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.

At a case conference, the plaintiff sought directions and a timetable for a summary judgment motion regarding an unpaid $138,134.33 instalment on a commercial roofing contract.

The defendants sought to amend their counterclaim to allege fraud on unrelated projects and requested further cross-examinations and productions.

The court held that the proposed counterclaim should not delay the summary judgment motion, emphasizing the need for proportionate and expeditious proceedings under Rule 1.04 and Hryniak.

The court directed that the summary judgment motion proceed without further cross-examinations or productions related to the counterclaim.

The appellant appealed a summary judgment enforcing a default judgment obtained by the respondent in Minnesota for the supply of defective goods.

The appellant argued that a forum selection clause in its quotation conferred exclusive jurisdiction on Ontario courts, that Minnesota lacked a real and substantial connection to the dispute, and that enforcement was contrary to public policy.

The Court of Appeal dismissed the appeal, finding the forum selection clause was permissive rather than exclusive, a real and substantial connection to Minnesota existed, and the public policy defence did not apply.

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.

The respondent to an application brought a motion to compel answers to questions refused during the cross-examination of the applicant's representative.

The underlying application sought a declaration that a first right of refusal was void.

The Master categorized the 20 refused questions into four categories and ordered the applicant to answer 19 of them, finding them relevant to the issues and credibility.

Costs of $5,000 were awarded to the moving party based on the parties' agreement regarding the threshold of success.

LAWPRO brought a motion for directions regarding an order requiring it to pay out professional liability insurance proceeds to the applicants.

Three lawyers formerly employed by the respondent law firm had appealed a subsequent order dismissing their motion to vary the payout order, which they argued was made without notice to them.

The Court of Appeal held that the payout order was not automatically stayed under rule 63.01(1) because it was not the order under appeal.

However, applying the RJR-MacDonald test, the Court granted a discretionary stay under s. 134(2) of the Courts of Justice Act, finding that the lawyers would suffer irreparable harm if the policy was exhausted and that fairness dictated they should not be prejudiced by the applicants' failure to provide them with notice of the original motion.

Non-party insured lawyers moved under Rule 37.14(1) to set aside or vary an earlier order permitting garnishment of the professional liability policy of a lawyer and law firm, where the prior order effectively exhausted the policy limits.

The court held the moving parties were persons affected by the earlier order and had failed to appear because they were not served and did not receive adequate, meaningful notice.

On the merits, however, the court rejected the new coverage and priority arguments, holding the underlying orders requiring payment of client trust funds engaged the policy and supported garnishment.

The motion was dismissed, and no costs were awarded because all sides bore some responsibility for the duplicative proceedings.

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 defendant brought a motion under Rule 24.01(1)(c) of the Rules of Civil Procedure to dismiss an action for delay where the plaintiff failed to set the matter down for trial within six months after the close of pleadings.

The court found that pleadings had effectively closed in 1996 but the action was not set down for trial until 2011, resulting in approximately 15 years of delay and nearly 26 years since the underlying events.

The plaintiff’s explanations, including health issues and disputes with former counsel, were insufficient to justify long periods of inactivity.

The court held that the delay was inexcusable and that the passage of time created a presumption of prejudice which the plaintiff failed to rebut.

Given faded memories, unavailable witnesses, and the risk that a fair trial was no longer possible, the action was dismissed for delay.

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.

The appellants appealed a trial judgment that awarded them damages against two respondents for a serious assault but dismissed the action against several other respondents.

The appellants challenged the trial judge's findings of fact regarding the involvement of certain respondents, the assessment of damages, the refusal to award punitive damages, and the refusal to make a Bullock or Sanderson order for costs.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact and holding that the damages and costs awards were within the trial judge's discretion.

The College of Physicians and Surgeons of Ontario brought a motion to lift a stay of the revocation of a physician's certificate of registration.

The stay had been granted pending the physician's appeal of a disciplinary finding of sexual abuse involving a patient with whom he had a long-term common-law relationship.

The College argued that a recent appellate decision upholding the mandatory revocation provisions eliminated any serious issue to be tried.

The court dismissed the motion, finding that the physician raised distinct constitutional and factual issues regarding the spousal exception and retroactive punishment, and that the balance of convenience continued to favour maintaining the stay.

The appellant appealed the dismissal of her action for abuse of process, which was based on the allegation that the respondents had brought prior Quebec proceedings challenging a will for an improper purpose.

The trial judge found that the Quebec action was not commenced for an improper purpose, and the Court of Appeal held this factual finding was entitled to deference.

The appellant also argued that the trial judge's comments at the outset of the trial demonstrated a reasonable apprehension of bias.

The Court of Appeal concluded that while some comments were troubling, they did not display a reasonable apprehension of bias when considered in totality.

The appeal was dismissed.