Neil G. Wilson

The parties, two brothers who jointly own a cement delivery business through separate corporations, reached a settlement in their oppression applications involving a shotgun buy-sell agreement.

A dispute arose regarding the payment of legal fees incurred by one brother (DN) from the business's revenues, which had been the historical practice.

The other brother (GN) refused to transfer funds to pay a $364,346.96 legal invoice, arguing the fees were unreasonable and disproportionate to his own.

The court found that GN's refusal breached the status quo agreed upon in the settlement and ordered GN to transfer the funds.

The court also dismissed GN's request to refer the legal accounts for assessment, finding he lacked standing under section 9 of the Solicitors Act.

The moving party brought a motion for leave to appeal the order of Price J. The Divisional Court dismissed the motion for leave to appeal without costs.

The moving parties sought leave to appeal an order of the motion judge.

The Divisional Court dismissed the motion for leave to appeal as moot because in-person civil jury trials were anticipated to resume, and the action remained scheduled for October 2022.

The dismissal was without prejudice to the moving parties' right to re-submit the motion if circumstances prevented the trial from proceeding with a jury as scheduled.

The plaintiff successfully moved for an order to compel production of records and permit questioning from a non-party assessment company and its retained doctor, overcoming a claim of litigation privilege.

This endorsement addresses the costs of that successful motion.

The court awarded the plaintiff partial indemnity costs in the amount of $16,877.92, finding the motion involved important and complex issues, and that the time spent by the plaintiff's counsel was reasonable and not excessive, despite the defendants' arguments regarding proportionality and necessity of certain steps.

The appellants appealed an order determining the terms of a shotgun buy/sell agreement reached to settle oppression claims.

They argued the application judge erred by refusing to include a term requiring the corporation to indemnify one of the appellants for personal tax liability.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error of fact in the application judge's conclusion that there was insufficient evidence of such an agreement and that the proposed term was not commercially reasonable.

The plaintiff sought an order to compel production of records from a non-party assessment company, HVE Healthcare Assessments, and its retained expert, Dr. Joel Finkelstein, and to permit questioning of HVE.

The plaintiff argued that litigation privilege should yield to the principle of fairness, citing a reasonable suspicion that HVE improperly influenced Dr. Finkelstein's report, particularly concerning the summarization of surveillance evidence and the delayed disclosure of a conflicting expert report.

The court found a factual foundation for this suspicion, noting inconsistencies and the defendants' refusal to answer questions regarding HVE's involvement.

The court ordered the defendants to produce all relevant records from HVE and Dr. Finkelstein, excluding solicitor-client privileged communications, as these were deemed foundational documents not protected by litigation privilege under the circumstances.

The defendants were also ordered to pay the plaintiff's costs.

In additional reasons following a summary judgment motion regarding a commercial lease dispute, the court determined the quantum of damages owed to the plaintiff landlord.

The court denied the plaintiff's motion to amend its pleadings to claim a higher pre-judgment interest rate, finding it would cause non-compensable prejudice as the request came after the summary judgment decision.

The court also reduced the plaintiff's claim for future rent after discovering the plaintiff had failed to disclose that the property was sold and demolished, terminating the rent obligation on the date a letter of intent for the sale was signed.

The plaintiff was awarded $199,136.01 in total damages for future rent and additional rent.

The defendant moved for a third adjournment of a five-year-old civil trial, citing the childcare responsibilities of counsel during the third wave COVID-19 lockdown.

The plaintiff opposed further delay, noting the defendant had also served a late expert report during the interregnum.

The court granted a short adjournment to June 2021 to accommodate counsel's family responsibilities, making the new date peremptory to the defendant, but declined to delay the trial until September to accommodate counsel's competing arbitration commitments.

The plaintiff landlord brought a motion for summary judgment seeking a declaration of entitlement to $288,000 held in trust under a Termination Agreement and damages for unpaid rent.

The court found that the defendant tenant was entitled to the $288,000 held in trust, as it was consideration for giving up its rights to a long-term lease.

The court also found the tenant liable for arrears of Additional Rent and future rent following the termination of the lease for non-payment, but could not determine the quantum of damages on the current record, particularly given the recent demolition of the property.

The court ordered the funds to remain in trust pending a final determination of the set-off amount.

The plaintiff brought a motion for partial judgment under Rule 51.06 for $1,038,616, an amount admitted by the defendants to have been misappropriated while acting in a fiduciary capacity as trustees.

The plaintiff also sought a declaration that this debt would survive bankruptcy and substantial indemnity costs.

The court granted partial judgment for the admitted amount, awarded pre-judgment interest, and declared that the debt arose from fraud, embezzlement, misappropriation, or defalcation while acting in a fiduciary capacity.

However, the court declined to make a pre-emptive declaration that the debt would survive bankruptcy, deeming it hypothetical.

Partial indemnity costs were awarded to the plaintiff, and directions were given for scheduling the remaining summary judgment motion.

The defendant brought a motion for summary judgment to dismiss the plaintiff's defamation action on the basis that the limitation period had expired.

The plaintiff argued that the limitation period should be deferred under s. 5(1)(a)(iv) of the Limitations Act, 2002, because it was not legally appropriate to commence a civil claim while criminal charges arising from the defendant's statements to the police were ongoing.

The court applied the Court of Appeal's reasoning in Sosnowski v. MacEwan Petroleum, finding that the civil claim and criminal charges were not 'two sides of the same coin' and that subjective, evaluative concerns do not delay discoverability.

The motion was granted and the action was dismissed.

Jereemy Tan, the moving party, sought an extension of time to file a notice of appeal against a Superior Court decision that authorized a Receiver to disclaim an agreement of purchase and sale for a property.

The moving party's counsel inadvertently missed the 10-day appeal deadline, believing it was 30 days.

The Court of Appeal granted the extension, finding the delay was short and excusable, prejudice to respondents negligible, and the proposed appeal met the low threshold for merit.

The court also determined the appeal was "as of right" under sections 193(b) and (c) of the Bankruptcy and Insolvency Act, as the decision could affect other similar cases and involved property exceeding $10,000 in value.

Following a successful motion interpreting a price adjustment clause in a land development agreement, the applicant sought the return of disputed funds held in trust by the respondents' solicitor, along with interest.

The court determined the appropriate interest rates for both the undisputed mortgage amounts paid late by the applicant and the disputed funds held in trust by the respondents.

The court awarded 4% simple interest to the respondents on the late undisputed payments and 4% simple interest to the applicant on the disputed funds held in trust, allowing the respondents to retain the GIC interest earned.

The applicant, a monocular bus driver, challenged the constitutionality of the vision standards in s. 18(3) of the Drivers' Licences Regulations under s. 15 of the Charter.

The regulations imposed a blanket prohibition on monocular individuals holding a Class C commercial driver's licence.

The court found that the regulations substantively discriminated against the applicant based on her physical disability by perpetuating the stereotype that all monocular drivers are unsafe, without allowing for individual assessment.

The court further held that the infringement was not minimally impairing and therefore not justified under s. 1 of the Charter.

The court declared the regulations unconstitutional but suspended the declaration for 12 months to allow the government to amend the legislation, denying the applicant's request for an immediate individual exemption.

The defendant sought to schedule a summary judgment motion in two related actions concerning failed pre-construction home purchases.

The plaintiffs opposed, arguing it would not be the most expeditious or efficient process.

The court, exercising its gatekeeping function under Rule 50.13(6), declined to schedule the summary judgment motion, finding that a one-day trial would be more efficient given the limited time savings and the potential for overlapping factual determinations with other pleaded issues (misrepresentation, undue influence, exemplary damages).

The court emphasized that partial summary judgment is only appropriate for discrete, severable issues.

A timetable for documentary production, discoveries, and mandatory mediation was ordered.

This decision addresses costs following a 17-day trial involving two consolidated actions: a construction lien action and a debt recovery action.

The court awarded costs to Kalogon Spar Ltd. and Dino Coliviras, fixing the amount at $190,000 inclusive of disbursements and HST, payable from a standby letter of credit.

The court declined to apply Rule 49 cost consequences due to insufficient evidence from Kalogon regarding costs incurred at the time of settlement offers.

The court considered various factors, including the parties' conduct, the complexity of the proceedings, and the proportionality of the award, noting that both parties displayed inflexibility and Kalogon's principal failed to keep proper records, which significantly increased litigation costs.

The parties engaged in a dispute over the renovation of a residential property.

The plaintiff contractor claimed unpaid amounts for construction work, alleging an oral agreement for project management and general contracting.

The defendant homeowners alleged the project was a joint venture to flip the property and claimed damages for incomplete and deficient work, as well as unpaid loans.

The court found no enforceable contract or joint venture existed due to a lack of certainty of terms.

The court applied quantum meruit, valuing the work performed by the contractor and deducting the cost of proven deficiencies.

The court ordered the homeowners to pay the remaining balance to the contractor.

The parties engaged in a dispute over the renovation of a residential property.

The plaintiff contractor claimed unpaid amounts for construction work, alleging an oral agreement for project management and general contracting.

The defendant homeowners alleged the project was a joint venture to flip the property and claimed damages for incomplete and deficient work, as well as unpaid loans.

The court found no enforceable contract or joint venture existed due to a lack of certainty of terms.

The court applied quantum meruit, valuing the work performed by the contractor and deducting the cost of proven deficiencies.

The court ordered the homeowners to pay the remaining balance to the contractor.

The appellant appealed a summary judgment decision granting specific performance of an agreement of purchase and sale for a Toronto property.

The respondent sought to purchase the property for $4.5 million but the transaction failed to close on the scheduled date.

The central issue was whether the appellant's conduct in providing an altered estoppel certificate and delivering the correct certificate only one hour before the 6:00 p.m. closing deadline precluded it from relying on the time-of-the-essence clause.

The Court of Appeal upheld the summary judgment, finding that the appellant's misconduct prevented it from enforcing the strict closing deadline and that specific performance was an appropriate remedy.

The appellants appealed a decision of the Superior Court regarding the interpretation of a "Net Developable Area" clause in two agreements for the purchase and sale of development lands.

The central issue was whether tableland used for storm water management ponds was included in the definition of Net Developable Area when such lands fell within the Protected Countryside designation of the Greenbelt Plan.

The Court of Appeal upheld the application judge's interpretation, finding that the parenthetical exception did not apply to Greenbelt lands and that the terms "open space lands" and "Greenbelt lands" have distinct meanings subject to different planning controls.