Nathan Wainwright

The applicant and one of the respondents, siblings and co-estate trustees, sought directions on six issues regarding the administration of their mother's estate.

The court denied requests to have the estate pay the trustees' legal fees, finding the litigation was personal and adversarial.

The court also resolved disputes over rent-free occupation of estate property, an estate vehicle, and a loan.

Finally, the court awarded $25,000 in total executor compensation, split equally between the two trustees, noting their poor cooperation and the excessive time taken to administer the estate.

The appellant appealed a motion judge's decision declining to enforce a settlement agreement.

The appellant had accepted a Rule 49 offer to settle for $25,000, but the respondents resiled, arguing changed circumstances.

The motion judge found the offer was validly accepted but declined to enforce it, inferring that the respondents' counsel made a mistake by failing to withdraw the offer.

The Divisional Court allowed the appeal, finding the motion judge erred by basing his decision on an argument not advanced by the parties and by inferring a mistake without evidence.

The settlement agreement was declared valid and enforceable.

The plaintiff brought a motion to strike the defendant's pleadings and for directions after the defendant failed to comply with a previous order to allow the recovery of personal property and pay costs.

The court issued detailed directions establishing a protocol for the plaintiff to retrieve its chattels, including the attendance of independent third parties.

The motion to strike was adjourned to allow the defendant to respond, with a warning that further non-compliance would be grounds to strike the pleadings.

The respondents brought a motion to adjourn or stay an upcoming appeal pending the outcome of an application before the Workplace Safety and Insurance Appeals Tribunal.

The respondents argued that the Tribunal might find the subject matter of the underlying action to be within its exclusive jurisdiction, which would preclude the Superior Court from enforcing a settlement of that action.

The court dismissed the motion, finding that the issue on appeal—whether a legally enforceable settlement agreement was reached—was distinct from the merits of the claim and likely outside the Tribunal's jurisdiction.

The court also found that the respondents failed to bring their jurisdictional challenge and request for a stay on a timely basis.

The respondents brought a motion to strike an oppression application commenced by the applicants.

The applicants were minority shareholders of a holding company that owned a minority interest in the respondent corporation, but did not own shares in the respondent corporation directly.

The moving parties argued that the applicants were not proper 'complainants' under s. 245(c) of the Business Corporations Act.

The court dismissed the motion, finding that it was not plain and obvious that the applicants would fail to qualify as complainants, given the court's broad discretion and the factual issues surrounding the corporate structure and the applicants' relationship to the company.

The plaintiff, a general contractor, sought an injunction to prevent Tarion Warranty Corporation from drawing on two performance bonds after Tarion terminated the plaintiff from a repair project for a leaking condominium parking garage.

The plaintiff argued the bonds were conditional payment obligations subject to a repair agreement.

The court found the bonds were autonomous demand bonds, meaning Tarion's right to call on them was independent of the underlying contract.

Applying the Supreme Court's decision in Angelica-Whitewear, the court held that an injunction against a demand bond requires a strong prima facie case of fraud.

As the plaintiff did not allege fraud, the motion was dismissed.

The court also noted the plaintiff would fail the traditional RJR-MacDonald test for injunctive relief.

The court provided additional reasons for its decision on two motions regarding a construction dispute.

On the discharge motion, the court discharged the plaintiff's construction lien, finding that the work performed was an extraction operation rather than an improvement to the land, meaning no right to a lien existed.

On the preservation motion, the court granted the plaintiff's request to preserve the extracted rock and wood, finding that the material was central to the dispute and the balance of convenience favoured preservation to ensure fair adjudication.

The parties, two closely held private companies owned by brothers, disputed an unwritten agreement allowing the plaintiff to extract aggregate and timber from the defendants' land.

The defendants brought a motion to discharge a construction lien registered by the plaintiff, while the plaintiff brought a motion to preserve harvested wood and blasted rock on the property.

The court granted the defendants' motion to discharge the lien, finding no lienable services were provided and the lien was not preserved in time.

The court also granted the plaintiff's motion for an interim preservation order, finding the test under Rule 45.01 was met.

The applicant sought an order for the sale of a jointly-owned property under the Partition Act.

The respondent, who had been in sole occupation and receiving rental income for five years, did not oppose the sale but disputed terms regarding the realtor, property taxes, bidding rights, and costs.

The court ordered the sale of the property, requiring an arms-length realtor, allowing the respondent to bid, and ordering the respondent to pay $2,000 in costs to the applicant.

The net proceeds of sale were to be equally divided, with any tax liens paid by the responsible party.

Anne Winkworth, a co-estate trustee, brought a motion for directions concerning the sale of the last major asset of the estate, a property in Thunder Bay.

While the parties largely agreed on the sale, disputes remained regarding the holding of sale proceeds and costs.

The court ordered the property to be listed for sale, suspended any beneficiary purchase rights until after the listing, and directed that net sale proceeds, after specific expenses and Anne's fixed costs, be held in trust by Anne's counsel pending further agreement or court order.

Anne was awarded $2,000 in costs, to be a first charge on the sale proceeds.