Michael McWilliams

This decision addresses two related appeals.

In the main appeal (C70874), Physicians’ Dialysis Center Inc. (PDC), and Drs.

George Wu and Gordon Wong appealed a trial judgment that found them unjustly enriched at the expense of Drs.

Perkins and Boll, and liable for general and punitive damages due to abuse of trust and breach of fiduciary duty.

The appellants argued errors in the interpretation of a Memorandum of Understanding (MOU) concerning compensation for clinic space and services, and that the claims were statute-barred.

The Court of Appeal dismissed this appeal, upholding the trial judge's findings on unjust enrichment, contract interpretation (clarifying payments were for overhead, not extra billing), and the application of the limitations period.

In the second appeal (COA-22-CV-0392), Dr. Donald Kim appealed the denial of his share in interpleaded funds, and this appeal was granted.

Following an 11-day trial where the plaintiffs were successful, the court determined the quantum and scale of costs.

The plaintiffs had made multiple offers to settle that were more favourable than the trial judgment.

Applying Rule 49.10(1) and Rule 57.01(1), the court awarded the plaintiffs costs on a substantial indemnity basis fixed at $724,850.49, noting the defendants' unreasonable positions during the litigation.

Several nephrologists practiced together in a partnership and provided services at a hospital.

The hospital paid funds to a corporation controlled by three of the partners, excluding two other partners from their share.

The excluded partners discovered this arrangement and sued for unjust enrichment and breach of fiduciary duty.

The court found that the defendants were unjustly enriched and ordered them to pay compensatory damages based on the plaintiffs' proportionate contributions to overhead, as well as punitive damages for abusing their positions of trust.

The applicants, Dr. David Perkins and Dr. Philip Boll, sought court approval of a partial settlement agreement (Pierringer agreement) with Dr. Arturo Wadgymar and Dr. Donald Kim.

The non-settling parties, Physicians’ Dialysis Centre Inc., Dr. George Wu, and Dr. Gordon K. T. Wong, neither consented to nor opposed the motion.

The court, having served as case management judge and reviewed the material, found that the agreement did not cause unfairness or prejudice to the non-settling parties and was in the interests of justice.

The court approved the agreement, confirming it does not alter the adversarial position of the parties or impair the applicants' ability to pursue claims against the non-settling parties.

The plaintiffs, Gerald Witiluk and the trustees of the Gerald Witiluk Family Trust, brought a motion seeking an order that the defendants, Jack Witiluk and others, were in contempt of three previous court orders regarding document production in an ongoing oppression remedy case.

The court dismissed the motion, finding that while there were delays in production, the plaintiffs failed to prove beyond a reasonable doubt that the defendants' conduct was intentionally contemptuous.

The court exercised its discretion, considering the complex, long-standing nature of the family business litigation, the moving target of the share valuation date, and the defendants' good faith efforts to comply.

The court also criticized the plaintiffs' use of aggressive language in their motion, including a request for imprisonment, which was deemed unhelpful to the process.