Michael A. Polvere

The plaintiff brought a motion to set aside an administrative dismissal of her claim filed in 2018 concerning ownership of a thirty-foot strip of land.

The plaintiff alleged she purchased the property in 1994 from the prior owner, but the defendant acquired title in 2014.

After filing her claim in 2018, the plaintiff took no further action for approximately six years until the registrar administratively dismissed the claim in Fall 2024.

The court applied the four-factor test from Scaini v. Prochnicki to assess whether the dismissal should be set aside, considering whether there was a satisfactory explanation for delay, whether the delay was caused by inadvertence, whether the plaintiff moved promptly to set aside the dismissal, and whether the defendant suffered prejudice.

The court found the plaintiff had not met her onus and dismissed the motion.

The Court of Appeal for Ontario considered the issue of costs following an appeal between the Township of Adelaide Metcalfe and the Municipality of Strathroy-Caradoc.

The court determined that there would be no costs of the appeal, as the determinative issue was not raised before the Divisional Court.

The costs previously ordered by the Divisional Court were set aside.

The plaintiff, Liberty Tax Service, Inc., sought an interlocutory injunction to restrain the defendants from violating post-termination non-compete and non-solicitation obligations under a franchise agreement, and to compel the return of client records.

The court found a strong prima facie case of competition but not of solicitation, and ordered the return of documents, but declined to grant an interlocutory injunction due to the lateness in the tax season and the potential prejudice to innocent clients.

The Court of Appeal for Ontario heard an appeal concerning a "Lender Fee" in a multimillion-dollar loan agreement.

The motion judge had ruled that the balance of the fee was an unenforceable penalty clause and granted relief against forfeiture, also suggesting it was not earned as the loan was not advanced.

The Court of Appeal reversed this decision, holding that the Lender Fee was consideration for obtaining the loan commitment, not a stipulated remedy for breach, and therefore the doctrines of unenforceable penalty clauses and relief against forfeiture did not apply.

The court further clarified that the fee was not contingent on the loan being advanced based on the contract's terms.

The appeal was allowed, ordering the balance of the fee to be paid to the lender.

The plaintiff, a trucking broker, sought summary judgment against two defendant carriers for damages arising from the theft of a poultry shipment, including the value of the goods and significant customs duties levied due to the theft occurring in Canada.

The defendants denied liability, citing lack of notice and unforeseeable damages.

The court dismissed the plaintiff's motion for summary judgment, finding that the factual matrix, including conflicting evidence on sub-brokering authorization, untested expert opinions, and unresolved issues regarding notice of claim under the Carriage of Goods Regulation, was not suitable for disposition under Rule 76 simplified procedure.

The matter was directed to proceed to trial.

This case involved cross-motions for summary judgment concerning a terminated mortgage commitment letter.

The plaintiffs (developer) sought the return of a lender fee, alleging the defendants (lender) made unreasonable demands and acted in bad faith, leading to the termination.

The defendants sought the outstanding balance of the fee.

The court determined that a $100,000 deposit paid by the developer was a valid liquidated damages clause and could be retained by the lender.

However, the remaining $326,500 of the lender fee was deemed an unenforceable penalty, as the lender provided insufficient evidence of damages incurred for work not performed.

The court granted the plaintiffs' motion for summary judgment for the $326,500 and dismissed the defendants' motion.

The plaintiffs, minority shareholders, brought a motion for a mandatory interlocutory injunction seeking reinstatement to the board of directors and an order compelling the corporation to declare dividends.

The plaintiffs had previously sued the corporation and majority shareholders for $7.5 million for conspiracy, fraud, and oppression.

The court dismissed the request for mandatory injunctions, finding the plaintiffs did not establish a strong prima facie case for reinstatement due to their conflict of interest, nor for an immediate dividend distribution while the corporation's liability in the lawsuit remained undetermined.

However, the court granted a non-mandatory injunction preserving the status quo by prohibiting the corporation from expending funds outside the ordinary course of business.

The appellants, comprising an individual and two corporations, appealed a lower court decision that dismissed their application for specific performance.

They sought to compel the respondent, a separated spouse, to execute a Non-Solicitation and Non-Competition Agreement (NCA) as part of a corporate share sale.

The application judge found no evidence that the respondent had agreed to the NCA.

The respondent cross-appealed the costs award from the lower court.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's finding regarding the NCA.

Leave to cross-appeal costs was denied, as the appellate court found the original costs award to be reasonable despite a potential misdirection by the application judge.

The plaintiff, Crawford Packaging Inc., brought a motion for an interlocutory injunction against its former salesperson, Orazio Dorata, and corporate defendants, alleging breach of non-competition, non-solicitation, and employee poaching clauses in Dorata's employment contract, as well as failure to return company property.

The court dismissed the motion, finding that the plaintiff failed to meet the high threshold for a quia timet injunction, as no actual harm had occurred, and any future harm was speculative.

The court also noted that contractual provisions deeming fiduciary duty or irreparable harm are ineffective if not supported by legal standards.

The plaintiff rental car company moved for summary judgment against the defendant renter for damages to a rented vehicle.

The vehicle was involved in a rollover accident while being driven by the defendant's son, an unauthorized driver with a suspended license.

The court found no genuine issue for trial regarding liability, as the unauthorized use invalidated the optional collision damage waiver regardless of whether the defendant consented to her son driving.

However, the court declined to grant summary judgment on the quantum of damages, finding the plaintiff's evidence insufficient, and ordered a hearing for the assessment of damages.

The appellants, vendors of a commercial farm property, appealed a partial summary judgment order that declared the agreement of purchase and sale valid but denied specific performance and ordered a trial on damages.

The appellants had refused to close the transaction, alleging unconscionability, non est factum, collusion and conspiracy.

The motion judge made adverse credibility findings against the appellants, concluding they suffered from sellers' remorse.

The Court of Appeal allowed the appeal, finding that the motion judge erred in granting partial summary judgment when genuine issues of fact and credibility existed that were inextricably intertwined with the counterclaim and third party claim against real estate agents, creating a risk of duplicative or inconsistent findings.

The appellant appealed a decision granting the respondent a declaration that a lease to a competing fitness facility was void and an injunction preventing the appellant from performing development services.

The core dispute concerned the interpretation of a non-competition agreement and a right of first refusal executed in connection with the sale of fitness facilities.

The application judge found that the non-competition agreement took precedence over the right of first refusal and prevented the lease.

The Court of Appeal allowed the appeal, finding that the application judge erred by relying on negotiations to interpret the contracts and by misunderstanding the factual matrix.

The court held that the plain language of the two agreements, read together, permitted the lease while requiring compliance with the non-competition agreement and the right of first refusal.

Dr. Grochowski, an emergency room physician, sued Adam Young for defamation over online comments published by The Sarnia Observer.

Young's comments alleged Grochowski prescribed highly addictive medication without close inspection.

The court found the statements defamatory, rejecting Young's defenses of justification, fair comment, and responsible communication.

The court awarded Dr. Grochowski $12,500 in general damages plus prejudgment interest, and $2,000 in costs for a pleading amendment.

The applicant, GoodLife Fitness Centres Inc., sought an injunction to enforce a non-competition agreement (NCA) against the respondents, Rock Developments Inc. and Rocco Tullio.

The NCA was executed when GoodLife acquired Tullio's previous fitness business.

The respondents subsequently entered into a lease agreement with Movati Athletic, a competing fitness facility, for a property that was a specific concern during the original negotiations.

The court found that the respondents breached the NCA by having a 'business interest' in the competitor and providing 'development services' to facilitate the competing gym's establishment.

The court rejected arguments that a Right of First Refusal (ROFR) permitted the lease or that the NCA was unenforceable due to its broad territorial scope, emphasizing the clear intent of the parties.

The application for an injunction was granted.

The appellant appealed a judgment from the Superior Court of Justice for an amount less than $50,000.

The Court of Appeal determined that such an appeal falls within the jurisdiction of the Divisional Court, not the Court of Appeal, pursuant to section 19(1)(a) of the Courts of Justice Act.

The court clarified that jurisdiction is determined by the amount awarded, not the amount claimed.

The appeal was quashed and costs were awarded to the respondent.

The plaintiff, Enterprise Rent-A-Car Canada Company, sought summary judgment against the defendant, George Bryan, for damages to a rented vehicle.

The vehicle was stolen and subsequently involved in an accident.

The defendant argued that a damage waiver in the rental agreement applied and that the plaintiff's claimed damages were excessive and some credit card payments unauthorized.

The court found that the defendant failed to fulfill contractual obligations, specifically by not returning the original ignition key and not ensuring the vehicle ignition was off at the time of theft, thereby invalidating the damage waiver.

The court also determined that the damages claimed were not excessive and the credit card charges were authorized.

Summary judgment was granted in favour of the plaintiff.

The plaintiffs sought summary judgment for outstanding payments for solar panel installation work and dismissal of the defendants' counterclaim.

The defendants counterclaimed for damages due to alleged negligence and breach of contract by the plaintiffs.

The court granted partial summary judgment in favour of two individual plaintiffs (Ian Poss and Scott Oliver) for their claims, dismissing the counterclaims against them, finding no genuine issue for trial regarding their work.

However, summary judgment was denied for the corporate plaintiffs due to substantial factual conflicts and credibility issues requiring a full trial.

The court also declined to pierce the corporate veil of the defendant corporations.

An appeal concerning the calculation of a bonus payable to a subordinate debt and equity financing fund upon the sale of a borrower company.

The lower court determined the bonus at $242,552.79 based on net proceeds excluding $55.125 million in debt created through a pre-sale reorganization.

The appellate court reversed in part, holding that the $55.125 million should be included in the bonus calculation as it formed part of the proceeds of sale and was created in violation of the loan agreement's consent requirement.

The court upheld the lower court's rejection of arguments that the bonus contravened the criminal rate of interest, was unconscionable, or was ultra vires the lender's statutory mandate.

The bonus was recalculated at $793,800.48.

The appellant appealed a damages decision from the Superior Court of Justice.

The motion judge had declined to award damages due to the appellant's non-compliance with a pre-trial conference order regarding the filing of evidence.

The Court of Appeal found that although the appellant did not comply with the order, she had filed an affidavit with supporting documentation and a factum detailing her damages claim.

The appellate court held that the motion judge should have afforded the appellant an opportunity to file compliant evidence to support her claim.

The defendants brought a motion to set aside a noting in default and default judgment obtained by the plaintiff bank.

The court applied the five-part test from Mountain View Farms and found that the motion was brought promptly, there was a plausible explanation for the default due to ongoing refinancing discussions, and the defendants had an arguable defence regarding alleged errors in the loan amount and term.

The motion was granted and the default judgment was set aside.