Mark Adilman

This is an appeal from a judgment granting partial summary judgment in favour of the respondent, Learmont Roofing Ltd. The appellants, Learmont Construction Ltd. et al., argued that the motion judge erred in finding no genuine issues for trial and in granting partial summary judgment without considering the risk of inconsistent findings with ongoing counterclaims.

The Court of Appeal found no merit in these arguments, agreeing that no genuine issues for trial were raised and that the counterclaims were not intertwined with the trust claim in a way that would lead to factual inconsistencies.

The appeal was dismissed.

Zeifmans LLP, a judgment creditor of Mitec Technologies Inc., brought an application seeking an oppression remedy against Mitec and its directors (Schwartz, Mandel, Rudin) and leave to commence a derivative action.

The court granted Zeifmans standing as a complainant for the oppression remedy, finding that Mitec's payment to shareholders before settling Zeifmans' invoice, despite a prior agreement and sufficient funds, was unfairly prejudicial and disregarded Zeifmans' reasonable expectations.

The court imposed personal liability on the directors due to their bad faith.

However, the court denied leave for the derivative action, finding it was not in the best interests of the corporation given its limited financial resources and lack of stakeholder support.

The court issued supplementary reasons for decision following a summary judgment motion where the plaintiff, Select Comfort Corporation, was granted judgment to enforce a foreign judgment.

Plaintiff's counsel advised of a mistaken submission regarding the applicability of the Limitation Convention, which was incorrectly argued to contain a four-year limitation period under Ontario law.

Despite this error, the court confirmed its original decision, finding that the defendant's public policy defence based on alleged circumvention of limitation periods still failed, as enforcing a foreign judgment obtained in a jurisdiction with a real and substantial connection, even if the action would have been statute-barred in Ontario, does not offend Canadian public policy.

The plaintiff, Select Comfort Corporation, brought a summary judgment motion to enforce a default judgment obtained in Minnesota against the defendant, Maher Sign Products Inc. Maher Sign Products Inc. defended on grounds including lack of real and substantial connection, an exclusive choice of forum clause favoring Ontario, public policy (statute-barred claim), and fraud.

The court found a real and substantial connection to Minnesota, clarified that a forum selection clause does not oust jurisdiction simpliciter but rather relates to the exercise of jurisdiction, and dismissed the public policy and fraud defences.

The motion for summary judgment was granted, enforcing the foreign judgment.

The applicant property owner sought a declaration that a 'right of first refusal to purchase' granted to the respondent upon the sale of the property was void due to frustration.

The applicant argued that the withdrawal of an adjacent landowner from a planned land assembly rendered the development project impossible.

The court determined that the right was an option to purchase creating an interest in land, not a mere right of first refusal.

The court dismissed the application, finding that the withdrawal of the adjacent landowner was a foreseen event provided for in the parties' agreements and did not render the provision of the commercial space impossible.

The court also held that the right did not violate the rule against perpetuities.

A paving contractor sought payment for unpaid invoices relating to asphalt work performed at two Canada Post facilities.

The defendant alleged the work was deficient and counterclaimed for remedial costs, asserting the plaintiff failed to perform the contract as originally agreed.

The court held that the parties had orally varied their written contract at a pre‑construction meeting, changing the scope of work from removal and replacement of asphalt to grinding and repair while maintaining the same price structure.

The court rejected the defendant’s credibility on key issues and found no evidence of complaints from the project owner or of required remedial work.

Judgment was granted for the unpaid balance and the counterclaim was dismissed.

Following the dismissal of a bank’s summary judgment motion in an action alleging breach of trust and negligence, the plaintiffs and a co-defendant sought costs.

The court considered Rule 49 settlement offers but found they did not promote compromise, as they effectively required the moving party to abandon its motion.

Although the bank succeeded on the legal issue that no trust existed, a negligence issue remained requiring trial.

Given the bank’s unsuccessful motion and the limited value of the underlying claim, the court found the motion unnecessary and awarded substantial indemnity costs.

Costs of $15,000 were awarded to the plaintiffs and $15,000 to the co-defendant.

The defendant bank brought a motion for summary judgment seeking dismissal of claims alleging it negligently released $50,000 held in a bank account that had been ordered by a court as security for child support obligations.

After the death of the account holder, the Canada Revenue Agency issued a Requirement to Pay for tax debts and the bank remitted the funds.

The plaintiffs argued the funds should have been paid to satisfy child support arrears, and that the bank had been aware of efforts by the estate trustee and the Office of the Children’s Lawyer to arrange payment of those arrears.

The court held that significant factual issues remained, including whether the arrears should have been paid before the Requirement to Pay and whether the bank’s conduct created liability through negligence or estoppel.

Applying the summary judgment principles articulated in Combined Air Mechanical Services Inc. v. Flesch, the court concluded that the evidence could not be fully appreciated without a trial.

The applicant brought a motion for interim child and spousal support, production of financial disclosure, and related relief.

The respondent repeatedly failed to comply with prior court orders requiring disclosure of personal and corporate financial records relevant to determining income for support purposes.

Relying on s. 19 of the Federal Child Support Guidelines, the court held that income may be imputed where a payor fails to provide required disclosure or where income may be diverted through a corporation.

Due to incomplete disclosure and evidence of substantial unexplained deposits into personal accounts, the court imputed income to the respondent for interim support purposes.

The court also ordered further production of corporate records, granted leave for questioning, issued a non‑depletion order under the Family Law Act, and awarded substantial indemnity costs.

The applicant sought an order removing a Notice of Security Interest registered on title to her residential property in relation to a rented hot water system.

She also sought orders compelling the respondent to sell or rent the system and other related relief.

The court held that the respondent was entitled under the Personal Property Security Act to register the notice of security interest and that the applicant had not satisfied the statutory requirements for discharge.

Material facts regarding the contractual relationship were in dispute, making the matter unsuitable for determination by application rather than action.

The court concluded it lacked jurisdiction to order removal of the notice absent payment into court or fulfillment of statutory grounds.