Paul Hendrikx

In an application under the Arbitration Act, 1991 to set aside or alternatively seek leave to appeal parts of an arbitral award, the respondent municipality brought a motion challenging the court's jurisdiction over the appeal aspect and seeking cross-examination on an affidavit filed by opposing counsel.

The court held that an arbitration clause providing that the arbitrator's decision would be final and binding and that there would be no appeal implicitly excluded any application for leave to appeal under s. 45(1).

The court refused to dismiss the jurisdiction motion for delay or defer it to the application judge, ordered the deponent to attend for cross-examination with relevant documentation, and awarded the moving party its $527.80 non-attendance expense.

The cross-motion to compel opposing counsel to attend for cross-examination was dismissed.

Following a trial where the plaintiffs were successful and the third party action was dismissed, the court determined the costs payable by the defendants.

The plaintiffs were awarded costs on a partial indemnity scale up to the date of their Rule 49 offer to settle, and on a substantial indemnity scale thereafter.

The third party was awarded costs on a partial indemnity scale.

The court also fixed the prejudgment interest rate at 2.5% pursuant to the Courts of Justice Act.

The plaintiffs brought an action to enforce a $408,000 promissory note and consulting agreements executed in 1992 as part of a family grocery business succession plan.

The defendants argued the consulting payments were intended to pay off the note and claimed the third-party solicitor was negligent for acting for all parties.

The court found the agreements were independent, the defendants fully understood the terms, and the sale of the business triggered the note's payment.

The court dismissed the solicitor negligence claim, finding no breach of the standard of care as the parties were in agreement at the time.

In a shareholder and oppression dispute arising from a failed business relationship, the defendants moved to dismiss the action for delay and alternatively sought further discovery relief, while the plaintiff moved to compel answers to discovery refusals.

The court held that the relevant period of delay was approximately two years, not five, and that although prejudice was presumed because the limitation period had expired, the presumption was rebutted and actual prejudice was not proven.

The court also rejected an estoppel argument based on opposing counsel's silence.

The dismissal motion was refused, the plaintiff obtained limited relief on specified refusals and production, and the defendants' cross-motion for further answers and a fresh examination was dismissed.