Myron W. Shulgan

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 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The defendant insurer argued it had validly rescinded the insurance contract ab initio due to material misrepresentations in the application, two months prior to the accident.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The court found the insurer validly rescinded the contract before the accident occurred, meaning there was no contract providing indemnity at the time of the loss.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.

Berkley Insurance Company (Applicant) sought a mandatory order compelling Rob Piroli Construction Inc. (Respondent) to honour an undertaking to direct funds into a trust as security for construction lien bonds.

Piroli Construction had breached this undertaking, using the funds to pay subcontractors instead.

The court found that damages would be an inadequate remedy because honouring the undertaking would make Berkley Insurance a secured creditor, unlike an unsecured judgment for damages.

The application for a mandatory order was granted, along with costs.

The plaintiff, Champion Products Corp., sought partial summary judgment for replacement costs under a multi-peril insurance policy following a significant fire.

The parties had entered into two settlement agreements, the first establishing a 24-month deadline for replacement and the second modifying terms for a specific property in Scarborough.

Champion failed to complete the Scarborough transaction and subsequently sought to substitute a Pickering property.

The defendant insurer, Intact, argued that Champion had forfeited its right to recoverable depreciation due to missed deadlines.

The court found that Intact had waived its right to claim forfeiture through its conduct, which included assessing the substitute Pickering property over an extended period.

Champion was awarded $3,000,000 for replacement costs, representing the amount agreed upon in the second settlement, and its request for a further appraisal to determine a higher amount was dismissed.

The defendant brought a motion to strike out or stay the plaintiffs' claim due to the plaintiffs' failure to pay outstanding costs orders from an unsuccessful summary judgment application.

The plaintiffs admitted default but claimed impecuniosity.

The court dismissed the motion without costs, finding that the plaintiffs were genuinely without funds, the previous motion was not frivolous, and the defendants failed to show prejudice.

This decision addresses the costs of an estate dispute where the applicants, two sisters, unsuccessfully challenged their father's final will, alleging undue influence by their brother.

The court reiterated the "loser pays" principle in estate litigation, finding no public policy grounds to deviate or have the estate bear the costs.

The court was critical of the applicants' persistent and personal attacks, noting their conduct prolonged an unnecessary and bitter trial.

Costs were awarded to the respondent on a partial indemnity basis.

The applicants challenged the Last Will and Testament of the deceased, alleging lack of testamentary capacity and undue influence by the respondent.

The court found that the applicants failed to discharge their onus of proving undue influence and that the deceased possessed the requisite capacity to make his will.

The court upheld the August 23, 2013 Will as valid, reflecting the testator's intentions to keep the farm lands in the family and ensure fairness to all children.

Following the dismissal of the applicant's application for an injunction on jurisdictional grounds, the successful respondent sought costs of $18,172.31 on a substantial indemnity basis.

The applicant conceded that costs should be awarded on a partial indemnity basis.

The court agreed that there was no basis for a punitive costs award and fixed the respondent's costs at $10,000 all-inclusive on a partial indemnity basis, after deducting wasted costs for an adjournment caused by the non-availability of judicial resources.

The applicant insurance company sought a mandatory injunction by way of application to compel the respondent construction company to pay funds into trust as security for construction lien bonds.

The respondent argued that an injunction cannot be the sole primary relief sought in an application under Rule 14.05(3)(g) of the Rules of Civil Procedure.

The court agreed, holding that injunctive relief must be ancillary to other relief in a proceeding properly commenced by notice of application.

The application was dismissed.

A law firm sued its former client for unpaid legal fees of $427,891.57 following termination of a contingency fee retainer relating to a civil action for wrongful prosecution.

The defendant moved for summary judgment dismissing the claim, arguing the firm repudiated the retainer agreement by refusing to pursue a necessary appeal unless the client funded outside appellate counsel.

The court held that under the contingency fee agreement the firm was required to conduct “any and all proceedings,” which included the appeal, and could not characterize appellate counsel’s fees as disbursements payable by the client.

The refusal constituted a repudiatory breach of the retainer agreement, which the client accepted.

As a result, the client was discharged from any obligation to pay fees or disbursements.

The plaintiffs, a precast concrete manufacturer and its sales agent, sued an engineering company and its principal for breach of contract and negligence arising from delayed and error-filled engineering drawings for a parking garage project.

The court found the defendants liable in both contract and tort for pure economic loss.

The court admitted subcontractor invoices as business records under the principled approach to hearsay to prove damages.

The defendants' third-party claim against their insurers was partially allowed, with the court allocating damages between covered errors and excluded delays.

The applicant, an adult entertainment parlour operator, challenged the City of Brantford's by-law requiring operators and entertainers to obtain licences and pay fees.

The applicant argued the by-law was ultra vires, discriminatory on the basis of sex, and imposed excessive fees.

The court found the licensing provisions were within the municipality's authority under the Municipal Act, 2001, and the fees were not excessive.

However, the court held that the by-law's definition of 'partial nudity', which singled out the female breast, discriminated against female entertainers on the basis of sex contrary to the Human Rights Code.

The court declared that specific provision invalid but suspended the declaration for six months to allow the municipality to amend the by-law.

A contractor sought to enforce lien and related claims against a land vendor after a hotel purchaser defaulted on payment for servicing work on the parcel to be sold.

The court held the vendor was not an owner within sections 1.1 or 18 of the Construction Lien Act for the impugned work, finding no request, privity, consent, or joint/common ownership status that would ground liability.

Claims in unjust enrichment and quantum meruit were rejected because the deprivation flowed from the purchaser’s contractual breach and no corresponding enrichment by the vendor was established.

The court found the contractor’s proven damages remained those already reflected in judgments against the purchaser.

The action was dismissed with costs, but the contractor was found entitled to a lien against the purchaser’s $25,000 deposit held by the vendor.

On a Rule 20 summary judgment motion, moving defendants sought dismissal of claims as statute-barred under ss. 4 and 5 of the Limitations Act, 2002.

The court heard affidavit and oral evidence on discoverability and due diligence, and found the responding parties knew by 2005-2006 of the impugned transfer and related litigation but chose not to investigate potential claims against additional actors.

Applying the objective branch of discoverability and diligence principles, the court held that a reasonable person in their circumstances ought to have known the material facts in 2006.

The court concluded there was no genuine issue requiring trial on the limitations defence and dismissed the action against the moving defendants.