Michael A. Polvere

The plaintiffs sought leave to amend their Statement of Claim to add numerous corporate and individual defendants in an action alleging oppression and wrongful dismissal related to a restaurant business.

The motion was brought under Rule 5.04(2) to add parties and rectify an improperly filed amended statement of claim.

The court allowed the addition of some proposed defendants, including individuals connected to the directing minds of the business and certain corporate entities, finding that the 'litigating finger' pointed towards them.

However, the court dismissed the request to add a second group of 'New Franchisees,' determining that the pleading did not disclose a tenable cause of action against them and that their addition would lead to unnecessary expense and delay.

Costs were awarded to both partially successful parties.

Wittington Properties Limited applied for declarations that GoodLife Fitness Centres Inc. had lost its right to extend a lease due to ongoing breaches related to gross revenue reporting and a competition provision.

GoodLife brought a cross-application for declarations affirming its right to extend the lease and, in the alternative, relief from forfeiture.

The court found GoodLife was in default of the lease regarding both gross revenue reporting and the competition provision, and that GoodLife had not proven its breaches were de minimis or that Wittington had waived its rights or acted in bad faith.

Consequently, the court declared GoodLife had no right to extend the lease and ordered vacant possession.

The applicants sought declaratory relief to deny a bonus provision to the respondent, arguing it was criminal, unconscionable, or ultra vires.

The court found a bonus was owing but accepted the applicants' expert opinion on its quantum, significantly reducing the amount claimed by the respondent.

Both parties sought costs.

The court considered contractual full indemnity costs versus partial indemnity, noting the divided success and the absence of settlement offers.

Ultimately, the court ordered no costs, with each party bearing their own, and denied interest on the judgment.

The applicants sought a declaratory order that a bonus payment clause in a 2011 loan agreement with the Business Development Bank of Canada (BDC) was unenforceable, arguing it contravened section 347 of the Criminal Code, was unconscionable, or was ultra vires to BDC's statutory objects.

The court dismissed all these arguments, finding the interest rate was not criminal, the transaction was not unconscionable given the applicants' sophistication, and the bonus provision was within BDC's powers.

However, the court ruled on the calculation of "net proceeds" for the bonus, allowing deductions for certified indebtedness, income taxes, and accounting fees, significantly reducing the bonus amount payable to the respondent.

The defendants sought leave to appeal to the Divisional Court from an order dismissing their motion to discharge a Certificate of Pending Litigation (CPL).

The court applied the two-part test for leave under Rule 62.02(4), requiring either a conflicting decision on a matter of principle or good reason to doubt the correctness of the order combined with matters of general importance.

The court found no conflicting decisions and no basis to doubt the correctness of the lower court's findings regarding the plaintiff's claim for a constructive trust, the right to trace funds, or the absence of material non-disclosure.

Furthermore, the court found no error in the exercise of discretion to maintain the CPL.

The application for leave to appeal was dismissed.

The plaintiff and defendant entered into agreements characterized by the defendant as a training and brokerage license agreement.

The plaintiff paid a $29,500 fee.

After the defendant terminated the agreement, the plaintiff sought rescission and damages under the Arthur Wishart Act, arguing the relationship was a franchise.

The court found that the arrangement met the statutory definition of a franchise, as the fee was a condition of entering the relationship, the business was associated with the defendant's trademarks, and the defendant exercised significant control.

The court granted summary judgment for the plaintiff, awarding $99,835 in damages.

The plaintiff was successful in opposing the defendants' motion to discharge a Certificate of Pending Litigation and sought partial indemnity costs of $38,559.37.

The defendants argued the costs were excessive but failed to provide their own Costs Outline.

The court found the plaintiff's time spent and fees claimed were fair, reasonable, and proportional given the complexity of the motion and the defendants' conduct.

Costs were fixed at the requested amount of $38,559.37.

The plaintiffs purchased a property that had been previously owned and remediated by the defendant, Chrysler.

The plaintiffs sued Chrysler for negligence and negligent misrepresentation, alleging inadequate remediation and reliance on public statements made by Chrysler about the clean-up.

Chrysler moved for summary judgment.

The court granted the motion, finding that caveat emptor applied, Chrysler owed no duty of care to a subsequent purchaser, and there was no special relationship or reasonable reliance to support a claim for negligent misrepresentation.

The plaintiff in a defamation action sought leave to amend his statement of claim to add allegations of further defamatory statements by the existing defendant and to add a psychiatrist as a new defendant for negligence and intentional infliction of mental suffering.

The court denied leave to add the new defamation allegations against the existing defendant, finding them barred by the two-year limitation period and lacking sufficient particulars.

However, the court granted leave to add the claims against the psychiatrist, finding that although the negligence claim based on a third-party duty of care was novel, it was not plain and obvious that it would fail.

The court also allowed the intentional infliction of mental suffering claim to proceed.

The defendants brought a motion to dismiss the plaintiff's action for delay.

The plaintiff claimed an interest in a farm property based on an alleged 1990 oral agreement.

The action was commenced in 2007, but the plaintiff took no steps to advance the litigation after discoveries in 2009.

The court found the delay to be inordinate and inexcusable, rejecting the plaintiff's uncorroborated claims of illness.

The court also found actual prejudice to the defendants, as one defendant had died and the other had developed dementia, making a fair trial impossible.

The motion was granted and the action was dismissed.

The plaintiff brought a motion seeking declarations that a civil judgment for personal injuries arising from an assault survived the defendant’s bankruptcy under s. 178(1)(a.1) of the Bankruptcy and Insolvency Act and that the statutory stay did not prevent enforcement of the judgment.

The underlying jury verdict found that the defendant deliberately punched the plaintiff once in the head, causing catastrophic injury when the plaintiff fell and struck his head on a curb.

The court considered whether the damages constituted bodily harm “intentionally inflicted” within the meaning of s. 178(1)(a.1).

Relying on jurisprudence interpreting the provision as requiring intent to cause injury rather than merely intent to commit the act, the court held the evidence did not establish that the defendant intended to inflict bodily harm.

The motion to lift the stay and declare the debt non‑dischargeable in bankruptcy was dismissed.