Myron W. Shulgan

The parties, former law partners, brought cross-motions regarding the dissolution of their partnership and the winding up of their jointly owned corporation.

The defendant sought partial summary judgment on consent for a declaration of dissolution and an accounting, which the court granted, directing a reference.

The plaintiffs sought leave to amend their statement of claim to request a winding up of the corporation and a forced sale of the defendant's shares rather than the sale of the corporation's building.

The court allowed the amendments, finding them not untenable in law, and ordered the winding up of the corporation on consent.

This is an appeal concerning an insurance claim for recoverable depreciation following a fire that destroyed a commercial building.

The insured, Champion, and insurer, Intact, had a settlement agreement with a 24-month replacement deadline and an automatic forfeiture clause for recoverable depreciation if not met.

A subsequent agreement conditionally waived this deadline, contingent on Champion closing a specific property purchase.

Champion failed to close that purchase and sought to substitute another property.

The motion judge found Intact had waived Champion's failure to close and granted summary judgment.

The Court of Appeal reversed, holding that forfeiture was automatic and Intact was not required to give notice.

The Court found Intact did not waive Champion's default and dismissed Champion's cross-appeal for relief from forfeiture or damages, as Champion had not completed replacement.

The moving defendants sought leave to vacate a Certificate of Pending Litigation (CPL) registered by the plaintiffs to allow a corporation to grant a second mortgage to the Royal Bank of Canada.

The plaintiffs and other defendants opposed the motion.

The court dismissed the motion, finding that the grounds for discharging the CPL did not satisfy the criteria under section 103(6) of the Courts of Justice Act, nor did the equities favour the moving parties, as ownership interests remained in dispute and the proposed mortgage would dilute the plaintiffs' interests.

Two consolidated appeals concerning insurance coverage and the duty to defend.

The application judge found that The Guarantee Company of North America and The Co-operators General Insurance Company had a duty to defend Ryan Reeb in an underlying negligence action, and ordered that three insurers (including Royal & Sun Alliance) share defence costs equally on a going-forward basis.

The appellants challenged the orders on grounds of limitation periods and contractual restrictions.

The Court of Appeal dismissed the appeals, upholding the application judge's reasoning that the duty to defend is an ongoing obligation applied on a rolling basis, that the limitation period does not bar claims for prospective costs, and that the equal cost-sharing arrangement was properly determined.

The plaintiffs brought a successful motion for leave to file a late expert report and affidavit.

The court determined the costs of that motion.

Finding that the relief granted to the plaintiffs was an indulgence to ensure trial fairness, and noting the unreasonable delay by plaintiffs' counsel in delivering the report, the court ordered the plaintiffs to pay the defendants' costs of the motion.

The defendants were awarded a total of $18,000 in costs.

Corporations defrauded by their bookkeeper through forged cheques and unauthorized payroll payments sought partial summary judgment against their bank on strict liability and negligence claims.

The motion judge granted partial summary judgment on the strict liability claim relating to cheque fraud, finding no genuine issue to be tried on the bank's business banking agreement defence or limitations defence.

The bank appealed, arguing the motion judge erred in granting partial summary judgment, misapplied the discoverability test for limitations, and erred in finding no evidence supporting the business banking agreement defence.

The Court of Appeal allowed the appeal, finding that partial summary judgment was inappropriate due to risk of overlap in evidence between the cheque fraud and payroll fraud claims, and that the motion judge misapplied the modified objective test for discoverability by conducting a purely subjective inquiry.

A pedestrian was catastrophically injured when struck by a vehicle whose owners had applied for automobile insurance.

The insurer issued a one-year policy but subsequently purported to rescind it based on material misrepresentation regarding one owner's driving record, sending a letter stating the coverage was "void from the inception date" approximately two months before the accident.

The injured plaintiff obtained judgment against the at-fault driver and owner but was unable to collect.

The plaintiff then sued the insurer under section 258(1) of the Insurance Act, which permits innocent third parties to recover directly from the at-fault driver's insurer.

The motion judge dismissed the action, finding the insurer had validly rescinded the contract at common law, making it void ab initio.

The Court of Appeal allowed the appeal, holding that an automobile insurer cannot rescind a contract at common law but must comply with the statutory scheme governing termination of automobile insurance contracts.

Ryan Reeb sought a declaration that his homeowner's insurers (The Guarantee Company of North America and The Co-operators General Insurance Company) had a duty to defend him in a negligence action arising from a BB gun incident.

The court found the underlying claim was framed in negligence, not an intentional tort, and that extrinsic evidence should not be considered at this preliminary stage of determining the duty to defend.

The duty to defend was granted.

In a companion application, Royal & Sun Alliance Insurance Company of Canada (RSA), Reeb's other insurer, sought equitable contribution for future defence costs from Guarantee and Co-operators.

The court granted this, rejecting a limitation period argument and ordering the three insurers to share future defence costs equally.

The plaintiff City of Windsor brought a motion for summary judgment against the defendant engineering company, RC Spencer Associates Inc., seeking 50% of damages paid to homeowners for sewage backups.

The City alleged Spencer provided incomprehensible drawings for a sewer separation project, leading to the removal of an essential overflow mechanism.

The court ordered a mini-trial to hear oral evidence regarding the clarity of the drawings.

The court found both parties negligent, with Spencer's drawings lacking sufficient detail for the contractor and inspector to understand the need to maintain the overflow, and the City being negligent as the final reviewer and inspector.

The court apportioned liability equally, ordering Spencer to pay 50% of the damages.

The appellant, a company that purchased land in Kingsville, Ontario, gave a promissory note for $171,000 to Ronald Colasanti in exchange for an assignment of a water allocation.

When the appellant refused to pay, claiming the promissory note was void for failure of consideration, the trustees of Colasanti's estate brought an action in debt.

The trial judge found valid consideration existed and awarded judgment.

On appeal, the appellant renewed its argument that the water allocation never belonged to Colasanti and therefore could not constitute valid consideration.

The Court of Appeal dismissed the appeal, holding that the appellant obtained an immediate resolution of its water supply problem and a building permit, which constituted valid consideration regardless of the legal status of the water allocation itself.

The plaintiffs brought a motion for partial summary judgment against the defendants, specifically Toronto Dominion Bank (TD Bank), seeking recovery for amounts paid on forged cheques by a former bookkeeper.

The motion proceeded to a mini-trial on the issue of discoverability under the Limitations Act, 2002.

The court found that the plaintiffs' claim was not statute-barred, as the fraud was skillfully concealed by the bookkeeper, and the plaintiff, a machinist without financial expertise, acted diligently once alerted to the possibility of fraud.

The court applied the "reasonable person" standard, considering the plaintiff's abilities and circumstances, and concluded that the lack of sophisticated internal controls did not render the plaintiff unreasonable.

Partial summary judgment was granted against TD Bank for the cheque fraud amounts.

The defendant brought a motion to determine the admissibility of documents created during fitness to practice proceedings by the College of Nurses of Ontario concerning the plaintiff.

The defendant argued that s. 36(3) of the Regulated Health Professions Act renders these documents inadmissible in civil actions.

The plaintiff contended this was re-litigation and that capacity investigations should be treated differently from discipline processes.

The court concluded that s. 36(3) applies broadly to fitness to practice proceedings, affirming the policy objective of separating college and civil proceedings to encourage expert participation without fear of civil action.

The motion was granted, and all documents created for the College's proceedings related to the plaintiff were declared inadmissible.

The appellants challenged an application judge's decision denying them interest on legacies under their father's will.

The testator's final will left monetary legacies of $530,000 each to his two daughters and the residuary estate to his son.

The daughters challenged the will on grounds of undue influence but were unsuccessful.

They then claimed entitlement to interest on their legacies under the common law "rule of convenience," which provides for interest on legacies delayed beyond one year from the testator's death.

The application judge exercised discretion to deny interest, citing the daughters' status as estate trustees and their role in causing delay through the will challenge.

The Court of Appeal allowed the appeal, holding that the "rule of convenience" applied and that the application judge erred in principle by linking entitlement to interest to the reasonableness of distribution within the executor's year, by giving undue weight to the will challenge, and by characterizing interest as a reward or penalty.

The plaintiffs, as trustees of their late father's estate, sued the defendant corporation on a promissory note for $171,000 relating to the transfer of water allocation rights for a greenhouse development.

The defendant argued the note lacked consideration because the water rights should have passed with the land purchase.

The court rejected the defendant's arguments, finding the defendant signed the note in bad faith with no intention to pay, and that the transfer of the water allocation constituted valuable consideration.

Judgment was granted to the plaintiffs for $171,000 plus pre-judgment interest.

The appellant appealed a motion judge's decision granting an order for security.

The appellant argued that damages would be an adequate remedy.

The Court of Appeal upheld the motion judge's decision, finding that the respondent had bargained for security, which differs fundamentally from damages.

The appeal was dismissed with costs awarded to the respondent.

The plaintiff municipality brought a motion for summary judgment against the defendant engineering firm for 50% of the damages paid to homeowners due to a sewage backup.

The municipality alleged the defendant's design drawings for separating storm and sewage drains were unclear, leading to the removal of an overflow mechanism.

The court found a genuine issue requiring a trial because the key witness who implemented the design in the field did not provide an affidavit.

The court ordered a mini-trial under Rule 20.04(2.2) to hear oral evidence from this witness regarding the clarity of the drawings.

The appellants appealed a Director's Order requiring them to carry out work items relating to discharges from their greenhouse operation.

Prior to the hearing, the appellants complied with the order and the parties agreed to withdraw the appeals.

The Environmental Review Tribunal applied Rule 199 of its Rules of Practice and dismissed the appeals.

The plaintiffs obtained a $2 million judgment against an at-fault driver and vehicle owner for a motor vehicle accident.

The plaintiffs then brought an action against the defendant insurer under s. 258(1) of the Insurance Act, arguing the vehicle was insured at the time of the accident.

The defendant insurer argued it had validly rescinded the insurance contract ab initio due to material misrepresentations in the application, two months prior to the accident.

The court held that the Insurance Act does not displace an insurer's common law right to rescind a contract for material misrepresentation.

The court found the insurer validly rescinded the contract before the accident occurred, meaning there was no contract providing indemnity at the time of the loss.

The plaintiffs' action was dismissed.

The plaintiffs brought a motion for partial summary judgment against the defendant bank for amounts paid on cheques forged by the plaintiffs' former bookkeeper.

The bank raised two defences: an alleged account verification agreement and the expiry of the limitation period.

The court found no genuine issue requiring a trial regarding the agreement defence, as the bank could not produce evidence that the relevant plaintiffs had signed such an agreement.

However, the court found a genuine issue requiring a trial regarding the limitation period defence, specifically on the issue of discoverability, and ordered a mini-trial to determine when a reasonable person ought to have discovered the forgeries.

The appellant appealed a trial judgment that found she was a partner in a law firm rather than an employee.

The appellant argued that the trial judge failed to properly apply the control and dependency test established in McCormick v. Fasken Martineau DuMoulin LLP.

The Court of Appeal upheld the trial judgment, holding that McCormick does not establish control and dependency as an all-purpose test for determining partnership status.

Instead, courts must examine all surrounding circumstances, the substance of the relationship, the behaviour of the parties, and their intentions.

The trial judge's findings of fact, which supported a partnership relationship, were available on the evidence and no palpable and overriding error was demonstrated.