Michael A. Polvere

The plaintiffs brought a motion for summary judgment seeking specific performance of an agreement of purchase and sale for farm properties, or alternatively, damages for breach of contract.

The defendants argued the agreement was unconscionable, they were coerced by real estate agents, and the property was not unique.

The court found no genuine issue for trial regarding the validity of the agreement, rejecting the defences of non est factum and unconscionability, and held that the defendants breached the contract.

However, the court declined to order specific performance, finding the property was not sufficiently unique and damages were an adequate remedy.

Partial summary judgment was granted on validity and breach, with the issue of damages deferred to trial.

The defendant brought a motion to set aside a default judgment of $2.75 million obtained against him.

The court applied the five-factor test from Mountainview Farms Ltd. v. McQueen.

The court found that the defendant had deliberately evaded service and ignored the proceedings until enforcement was imminent in Hong Kong.

The court declined to consider the merits of the defence due to the defendant's conscious decision not to participate.

The motion was dismissed, and costs of $40,000 were awarded to the plaintiff.

The plaintiffs, franchisees of the defendant, brought a motion for partial summary judgment seeking declarations that the defendant franchisor breached the Arthur Wishart Act by failing to provide a disclosure document upon renewal of their franchise agreement, and breached its duty of fair dealing.

The franchisor argued it was exempt from providing a disclosure document under s. 5(7)(f) of the Act because there was no material change.

The court dismissed the motion, finding that whether the terms of the renewal agreement constituted a material change, especially in the context of the franchisor's shift toward a corporate service model, presented a genuine issue requiring a trial.

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.

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.

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 appellant appealed a summary judgment order finding that its relationship with the respondent was that of franchisor and franchisee, entitling the respondent to rescind their agreements under the Arthur Wishart Act due to a lack of disclosure.

The Court of Appeal upheld the finding on liability but found the motion judge's reasons for quantifying damages insufficient.

The appeal was dismissed regarding liability, and the matter was remitted to the motion judge to determine the quantum of damages in excess of the conceded amount.

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 defendants brought a motion for leave to appeal to the Divisional Court from an order dismissing their motion to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiff.

The plaintiff, a second mortgagee, alleged a constructive trust and fraudulent conduct following a power of sale that resulted in a shortfall.

The court applied the strict test for leave to appeal under Rule 62.02(4) and found no conflicting decisions, no good reason to doubt the correctness of the motion judge's findings on triable issues or material non-disclosure, and no error in principle in the exercise of discretion to maintain the CPL.

The motion 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 appellants sought to amend their statement of claim to add a claim in nuisance against the respondent for failing to properly remediate contaminated land before selling it.

The motion judge denied the amendment, finding that a nuisance claim requires the interference to originate from outside the plaintiff's land.

The Court of Appeal upheld this decision, confirming that an essential characteristic of the tort of nuisance is that the alleged nuisance must emanate from somewhere other than the plaintiff's own land.

The appeal was dismissed.

The plaintiff moved to amend its statement of claim in a construction contract action to add a related corporate entity as a defendant after a limitations defence was raised.

The court held that on a pleadings motion the evidentiary threshold is low, and the record disclosed a live issue of fact and credibility concerning when the plaintiff knew or ought to have known the identity of the proper contracting party.

Given the admission in the existing statement of defence, the payment history, and the inconsistent use of corporate identities, the amendment was permitted with leave to the added defendant to plead the limitation period.

The court also held the amendment was supportable as correction of a misnomer because the litigation finger was clearly pointed at the intended defendant and no prejudice was shown.

The appellant obtained a civil judgment in excess of $1 million against the respondent for an unprovoked assault that caused permanent brain damage.

The respondent subsequently filed for bankruptcy.

The appellant moved for a declaration that the judgment survives bankruptcy under s. 178(1)(a.1) of the Bankruptcy and Insolvency Act as an award for bodily harm intentionally inflicted.

The motion judge dismissed the motion, finding no intent to injure.

The Court of Appeal allowed the appeal, holding that the respondent's act of punching the appellant in the head with a closed fist demonstrated the requisite intent to inflict bodily harm, and the judgment therefore survives the bankruptcy discharge.

The plaintiff lender brought a motion for summary judgment to enforce a personal guarantee executed by the responding party in connection with a corporate promissory note.

The guarantee was provided as consideration for the lender’s agreement to subordinate its security interest to permit refinancing of a related corporation.

The responding party argued he signed the agreement under time pressure without independent legal advice and raised defences of economic duress and unconscionability.

The court held there was no genuine issue requiring a trial, finding that valuable consideration supported the guarantee and that the allegations of duress were unsupported by evidence.

Summary judgment was granted enforcing the guarantee.

The plaintiff sued family members for defamation arising from oral and written accusations that he had sexually abused two nieces as children, and the defendants counterclaimed in sexual battery and intentional infliction of mental suffering.

After a lengthy trial with expert evidence on trauma, memory, delayed reporting, recantation, and false memory, the court held that the abuse allegations were not proven on a balance of probabilities and dismissed the counterclaim.

The court found the impugned accusations plainly defamatory, rejected justification, and held that the broad dissemination of the allegations to extended family and others did not fall within qualified privilege.

The court further held that the statement warning that others might also be sexually abused was unsupported and malicious.

Judgment was granted to the plaintiff with $125,000 in general damages and costs.