Peter B. Hockin

This motion concerned the interpretation of a commercial lease between a pharmacy (applicant) and a medical centre (respondent) regarding rent calculation.

The applicant argued that rent should be based on the actual measured square footage of the premises, while the respondent contended it was a fixed amount regardless of space.

The court applied principles of contractual interpretation, including the parol evidence rule, to determine the parties' mutual objective intention.

The applicant also sought reimbursement for overpaid utility charges and the return of a security deposit.

The plaintiff, Cornerstone Properties Inc., sued Southside Construction Management Ltd. seeking to pierce its corporate veil to satisfy approximately $53,500 in costs orders.

These costs were awarded against 2108790 Ontario Inc. (2108), a company beneficially owned by Southside, in a prior action.

Cornerstone alleged that 2108 was a "mere puppet" created by Southside for a fraudulent or improper purpose to acquire land and avoid liability for costs.

The court applied the Transamerica test for piercing the corporate veil, which requires complete control of the subsidiary and its incorporation for a fraudulent or improper purpose or use as a shell for improper activity.

The court found that 2108's formation to acquire the Urlindale lands was for a lawful purpose, and there was no evidence of fraudulent or improper conduct.

The court also determined it lacked jurisdiction to make a standalone costs order against Southside as a non-party to the original action.

The action was dismissed.

Gibbs & Associates (G.A.), a law firm, sought a court determination on the scope of an assessment of its legal accounts rendered to 1904601 Ontario Ltd. (190).

Following a lien release agreement, 190 unilaterally initiated an assessment for ten accounts, including some already paid and outside the agreed scope of five outstanding accounts.

The court characterized 190's actions as "sharp practice." The court ordered that accounts 8 through 13 be assessed, finding that accounts 1 through 4, which were paid more than 12 months prior and subject to a previous discount agreement, should not be assessed due to the absence of special circumstances and being out of time under the Solicitors Act.

The applicant appealed two Orders to Remedy Unsafe Building issued by the Chief Building Official (CBO) for the City of St. Thomas, seeking to quash the orders and obtain an injunction against demolition.

The court, hearing the consolidated applications as appeals under the Building Code Act, reviewed the CBO's decisions on a standard of reasonableness.

Based on extensive engineering reports detailing severe structural deterioration, lack of owner's funds for repairs, and inadequate insurance, the court found the CBO's conclusion that the building was unsafe to be reasonable.

The applications were dismissed, and the CBO's orders were confirmed.

The defendants brought a motion to terminate a reference under Rule 54.04, seeking to return the action to the regular court stream.

The plaintiff opposed.

The court determined that the reference could not be concluded without the referee delivering an interim or final report and a mediation taking place, as stipulated by the original order and Rules 54.06 and 54.08(1).

Consequently, the motion was adjourned pending the completion of these steps.

The case involved multiple motions in a long-standing family law dispute.

The respondent's motions for an accounting of trust funds and allegations of fraud/breach of trust against the applicant's solicitor were dismissed, with the court accepting the solicitor's accountant's explanation of an innocent overpayment which was set off against support arrears.

The applicant's motion to strike the respondent's pleadings for persistent failure to provide financial disclosure, despite multiple court orders, was granted.

The court emphasized the fundamental obligation of financial disclosure in family law and deemed the respondent's conduct exceptional, warranting the striking of pleadings.

The plaintiff, a lawyer, sued her former law firm for wrongful dismissal, asserting she was an employee.

The defendant firm contended she was a partner.

The court applied the "substance over form" principle to determine the true nature of the relationship, examining factors such as participation in firm management, access to financial information, tax filings, and benefits.

The court concluded that the plaintiff was a partner, not an employee, and therefore dismissed her claim for wrongful dismissal.

A commercial landlord sued a prospective tenant for damages arising from the tenant’s refusal to proceed with a lease after an offer to lease had been executed and a draft lease negotiated.

During design work, the parties discovered that a structural bearing wall prevented installation of the large windows contemplated by the offer, and that installing them would cost more than ten times the estimated amount.

The court held that the subsequent draft lease was unenforceable under the Statute of Frauds because it was never signed and no written memorandum satisfied the statute.

The court further found that the original offer to lease was frustrated by an unforeseeable structural condition that fundamentally altered the nature of the bargain, as the building could not reasonably provide the natural light and design features essential to the tenant’s intended use without radically increased cost.

Both the action and the tenant’s counterclaim were dismissed.

A construction contractor brought a motion seeking to stay its own court action so that the parties’ dispute over project delays and asbestos-related issues could proceed under the arbitration provisions contained in a CCDC-2 construction contract.

The defendant argued the motion was brought too late and that the contractual dispute resolution process had been discharged.

The court held that although s. 7 of the Arbitration Act, 1991 did not apply because the moving party had commenced the action, the court retained authority under s. 106 of the Courts of Justice Act to stay the proceeding.

Given the strong policy favouring arbitration and the parties’ contractual agreement to resolve disputes through the contract’s dispute resolution process culminating in arbitration, the court exercised its discretion to stay the action.

Issues regarding delay or compliance with contractual timelines were matters for the arbitrator.

The plaintiffs brought a motion under Rule 30.02(2) of the Rules of Civil Procedure seeking production of a statement prepared by a property manager shortly after a motor vehicle accident on a commercial parking lot.

The statement had been created following the accident after the property manager contacted the insurer and an adjuster and anticipated litigation.

The court held that litigation privilege attached because the dominant purpose of the investigation and statement was to prepare for potential litigation and assist the employer’s defence.

The court further held that privilege was not waived when the witness reviewed the statement prior to her examination for discovery.

The motion for production was therefore dismissed.

The applicant sought certiorari to quash a decision of a provincial court judge who assumed jurisdiction over sentencing after the original judge who received the guilty pleas became ill.

The issue was whether jurisdiction could be transferred under s. 669.2 of the Criminal Code where the original judge was expected to return within a reasonable time.

The court held that the lower court erred by treating the provision as a case management tool and assuming jurisdiction despite a reasonable expectation that the seized judge would return shortly.

Because the statutory requirement that the original judge be unable to continue was not established, jurisdiction should have remained with the judge who accepted the guilty pleas.

The impugned order was quashed.

The plaintiff software company brought a motion seeking injunctive relief prohibiting the defendants from marketing competing software allegedly derived from the plaintiff’s proprietary source code and confidential information.

The motion followed earlier interlocutory orders requiring both parties to deposit their source code and select an independent expert to conduct a comparative analysis to determine whether copyright infringement had occurred.

The court found the original injunction resembled a quia timet order granted on speculative evidence, with no proof of actual or imminent harm.

The defendants had repeatedly proposed a neutral comparison of the competing source codes, including permitting the plaintiff’s own expert to conduct the review, while the plaintiff declined to proceed.

The court held that irreparable harm had not been established and that the balance of convenience favoured allowing the defendants to continue selling their software pending trial.

The motion for injunction and related motions were dismissed and the status quo maintained pending expert comparison.

The defendant brought a motion to set aside service of a statement of claim and stay an Ontario action alleging a historical sexual assault that occurred decades earlier in Ontario.

The plaintiff resided in the Middle East and had not lived in Canada for approximately 30 years, while the defendant had resided in Manitoba since the early 1970s and had serious health issues.

Applying the real and substantial connection test and forum non conveniens principles, the court held that the connection between the claim and Ontario was insignificant and that the presence of plaintiff’s counsel in Ontario did not establish jurisdiction.

The court further determined that Manitoba was the more appropriate forum, given the defendant’s residence and health circumstances.

Service was set aside and the proceeding was stayed.