Myron W. Shulgan

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.

Following dismissal of an application alleging that a municipality and its mayor and councillors conspired in bad faith to block a bridge expansion project through heritage and demolition control by-laws, the court determined the issue of costs.

The court found the allegations of conspiracy, illegality, and bad faith against the municipal defendants to be entirely without merit and emphasized that unsubstantiated allegations of dishonesty justify elevated costs.

Applying the principles in s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court awarded substantial full indemnity costs to the successful municipal respondents and individual councillors, subject to proportionality considerations reflecting differing levels of participation.

The court held that both the applicants and the Canadian Transit Company—though formally a respondent but aligned with the applicants—were jointly and severally responsible for the costs award.

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.

The appellant employee was terminated for cause after misappropriating company resources to renovate his home.

The employer sued for breach of fiduciary duty, and the employee counterclaimed for unpaid bonuses.

An arbitrator awarded damages to the employer for the misappropriation but also awarded the employee his unpaid bonuses, finding they were an integral part of his employment contract.

The Superior Court overturned the bonus award, holding that a fiduciary is not entitled to compensation during a period of wrongdoing.

The Court of Appeal allowed the employee's appeal and restored the arbitrator's award, finding no absolute rule disentitling an errant fiduciary to bonus compensation, and holding that the arbitrator's decision reasonably achieved the goals of restitution and deterrence.

The appellants appealed a trial judgment awarding the respondent $2.25 million in quantum meruit damages for services provided in developing a manufacturers' outlet mall.

The respondent had provided extensive development and leasing services under the mistaken belief that the parties were in a joint venture.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly applied a 'value received' approach rather than a 'value added' approach, properly relied on the respondent's expert valuation evidence, and reasonably assessed the fair market value of the unique services provided.

The court also upheld the finding that the appellant construction management company was jointly liable as a co-venturer.

The appellant appealed a motion judge's decision denying it interest on a mortgage for allegedly contravening s. 6 of the Interest Act.

The Court of Appeal allowed the appeal, finding that s. 6 did not apply because the mortgage did not involve a sinking fund plan, blended payments, or an allowance of interest on stipulated repayments.

The court also rejected the respondent's argument that the appellant failed to prove its prime rate, finding the affidavit evidence sufficient.

Judgment was granted in favour of the appellant for $67,140.83.

The appellant condominium developer appealed a trial judgment finding it liable for failing to disclose sufficient information regarding an HVAC equipment lease in a disclosure statement provided to prospective purchasers.

The trial judge held that the failure to include the lease term, total cost, interest rate, and purchase option price violated s. 52(5) of the Condominium Act.

The Court of Appeal allowed the appeal, finding that the disclosure statement accurately disclosed the existence and first-year cost of the lease, which was sufficient to meet the statutory requirements.

The failure to provide further details was not a material omission, and the condominium corporations did not suffer a loss in reliance on the statement.

The appellant bank issued an irrevocable and transferable letter of credit.

The letter of credit was transferred to the respondent, who subsequently presented documents for payment.

The appellant refused to pay, citing discrepancies in the documents and a lack of notice regarding the transfer.

The motions judge granted summary judgment in favour of the respondent on liability and ordered the appellant to pay costs, including a Sanderson order for the co-defendant's costs.

The Court of Appeal dismissed the appeal, finding that notice of the transfer was not required under the terms of the credit or the UCP 500, and that the documentary discrepancies were minor and immaterial.

The Court also upheld the costs awards, including the Sanderson order.

Erie Sand and Gravel Limited entered into an oral agreement with Seres' Farms Limited to purchase land containing aggregate essential to Erie's business.

The land was subject to a right of first refusal held by Tri-B Acres Inc. Erie provided a written offer reflecting the oral agreement, which Seres' Farms presented to Tri-B. Tri-B failed to match the offer, but Seres' Farms accepted Tri-B's offer anyway.

Erie sued for specific performance.

The trial judge found a binding oral agreement existed and that acts of part performance took it outside the Statute of Frauds.

The Court of Appeal dismissed Tri-B's appeal, upholding the specific performance order because the property was unique and damages were inadequate.

The appellant employer appealed a motion judge's decision dismissing its motion to stay the respondent employee's constructive dismissal action.

The employer argued that Michigan law governed the employment relationship and that Michigan was the more convenient forum.

The Court of Appeal dismissed the appeal, finding that the employment contract did not stipulate the governing law and that the motion judge correctly determined there was a real and substantial connection to Ontario, making it the more convenient forum.

The appellant appealed a jury verdict regarding a motor vehicle accident where the respondent suffered a severe brain injury.

The jury found the appellant's driver 61% liable and the respondent 39% liable, awarding nearly $14 million for future care costs.

The appellant argued the liability apportionment and damages were perverse and resulted from deficient jury instructions.

The Court of Appeal dismissed the appeal on liability and damages, finding the jury's conclusions were not plainly unreasonable and the trial judge's instructions were adequate.

However, the court allowed the appeal on costs in part, reducing the substantial indemnity costs award to prevent it from amounting to full indemnity.

Three appellants appealed decisions of the Health Services Appeal and Review Board denying payment for out-of-country medical treatment because they did not obtain prior written approval from the General Manager of OHIP.

The Divisional Court held that while the Health Insurance Act and regulations do not expressly confer discretion to grant retroactive prior approval, such authority is necessarily implied in urgent circumstances where prior approval cannot be obtained.

The Court rejected arguments based on legitimate expectations, promissory estoppel, limitation periods against minors, and sections 7 and 15 of the Charter.

Two of the appeals were allowed and remitted to the Board to determine if urgent circumstances existed, while the third was dismissed.

The appellant appealed a trial judgment awarding damages for trespass to land and chattels, and aggravated damages.

The Court of Appeal upheld the $35,000 award for trespass to chattels and the $5,000 award for trespass to land, finding sufficient evidence of actual damage.

However, the court set aside the $10,000 aggravated damages award to the individual plaintiff, as the trespass was committed against the corporate plaintiff.

The appeal was allowed in part, reducing total damages to $40,000.

The testator bequeathed his shares in a family business to his sister.

A brother challenged the bequest, arguing it violated a shareholders' agreement restricting share transfers.

The trial judge found the bequest null and void.

On appeal, the Court of Appeal held that contractual obligations do not constrain a person's ability to bequeath property by will.

Under section 67(2) of the Business Corporations Act, the estate trustees are entitled to be treated as registered security holders.

While the estate trustees are bound by the shareholders' agreement and cannot immediately distribute the shares without compliance, this does not render the bequest void.

The appeal was allowed.

The appellant bank appealed a trial judgment dismissing its action against the respondent guarantor.

The respondent had personally guaranteed a $700,000 line of credit for his company and provided a $700,000 collateral mortgage.

After the company became insolvent, the respondent paid $700,000 to discharge the mortgage, but the bank demanded an additional $700,000 under the guarantee.

The trial judge found a common mistake, holding that the parties intended the mortgage to secure the guarantee, and rectified the agreement.

The Court of Appeal dismissed the appeal, affirming that the prerequisites for rectification of unilateral mistakes do not apply to common mistakes, and the trial judge's findings were reasonably supported by the evidence.

The appellant, La-Z-Boy, appealed a trial judgment finding that the respondent sales agent was an employee, not an independent contractor, and was entitled to 20 months' reasonable notice of termination.

The Court of Appeal upheld the trial judge's finding that an employer-employee relationship existed, noting the appellant's extensive control over the respondent's sales activities.

The Court also held that a 60-day notice provision in the parties' annual agreement was unenforceable because the respondent received no fresh consideration for giving up his common law right to reasonable notice.

The appeal was dismissed.

The appellant appealed an order finding that its proposed location for a railway line easement over the respondents' lands did not comply with the terms of an Option Agreement.

The Court of Appeal upheld the application judge's finding that the proposed location significantly departed from the parameters set out in Schedule A of the agreement.

However, the Court disagreed with the application judge's secondary finding that the location issue should consider business interference, noting that business interference relates to the use of the easement, not its location.

The appeal was dismissed, leaving it open for the appellant to propose a new location conforming to the agreement.

The Minister of Finance appealed a decision entitling the respondent corporation to defer land transfer tax on the acquisition of properties from a related company.

The deferment depended on whether the two companies were 'affiliates' controlled by the same person under the Land Transfer Tax Act.

While the companies were under the de facto control of the same individual, they were not under the same de jure control.

The Court of Appeal held that the statutory definition of control is exhaustive and requires de jure control.

The appeal was allowed and the Minister's decision denying the deferment was restored.

Following a successful appeal where a new trial was ordered, the parties agreed that the costs of the original trial should be reserved to the judge conducting the new trial.

The Court of Appeal endorsed this agreement.