Nathan Wainwright

The appellant appealed a trial judgment awarding the respondent contractor damages for additional construction work performed outside the scope of their written agreement.

The appellant argued the trial judge erred by refusing to admit a late affidavit, failing to apply the correct tests for oral contracts and quantum meruit, and providing insufficient reasons.

The Divisional Court dismissed the appeal, finding the trial judge properly exercised trial management discretion to exclude the late affidavit, reasonably valued the additional work at the contractor's regular rates under quantum meruit principles, and provided adequate reasons for the decision.

The defendant, Wilco Contractors Superior Inc., brought a motion to transfer a breach of contract action commenced by Don Anderson Haulage Limited (DAHL) from Newmarket to Thunder Bay.

The court considered the nine factors under Rule 13.01.02(2)(b) of the Rules of Civil Procedure and found that the majority of the factors, including the location of the events, damages, and convenience of witnesses, favoured a transfer to Thunder Bay.

The motion was granted, and the action was ordered transferred.

Costs were awarded to the defendant on a partial indemnity basis, with written submissions on costs to follow.

The defendant, The Corporation of the Township of Ignace, sought an adjournment of the trial for a wrongful dismissal and breach of contract claim brought by the plaintiff, Lynda Marie Joan Colby, pending the outcome of a related appeal to the Supreme Court of Canada in another case involving the same defendant and similar issues.

The court dismissed the motion, finding that the main claim to be advanced at trial—breach of contract—would not be affected by the pending appeal, and that adjourning the trial would set a problematic precedent.

The appellants appealed an order requiring them to purchase the respondent's minority shares in a corporation.

The motion judge made the order to advance the litigation, finding that both parties ultimately wanted a share buyout.

The appellants argued they were denied procedural fairness because the issue of a compelled share purchase was not formally before the motion judge, and that a finding of oppression was required first.

The Divisional Court dismissed the appeal, holding that the appellants had notice of the argument, suffered no prejudice, and that the court had broad discretion under the Business Corporations Act to order a share purchase without a finding of oppression.

The appellants appealed a motion judge's refusal to stay a civil action.

The appellants argued the respondent breached the common law implied undertaking rule by using documents disclosed in an Ontario Labour Relations Board proceeding to initiate the civil action.

The Divisional Court held that the Rules of Civil Procedure do not supplant the common law implied undertaking for administrative proceedings, and found that the respondent breached the undertaking.

However, because the appellants suffered no prejudice, the court declined to stay the action and instead ordered substantial indemnity costs against the respondent.

The plaintiff contractor brought an action against the defendant owner for extension and delay costs incurred during a construction project governed by a CCDC2 fixed price contract.

The project was delayed by six months due to owner-directed changes and design issues, which were addressed through Change Orders that extended the contract time and increased the price, but did not include the contractor's site and delay costs.

The court dismissed the action, finding that under the fixed price contract, the contractor was required to include all costs associated with a change in the Change Orders, or alternatively, provide timely written notice of a delay claim.

The court also declined to grant relief from forfeiture, concluding that the contractor's failure to follow the contractual notice provisions was unreasonable and undermined the cost certainty intended by the contract.

The plaintiff brought a motion for the interim preservation of a 1963 Pontiac Parisienne, alleging he purchased it from the defendant who subsequently resiled from the agreement.

The defendant sought an adjournment to challenge the court's jurisdiction, as the sale occurred in Illinois.

The court granted an interim interim preservation order, finding a serious issue to be tried and that the balance of convenience favoured preserving the unique vintage vehicle.

The order was made without prejudice to the defendant's right to bring a jurisdictional motion, and the plaintiff was required to pay the balance of the purchase price into court.

Following an interpleader application regarding funds held for a construction project, two creditors asserted priority claims which were dismissed.

Two other respondents took the lead in opposing these priority claims and subsequently sought their costs.

The court awarded $10,000 in partial indemnity costs to the successful respondents, to be paid equally by the unsuccessful creditors, with the award divided 60/40 in favour of the respondent who took the primary lead.

The respondents, Grid Link Corp. et al., moved to stay a prior order requiring them to purchase the applicant Foglia's shares and produce financial documents for valuation, pending their appeal of that order.

The court applied the three-part test for a stay, finding the appeal had low prospects of success, no irreparable harm was proven (as concerns about confidential information misuse were speculative and eventual disclosure was inevitable), and the balance of convenience favored allowing the valuation to proceed without further delay.

The motion for a stay was dismissed.

The court also clarified that the deemed undertaking rule did not apply to the compelled disclosure, imposing a specific protective order for the financial information.

The Court of Appeal quashed an appeal originating from an oppression remedy application, finding that the case management judge's substantive order for share purchase and valuation was appealable only to the Divisional Court under the Business Corporations Act, not the Court of Appeal.

The matter was transferred to the Divisional Court.

The defendants brought a motion for leave to appeal the order of Fitzpatrick J. dated March 29, 2023.

The Divisional Court granted the motion for leave to appeal and ordered the responding party to pay costs of $3,500 to the moving parties.

This motion for judgment sought to enforce an alleged settlement agreement in two related estate litigation actions concerning the estate of Beatrice Labrash.

The first action involved the Estate seeking to recover real property transferred to the deceased's son, Grant Labrash, by right of survivorship.

The second action was a challenge by Grant to the validity of the deceased's 2010 Will.

The court found that a settlement was reached between Grant and Derrick Lamarche, in his personal capacity and as Estate Trustee of Beatrice's Estate.

However, the settlement's enforceability was complicated by a crucial term involving the sale of a property (20 Park Crescent) that had been transferred to Hellan Lamarche personally and subsequently to her Estate Trustees (Derrick, Bradley Lamarche, and Annette Fishwick).

The court could not find that Bradley and Annette, who were not parties to the litigation and not clients of Derrick's counsel, had agreed to the settlement.

Consequently, the motion for judgment was denied without prejudice, allowing the moving party to seek further submissions on the court's authority to bind Hellan's Estate to the settlement.

The Plaintiffs brought a motion for a Mareva injunction and ancillary relief, alleging a significant fraud where over $17,000,000 in investor funds were misappropriated from a litigation financing business and diverted to companies controlled by the Defendants to purchase real estate and other assets, resembling a Ponzi scheme.

The court granted the Mareva injunction, finding a strong prima facie case of fraud, a serious risk of asset dissipation (evidenced by attempts to sell properties and the defendants' lack of forthrightness), and that the balance of convenience favored the plaintiffs.

The court also ordered the net proceeds from the sale of a specific property to be held in trust and granted substituted service for two defendants.

The defendants moved to dismiss or permanently stay the plaintiff's action, alleging a breach of the common law deemed or implied undertaking rule.

They claimed the plaintiff used documents obtained from an Ontario Labour Relations Board (OLRB) matter to prepare its statement of claim in the civil action.

The plaintiff argued there was no breach, or alternatively, sought relief from the consequences.

The court dismissed the defendants' motion, finding that Ontario's Rule 30.1.01(2) limits the deemed undertaking rule to evidence obtained through discovery processes under the Rules of Civil Procedure, and therefore does not apply to documents obtained from an unrelated proceeding in another forum like the OLRB.

The Respondents moved to convert an oppression remedy application into an action, asserting material facts were in dispute.

The Applicants sought a sale of shares.

The court, exercising its case management authority, adjourned the conversion motion.

Instead, recognizing the parties' shared ultimate objective of a share divestment, the court ordered the Respondents to purchase the Applicant's shares and established a comprehensive timetable for expert valuation, aiming to expedite the resolution of the long-standing corporate dispute.

The applicant First Nation sought an interpleader order to pay a construction holdback fund into court due to multiple adverse claims from subcontractors, a garnishee, and the Canada Revenue Agency (CRA).

The court granted the interpleader, finding that the fund was neither the property of the general contractor (Razar) nor a debt payable to Razar, based on the contract terms and the Construction Act's trust provisions.

Consequently, the priority claims of the garnishee and CRA were dismissed as premature, as their claims depended on the fund being the general contractor's property.

The moving parties (respondents in the main application) brought a motion to strike out the responding party's application, arguing that the dispute over the interpretation of a business sale agreement should proceed by way of an action rather than an application.

The underlying dispute involved the location of a fourth sewage site to be developed under the contract.

The court dismissed the motion to strike, finding that the application framework under Rule 14.05(3)(d) was appropriate for contractual interpretation, even if some factual context was required, and that it was not plain and obvious that the application could not succeed.

The appellants, Robin and Jennifer Lacey, appealed a decision dismissing their application for declaratory relief and a Writ of Possession concerning a 99-year lease held by the respondent, Kakabeka Falls Flying Inc., over a portion of their property.

The appellants argued the lease violated the Planning Act.

The application judge found the lease commenced prior to May 2, 1968, thus exempting it from the Planning Act's subdivision prohibition, and that the appellants' claim was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld these findings, dismissing the appeal and awarding costs to the respondent.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal on the basis that it appeared to be premature, without prejudice to the parties' positions on the final determination of the motion.

No costs were ordered.

The applicant sought remedies under the Business Corporations Act after discovering the respondent co-director had forged his signature on pandemic relief loans and deposited fraudulent cheques, leaving the corporation in debt.

The respondent admitted to the forgeries.

The court granted judgment for the $35,000 the applicant paid to cover the overdraft, awarded $25,000 in punitive damages, set aside the forged loan agreements and personal guarantees, and awarded substantial indemnity costs.