Mark Irwin Wainberg

This is a costs endorsement from the Court of Appeal for Ontario concerning multiple appeals and a motion.

The court ordered that all parties bear their own costs for the appeals and the motion before the lower court, indicating a balanced outcome on the issue of costs.

This appeal addresses whether limited partners can bring a common law derivative action on behalf of a limited partnership.

The Court of Appeal for Ontario held that while limited partners have direct causes of action against a general partner for breach of fiduciary duty or contract, negating the need for a derivative action in such cases, a common law derivative action may be available against third parties who have harmed the limited partnership, particularly when the general partner is in a conflict of interest and refuses to act.

The court dismissed the derivative action against the general partner and its director but granted leave for a derivative action against the three third parties, establishing a test for such leave.

The Applicants, limited partners in Binscarth Holdings L.P., sought declarations that they were entitled to annual cash distributions of the partnership's net income, arguing the Limited Partnership Agreement (LPA) contravened the Limited Partnerships Act and the Accumulations Act, or that a specific tax distribution clause in the LPA mandated a higher payout.

The court dismissed all claims.

It found that the Limited Partnerships Act only requires profits to be credited to capital accounts, not mandating cash distributions, and that the LPA's discretionary distribution power was valid.

The court also determined the Accumulations Act did not apply to this commercial partnership transaction and that the applicants had waived any rights under it.

Finally, the court upheld the general partner's interpretation and calculation of tax-related distributions under the LPA.

The applicant mother brought a motion for temporary child and spousal support and a family law restraining order against the respondent father.

The respondent had deliberately failed to provide court-ordered financial disclosure for four years, complicating the assessment of his income.

The court preferred the applicant's expert's preliminary assessment of the respondent's income at $890,000 for 2018, rejecting the respondent's lower self-reported figures.

Consequently, the court ordered temporary monthly table child support of $13,502 and spousal support of $12,800 (low range of SSAG), both retroactive to January 1, 2018.

The parties' proportionate shares for section 7 expenses were set at 75% for the respondent and 25% for the applicant.

A family law restraining order was also issued against the respondent, mirroring prior probation terms, due to the applicant's legitimate fear for her safety, supported by the respondent's history of violence and subsequent breaches of orders involving a second spouse.

The plaintiff moved to strike portions of the defendants' statement of defence and counterclaim, which alleged civil fraud, fraudulent misrepresentation, civil conspiracy, and equitable set-off.

The defendants' pleadings detailed a scheme where the plaintiff allegedly overbilled for goods and services and provided kickbacks to a former employee.

The court reviewed the requirements for pleading material facts and particulars, especially for allegations of fraud and conspiracy, and the elements of equitable set-off.

The motion to strike was dismissed, conditional on the defendants providing further particulars regarding false purchase orders, invoices, and claimed damages.

This addendum addresses costs submissions following a prior decision that fixed terms of a Full and Final Release and made no order as to costs.

The applicant sought $2,500 in costs, relying on an informal offer to settle made four days before the motion.

The respondents opposed, citing their own offers and procedural issues, arguing against altering the original costs decision.

The court, after considering all submissions, caselaw, and Rule 57.01, maintained its original decision that each party should bear their own costs, noting that the lawyers had not acted reasonably concerning a mutual release.

The applicant and respondents, neighbours, settled an encroachment dispute, with a term requiring a mutual release.

Disagreement arose regarding the release's terms, specifically whether the applicant's wife, Lynn Horton, should be included and the effective date of the release.

The respondents brought a motion under Rule 49.09 to enforce the settlement by settling the terms of the mutual release.

The court found that the inclusion of the applicant's wife and an effective date up to the signing of the final release was reasonable, given previous agreements between counsel and the parties' desire for a "clean break" from a contentious neighbourly relationship.

The court ordered the mutual release to include both the applicant and his wife, effective to the date of signing.

No costs were awarded.

The plaintiff sought enforcement of a written agreement entitling her to 50% of the net proceeds from the sale of a residential property in exchange for assisting with the sale.

The court held that the agreement was unenforceable because it constituted remuneration for services connected with a trade in real estate while the plaintiff was not registered under the Real Estate and Business Brokers Act, 2002.

In the alternative, the court found the agreement unconscionable due to the defendant’s vulnerability and the grossly improvident bargain.

The plaintiff had taken advantage of the defendant’s severe depression and unequal bargaining position to obtain half the equity of the property for relatively minor work.

The plaintiff’s claim was dismissed and she was ordered to repay funds previously garnished under a default judgment, subject to limited offsets.