insufficiency, as their arguments primarily focused on the merits of the case or presented dubious and outdated information.

Consequently, the motion for security for costs was denied without prejudice, allowing it to be brought again with further evidence.

A companion motion for undertakings and refusals was adjourned.

The plaintiff, Fermar Paving Limited, sued the defendant, 567723 Ontario Limited (Winter's Pit), for breach of a contract to supply granular aggregate for a highway construction project.

The defendant repudiated the agreement, citing license limitations and other disputes, instructing the plaintiff to remove its equipment.

The court found the September 1, 2010 agreement to be legally binding and enforceable, rejecting arguments of illegality, vagueness, uncertainty, frustration, and non est factum.

The court determined that the defendant breached the contract by repudiation and awarded the plaintiff damages for the increased costs of sourcing aggregate from alternate suppliers.

The Bank of Montreal (BMO) opposed the confirmation of a referee's report regarding a costs award in a CCAA proceeding.

The referee had fixed BMO's costs at $50,000 on a partial indemnity basis, finding that BMO's participation in the lien claimant litigation contributed little and was largely unnecessary, limiting costs to "salvage costs." BMO argued its extensive costs were caused by the Private Mortgagees' actions in asserting priority over lien claimants, which forced BMO's full participation.

The court, applying a deferential standard of review for referee reports, found no patent misapprehension of evidence or error in principle by the referee.

The court upheld the referee's decision, concluding that BMO should have sought costs from lien claimants or put Private Mortgagees on notice of its claim.

BMO's alternative argument to tack costs onto its security via debenture provisions was also rejected as res judicata, as the referee had already determined reasonable costs.

Vipond Inc. successfully moved for summary judgment and subsequently sought costs and interest.

The court determined that Bondfield Construction Company Limited and Fortis Electric Ltd. were jointly liable for partial indemnity non-motion costs, with Bondfield solely liable for substantial indemnity motion costs due to its unreasonable conduct and failure to accept a reasonable settlement offer.

The court also awarded prejudgment interest at the Courts of Justice Act rate of 0.8% and post-judgment interest at 3%, rejecting higher contractual rates due to lack of evidence.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff contractor's action for additional compensation arising from unexpected subsurface soil conditions during a sewer construction project.

The municipality argued the claim was barred by the contract's strict notice provisions, a release executed by the contractor, and the expiry of the two-year limitation period.

The court dismissed the motion, finding genuine issues for trial on all three grounds due to an insufficient evidentiary record provided by the municipality, particularly regarding the parties' course of conduct, the scope of the release's exceptions, and the exact date the claim was discovered.