Myron W. Shulgan

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.

The appellant brought an application under Rule 14 for a mandatory order enforcing an undertaking to pay money related to construction bonds.

The application judge dismissed the application on procedural grounds, finding it was not properly brought under Rule 14.

The Court of Appeal allowed the appeal, holding that the application was properly founded under subrules (d), (g), and (h) as there were no material facts in dispute and the interpretation of the contract was conceded.

The matter was remitted to the application judge for a decision on the merits.

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.

The appellant law firm appealed the dismissal of its action for unpaid legal fees under a contingency fee retainer agreement.

The client had accepted the law firm's repudiation of the agreement and directed the firm to take no further steps.

The Court of Appeal held that by accepting the repudiation and directing the firm to stop work, the client cancelled the services within the meaning of the agreement's termination provision, thereby becoming liable to pay the value of services performed to date.

The appeal was allowed and judgment granted for the law firm.

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.

The defendants in a securities class action brought a motion to transfer the proceeding from Windsor to Toronto.

The plaintiffs opposed the transfer.

The court considered the factors under Rule 13.1.02 of the Rules of Civil Procedure.

While the plaintiffs' choice of venue was found to be reasonable, the court concluded that the defendants established that Toronto was a significantly better venue, given that a substantial part of the damages were sustained there, the subject matter was located there, and it was more convenient for the parties, witnesses, and counsel.

The motion for a change of venue was granted.

The defendants brought a motion to transfer a securities class action from Windsor to Toronto under Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs alleged misrepresentations in a prospectus related to the financing of a workforce accommodation complex.

The court conducted a holistic balancing of the factors under Rule 13.1.02(2).

Although the plaintiffs' choice of venue was deemed reasonable, the court found that Toronto was a significantly better venue because a substantial part of the damages were sustained there, the subject matter was more closely connected to Toronto, and it was more convenient for the parties, counsel, and witnesses.

The motion for a change of venue was granted.

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 sought compensation for historical SRED tax consulting services allegedly provided to a family-owned manufacturing business, advancing claims in contract, quantum meruit, and unjust enrichment.

The court found no contract was proven with either plaintiff, rejected the corporate plaintiff’s attempt to recover for services personally supplied by the individual plaintiff, and held that although the defendant benefited from the work, its retention of that benefit was not unjust given the parties’ reasonable expectations in a non-arm’s length family-business context.

The court further held that the claims were, in any event, largely statute-barred under the Limitations Act, 2002, and rejected the plaintiffs’ promissory estoppel argument.

Both actions were dismissed, with costs presumptively payable to the defendant.

The plaintiff developer and the defendant municipality entered into a supplementary agreement regarding the enhancement of a sewage system.

The trial judge found that the municipality breached the agreement by allocating sewage capacity to a competing developer before the plaintiff's subdivision was completed, and awarded damages for lost commercial tenancies.

On appeal, the Court of Appeal held that the trial judge erred in his interpretation of the agreement.

The court found that the clause granting the plaintiff a monopoly over sewage capacity was ultra vires as it conflicted with the municipality's statutory obligation under s. 86(1) of the Municipal Act, 2001 to supply sewage services where sufficient capacity exists.

The court severed the offending clause and concluded that the municipality did not breach the revised agreement.

Furthermore, the court held that the damages claimed for lost commercial tenancies were too remote.

The appeal was allowed and the action dismissed.

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.

A long‑serving employee brought a motion for summary judgment in a wrongful dismissal action seeking 24 months’ notice or, alternatively, statutory severance under the Employment Standards Act, 2000.

The court held that the employee’s entitlement to statutory severance pay could be determined summarily because the undisputed evidence established over 40 years of continuous employment and a payroll exceeding the statutory threshold.

Partial summary judgment was therefore granted for the maximum 26 weeks’ severance pay.

However, the broader claim for wrongful dismissal damages could not be determined because there was no evidence regarding post‑termination income or mitigation.

The remainder of the claim was directed to proceed to trial.

The respondent, an assistant manager at Wal-Mart, was constructively dismissed after enduring months of abusive and demeaning treatment from her supervisor.

When she complained to Wal-Mart management, they deemed her complaints unsubstantiated and threatened her with reprisal.

At trial, a jury awarded substantial compensatory, aggravated, and punitive damages against both the supervisor and Wal-Mart.

On appeal, the Court of Appeal upheld the findings of liability and the compensatory and aggravated damages awards, finding that the supervisor intentionally inflicted mental suffering and Wal-Mart breached its duty of good faith and fair dealing.

However, the Court significantly reduced the punitive damages awards against both defendants, concluding that the original amounts were not rationally required to achieve the goals of punishment, denunciation, and deterrence in light of the high compensatory awards.

The appellant, operator of an adult entertainment parlour, appealed a decision upholding the validity of a municipal by-law requiring licenses for adult live entertainment parlours and their entertainers.

The appellant argued the by-law exceeded the municipality's statutory authority under the Municipal Act, 2001.

The Court of Appeal dismissed the appeal, finding the licensing provisions were a valid exercise of the municipality's general licensing powers regarding health, safety, and well-being, as well as its specific statutory business licensing authority.

A developer sued a municipality alleging breach of a supplementary subdivision agreement governing allocation of sewage capacity for a commercial and residential development.

The agreement provided that additional sewer capacity in the municipal system was reserved for the developer’s subdivision and that the municipality would not allocate capacity to lands outside the subdivision until the development was fully built out.

The municipality nevertheless allocated capacity to an adjacent development and expropriated a one‑foot reserve to allow connection.

The court interpreted the contractual language in light of the factual matrix and held the agreement granted the developer priority to available capacity.

The municipality breached the agreement by allocating capacity to the neighbouring development before completion of the subdivision.

The plaintiff proved loss‑of‑chance damages for lost leasing opportunities and was awarded compensatory damages, but punitive damages were denied.

Following an appeal, the Court of Appeal for Ontario issued a costs endorsement.

The court rejected the respondents' request for substantial indemnity costs and the appellants' request for no costs.

Instead, the court awarded costs on a partial indemnity basis, ordering the appellants to pay a total of $64,000 to the various respondents.