Richard J. Worsfold

In a family shareholder dispute on the Commercial List, the moving parties sought summary judgment dismissing a cross-application as statute barred under the Limitations Act, 2002 and also sought appointment of a valuator under a unanimous shareholders agreement.

The court held that the responding shareholder knew or ought to have known by July 25, 2008 of the material facts supporting his breach of contract and oppression claims arising from the 2008 sale of shares in related corporations, so those claims were out of time.

However, the oppression claim concerning reimbursement of legal fees paid by the corporation on behalf of individual shareholders survived because the factual basis for that issue was only discovered in 2014.

The court appointed the proposed valuator and deferred the remaining fee-related oppression issue until after completion of the valuation and purchase process.

This was a post-trial costs decision following lengthy, highly contested mortgage litigation and an 11-day trial.

The successful defendants sought either full indemnity costs or a blended award, relying on their unaccepted offer to settle, fraud-like allegations advanced by the plaintiffs, and mortgage standard charge terms.

The court held that the offer to settle engaged Rule 49.10 and justified substantial indemnity costs from the offer date onward, while also recognizing limited enhancement arising from the unsuccessful fraud-like allegations.

After considering Rules 57.01 and 49 and the overall fairness of the award, the court fixed costs at $229,121.76.

Plaintiffs commenced an action alleging fraud, deception, and improper conduct arising from a series of mortgage and financial transactions involving real estate properties and business dealings.

The court held the action turned primarily on credibility and preferred the defendant’s evidence over that of the principal plaintiff.

The court found the plaintiff’s testimony inconsistent and unreliable, and concluded many claims were barred by the Limitations Act, 2002 and further defeated by the corporate veil where the transactions involved corporate entities rather than the individual plaintiff.

The plaintiffs failed to establish any contractual or legal basis for personal recovery.

The action was dismissed and judgment was granted on the defendant’s counterclaim for the outstanding mortgage balance.

Following an earlier order granting comprehensive directions concerning the administration of two related estates, the applicants sought costs.

The applicants had successfully obtained an order requiring, among other things, preservation of estate assets and directions relating to the administration of the estates and the conduct of attorneys acting under a power of attorney.

The court found that the responding estate trustees had taken unreasonable positions by refusing to provide an informal accounting and declining reasonable settlement efforts.

Applying the principles of proportionality and reasonableness under Rule 57.01, the court awarded full indemnity costs to the applicants.

Costs were ordered partly against the respondent trustees personally and partly payable from the capital of one of the estates.

The applicant corporation sought a stay of the respondent’s motion to set aside a 2007 judgment and requested security for costs due to the respondent’s failure to pay prior costs awards.

The respondent argued the costs were not payable by her and opposed security for costs.

The court found that prior orders imposed joint and several liability for the costs and that the respondent had failed to comply with those orders for several years while residing outside Ontario.

The court held that a party should not be permitted to pursue further relief while ignoring outstanding costs obligations.

The proceeding was stayed unless the respondent paid the outstanding costs and posted security for costs.

The applicants brought a motion for an Order for Directions regarding the estates of Enrico and Ida Carfagnini.

They sought to consolidate the two actions, obtain a preservation order, compel the passing of accounts by Ida's attorneys for property, and order the disclosure of third-party solicitor and financial records.

The respondents opposed the consolidation and the preservation order for Enrico's estate.

The court granted the applicants' motion, ordering the consolidation of the actions, a preservation order for both estates, the passing of accounts, and the requested disclosure, finding that the issues in both estates were intertwined and raised significant concerns.

The parties brought cross-motions regarding the valuation of the applicant's shares in a family holding company.

The applicant sought to have an arbitrator appointed or the issues heard in court, alleging oppression and breach of a unanimous shareholders' agreement regarding a 2008 transaction.

The respondents sought the appointment of a valuator, arguing the valuation date was fixed in 2007.

The court held that a valuator is not qualified to deal with oppression or breach of contract claims, and because a non-party to the shareholders' agreement was involved, arbitration was unavailable.

The court ordered that the oppression and breach of contract claims be dealt with by the court before any valuator is appointed.

A dispute arose following a fire at a heritage house unit within a condominium development regarding who had the right to control and conduct repairs to the damaged structure.

The unit owner sought an interlocutory and final injunction preventing the condominium corporation and insurer from proceeding with repairs and sought a declaration granting him exclusive authority over restoration.

The condominium corporation argued the declaration and condominium governance documents imposed the obligation to repair damage on the corporation and that the owner had failed to act within a reasonable time.

The court interpreted the condominium declaration and held the corporation had the right and obligation to carry out exterior and roof repairs to restore the property, while leaving interior renovation decisions to the unit owner.

The request for injunctive relief was denied and the corporation was authorized to proceed with exterior restoration.

The estate of a deceased shareholder brought a motion under Rule 59.06(2) of the Rules of Civil Procedure to vary a prior order requiring the deceased to purchase the other shareholder’s interest in a corporation owning a Hamilton property.

Following the shareholder’s death, the estate argued that the original premise of the order—his intention and ability to develop the property—could no longer be fulfilled.

The court held that the death constituted a new fact arising after the order that could not have been discovered with reasonable diligence.

Given that the estate lacked the capacity or intention to pursue development, the court varied the prior order and directed that the property be listed for sale on the open market.

Requests by the responding shareholders for historical costs and appraisal expenses were denied.

Respondents brought a motion under Rule 59.06(2)(a) and (d) of the Rules of Civil Procedure seeking to set aside a prior order requiring the purchase of one shareholder’s shares in a closely held corporation.

They argued that subsequent deterioration of a shareholder’s health, reduced developer interest in the company’s property, and litigation delay constituted new facts justifying the order’s reversal and instead requested a sale of the property and winding up of the company.

The court held that the alleged circumstances were not new facts arising after the order but risks that were known or reasonably foreseeable when the order was made.

The court further found that setting aside the order would not expedite resolution and that a subsequent order and appellate direction remained in force.

The motion was dismissed and the prior valuation process ordered by the Divisional Court was to proceed.

The appellant appealed an order dismissing his application.

The Court of Appeal dismissed the appeal, finding that the appellant was not an 'owner' as defined in the Condominium Act and therefore lacked standing to bring the application.

Costs of $3,000 were awarded to the respondents.

The plaintiffs moved for leave to appeal a decision refusing summary judgment in their favour regarding the ownership of shares in a Panama corporation.

The motion judge had concluded that a trial was necessary to determine whether the plaintiffs were entitled to 100% or 50% of the shares, as one of the plaintiffs had signed documents relinquishing 50% and the claim of duress lacked direct affidavit evidence.

The Divisional Court dismissed the motion for leave to appeal, finding no error in the motion judge's conclusion that a trial was required and noting that the issue did not raise questions of general or public importance.

The applicant, a member and volunteer at a psychological rehabilitation centre, alleged discrimination and harassment on multiple grounds including race, disability, and sex.

The Tribunal dismissed claims related to receipt of public assistance, record of offences, and breach of settlement for lack of jurisdiction.

The Tribunal also found that a 10-year delay in complaining about a missed conference opportunity was not incurred in good faith.

Ultimately, the Tribunal dismissed the application in its entirety, finding that the applicant failed to establish that any of the alleged unfair treatment or comments were related to a protected ground under the Human Rights Code.

The applicant alleged discrimination on the basis of race, colour, disability, receipt of public assistance, and record of offences after being denied membership to a psychological rehabilitation centre.

The centre denied membership because the applicant refused to consent to them speaking with his probation officer regarding his history of sexual assaults.

The Tribunal dismissed the application, finding that the denial was based on the applicant's refusal to provide consent, and that unpardoned criminal offences do not fall under the protected ground of record of offences.

The Tribunal also found no evidence of racial discrimination.

The applicant, a transgender woman, alleged that the respondents discriminated against her on the basis of sex by suspending her from a psychosocial rehabilitation centre clubhouse and subjecting her to derogatory name-calling.

The Tribunal found that the applicant was suspended due to a documented history of disruptive and inappropriate behaviour, including assaulting another individual and repeatedly pursuing a staff member, rather than her sex.

Furthermore, the Tribunal found that the alleged name-calling occurred at an unrelated drop-in centre over which the respondents had no control.

The application was dismissed.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The insurer brought a preliminary motion arguing the applicant was precluded from proceeding to arbitration for certain medical expenses because he failed to submit treatment plans as required by section 38 of the Schedule.

The arbitrator dismissed the motion, finding that the insurer failed to provide the applicant with clear and straightforward information regarding the statutory consequences of non-compliance, as required by the Supreme Court of Canada in Smith v. Co-operators.

Because the insurer did not fulfill its duty to assist the insured and explain the consequences of failing to provide the treatment plans, it could not rely on the preclusion remedy under section 50(a).

The parties, former accounting partners, entered into an arbitration agreement to resolve a dispute over the final accounting for the winding-up of their partnership.

The respondent later commenced a court action regarding the same issues, arguing the arbitration agreement was invalid due to a lack of consensus ad idem.

The motion judge agreed and refused to stay the action.

On appeal, the Court of Appeal found the arbitration agreement was clear, unambiguous, and validly executed with the assistance of counsel.

The court held that none of the exceptions in s. 7(2) of the Arbitration Act applied, and therefore a stay of the court proceeding was mandatory under s. 7(1).

The appeal was allowed and the action stayed.

The appellants appealed a trial judgment, arguing that the trial judge erred in his assessment of credibility and reliance on a contract they claimed was a fake.

The Court of Appeal found no error in the trial judge's approach, noting he thoroughly reviewed the evidence, found neither main witness reliable, and properly gave effect to the language of the agreement.

The appeal was dismissed with costs awarded to the respondent.

Following the release of reasons on October 19, 2002, the Court of Appeal received written submissions on costs.

The Court fixed the costs of the motions before the motions judge at $6,000 all inclusive, and the costs of both appeals at $6,500 all inclusive, payable to the appellants forthwith.

The appellant was injured in a motor vehicle accident.

In a prior arbitration for accident benefits, the arbitrator found the appellant was uninsured at the time of the accident.

The appellant subsequently brought an action against the tortfeasor for negligence and against his insurer for breach of contract and negligence.

The motions judge dismissed both actions on the basis of abuse of process and issue estoppel.

The Court of Appeal allowed the appeal, finding that the tort action was separate from the contractual dispute, and the negligence claim against the insurer raised different issues than those decided in the arbitration.