Monty Dhaliwal

In this contract interpretation dispute, the plaintiff developer (Losani) sought payment from the defendant developer (Tobyn Park Homes) for the defendant's share of infrastructure costs under a Construction and Cost Sharing Agreement.

The central issue was whether interim payments were due upon issuance of Progress Certificates by the consulting engineer, or whether payment could be deferred until the City of Hamilton formally accepted the works as complete.

The court found that the CSA clearly required interim payments within 20 days of each Progress Certificate, and that the External Works Agreement (annexed to the CSA) addressed only the standard for final completion, not the timing of interim payments.

All of Tobyn's payments were late, and interest at 15% per annum, compounded monthly, accrued on all amounts owing.

This decision concerns motions brought by Pride Group Holdings Inc. and related applicants under the Companies' Creditors Arrangement Act (CCAA) for interim relief in their restructuring proceedings.

The court addresses requests for approval of interim distributions, payment of direct costs, application of deferred payments for working capital, and approval of certain activities of the Monitor.

The court grants the requested relief, finding it necessary to maintain liquidity and continue the wind-down process, and holds that the proposed mechanisms are equitable and consistent with the CCAA’s remedial objectives.

The court considered a motion by Losani Homes (1998) Limited for the partial discharge of a vendor-take-back mortgage over a single subdivided lot (Lot 002) on a development property, pending the outcome of a broader application regarding the parties’ rights and obligations over a parcel known as the Heinbuch land.

The court declined to grant the interim relief, finding no contractual, statutory, or equitable entitlement to a partial discharge, and emphasized the need for the main application to proceed expeditiously.

The court fixed the costs of the defendants' unsuccessful motion for further particulars.

The plaintiffs, as the successful party, sought full indemnity costs, while the defendants argued for no costs or limited partial indemnity.

The court rejected the defendants' argument that the motion's dismissal was due to "evolving Rules reforms" justifying no costs.

It also rejected the plaintiffs' request for substantial indemnity costs, finding no reprehensible conduct by the defendants.

The court awarded partial indemnity costs, considering the moderate complexity and the defendants' unnecessary pursuit of the motion, fixing the amount at $4,000.00 inclusive of HST and disbursements.

The defendants brought a motion for particulars seeking additional details regarding the plaintiffs' claims of breach of contract, unjust enrichment, fraudulent payments, oppression, and piercing the corporate veil.

The court dismissed the motion, finding that the plaintiffs' Amended Statement of Claim provided sufficient material facts to allow the defendants to plead.

The judge emphasized that many requested particulars were either already provided, within the defendants' own knowledge (e.g., corporate records), or could be obtained through the discovery process.

The court also expressed concern that the motion for particulars was being used as a delay tactic, contrary to the goals of civil procedure reform.

The appellant, Paul Blanchard, appealed a trial judgment that found his personal guarantee to JPM Trade Capital Inc. was a continuing guarantee, covering multiple subsequent loans to TEC International Corporation.

The Court of Appeal applied the principles of contractual interpretation from *Sattva* and *Earthco*, affirming that such interpretation is a question of mixed fact and law, subject to palpable and overriding error review.

The court found no palpable and overriding error in the trial judge's determination that the guarantee was continuing, based on the contract's language and surrounding circumstances, and dismissed the appeal.

In the context of CCAA proceedings, the applicants sought a Funding Order to compel Securitization Parties and other secured lenders to fund a $40 million wind-down of the remaining entities.

The court dismissed the motion for the Funding Order, finding that section 11.01(b) of the CCAA expressly prohibits orders requiring the further advance of money or credit.

Consequently, the court also declined to approve a Key Employee Retention Plan, as it was dependent on the unavailable funding.

The court did, however, grant a temporary sealing order for the KERP details and extended the stay of proceedings to November 29, 2024.

Techlantic Ltd. brought a motion for summary judgment against Jiyue "Jay" Zhao to enforce a personal guarantee of $240,000 for obligations of Modellista Auto Accessories Inc. The motion also sought to amend the statement of claim to substitute new plaintiffs.

The court granted leave to amend the statement of claim but dismissed the motion for summary judgment, finding genuine issues requiring a trial regarding the unconscionability of the guarantee.

Specifically, there were credibility issues and inconsistencies in evidence regarding the parties' business arrangement, Mr. Zhao's bargaining position, and the improvidence of the guarantee, necessitating a full trial.

The plaintiffs sought an interlocutory injunction to restrain the defendant, a former business owner, from competing with their vehicle leasing business and to compel the transfer of phone numbers and production of records, following a share purchase agreement.

The plaintiffs had ceased installment payments to the defendant, alleging misrepresentation and breach of restrictive covenants.

The court dismissed the main injunction for non-competition, finding the plaintiffs failed to establish a strong prima facie case, primarily because the restrictive covenants were not in force while the purchaser was in default of payment obligations.

The court also dismissed the requests for phone number transfer and production of records as premature or not contractually required.

A minor injunction restraining the defendant from holding himself out as a representative of the business was granted as it was unopposed.

The defendant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiffs' defamation claim.

The plaintiffs alleged defamation by a "cease and desist" letter sent by the defendant to their employer and funding body, containing false allegations about their professional conduct and their organization.

The court found the defendant's expression related to a matter of public interest, satisfying the first stage of the anti-SLAPP test.

However, at the second stage, the court found grounds to believe the plaintiffs' claim had substantial merit and that the defendant had no valid defence (justification or qualified privilege), noting the fragility of the defendant's evidence and potential malice.

The court concluded that the public interest in allowing the plaintiffs' legitimate claim to proceed, particularly to resolve a long-standing conflict impacting publicly funded services, outweighed the public interest in protecting the defendant's expression.

The motion was dismissed without costs.

The applicant, a director of a corporation, sought leave to bring a derivative action on behalf of the corporation against two other directors.

The applicant alleged that the other directors misappropriated returned deposit funds from a failed real estate transaction by diverting them to another company they controlled and distributing them to themselves and select partners.

The court found the applicant was acting in good faith and that the proposed action was in the interests of the corporation.

Leave was granted to the applicant to commence the derivative action, but the request for advance costs was denied.

The court monitor brought a motion for advice and directions due to the defendants' failure to comply with a prior court order requiring them to provide financial disclosure and a $500,000 retainer.

The defendants opposed the motion but failed to file any evidentiary record.

The court granted the Monitor's motion, ordering the defendants to comply with the prior order, provide the required financial records, and authorizing the release of the retainer funds from a specific bank account.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff for unpaid shipping and handling fees.

The corporate defendant failed to provide a valid explanation for its default and did not raise an arguable defence, so the motion was dismissed as against it.

However, the personal defendant raised an arguable defence of unconscionability regarding a personal guarantee he signed without legal advice to secure the release of vehicles held by the plaintiff.

The court set aside the default judgment against the personal defendant, allowing him to defend the action solely on the basis of unconscionability.

The respondents brought a motion seeking a contempt order against the applicant for breaching a disclosure order, an order to set aside restraining orders against Wilfred Abraham, and an order to appoint an inspector for Scorpio Specialty Services Inc. The court dismissed the contempt claim, finding non-compliance but not intentional breach.

It terminated the restraining orders against Wilfred Abraham, concluding they were no longer necessary due to changed circumstances and the applicant's inconsistent positions regarding Abraham's status.

The court granted the request to appoint BDO as an inspector under s. 161(2) of the Ontario Business Corporations Act, finding a prima facie case that the business affairs may have unfairly disregarded security holder interests, with the respondents initially bearing the investigation costs subject to re-apportionment at trial.

The plaintiffs, minority shareholders, commenced an action against the defendants for declarations and orders related to oppressive conduct, breach of fiduciary duty, and misappropriation of funds from the sale of a pharmacy.

The defendants were noted in default, and the matter proceeded as an undefended trial.

The court found the defendants' conduct to be oppressive and a marked departure from ordinary standards of decent behaviour, supporting an award of punitive damages.

The plaintiffs were granted declarations of shareholding, trust, and fiduciary duty, and awarded their share of the sale proceeds, punitive damages, and costs.

The applicants and respondents formed an incorporated partnership to acquire and develop a hotel and adjacent lands.

The applicants alleged that the respondent unilaterally altered the corporation's capital structure to give himself absolute voting control, engaged in self-dealing, and funneled corporate funds to personal accounts.

The court found the respondent's conduct constituted oppression under section 248 of the Business Corporations Act.

Given the complete breakdown of trust and lack of alternative remedies, the court ordered the winding up of the corporation and appointed a liquidator.

The defendants sought leave to amend their statement of defence to introduce new allegations regarding a complicated ownership scheme and a prior conflict of interest involving their former counsel, who was also the plaintiff's agent's deceased brother.

The plaintiff opposed, arguing irreparable prejudice due to the death of the former counsel.

The court granted leave to amend, finding that the amendments were prima facie meritorious and any prejudice could be compensated by costs or adjournment, aligning with the principle of proportionality to ensure all relevant information is before the court.