Richard P. Quance

The Court of Appeal for Ontario dismissed an appeal concerning the valid exercise of a lease renewal option.

The appellant argued the tenant's notice was not clear and unequivocal because it included proposals for new terms.

The court affirmed the motion judge's finding that the tenant's explicit statement of intent to renew was sufficient, as the lease anticipated ongoing negotiations for rent, and the additional proposals did not render the notice conditional.

This appeal concerned the personal liability of an individual who signed dishonoured cheques under an unregistered trade name.

The appellant, a directing mind of several corporations, argued he did not intend personal liability, believing he was signing on behalf of a corporation.

The Court of Appeal affirmed the motion judge's decision, holding that under section 131(1) of the Bills of Exchange Act, signing a bill in a trade name or assumed name incurs personal liability, especially when the name is not registered to the corporate entity.

The court emphasized the Act's purpose of ensuring certainty in negotiable instruments.

The appeal was dismissed with costs.

The plaintiff, an auto parts supplier, brought a motion for summary judgment against corporate defendants operating auto body repair facilities and an individual defendant for unpaid invoices.

The corporate defendants consented to judgment for the principal amount, leaving the issues of pre-judgment interest and costs for the court.

The court found that the credit application stipulated a 2% monthly interest rate on unpaid accounts and ordered pre-judgment interest at this rate from December 1, 2019.

The issue of costs was reserved, and the motion against the individual defendant was adjourned by consent.

This is a costs endorsement following a successful appeal.

The appellant's appeal was allowed, and costs of the appeal were awarded to the appellant.

The parties subsequently reached an agreement on the costs of the proceedings in the Superior Court, fixing them at $30,000 all inclusive, to be paid by the respondent to the appellant.

The appellant, 2484234 Ontario Inc., appealed the dismissal of its application for rectification and specific performance of a transfer agreement with the respondent, Hanley Park Developments Inc. The agreement concerned an easement over parts of the respondent's adjacent property for an access road to a proposed subdivision.

The appellant sought to rectify the agreement to include a fifth part of the property, which was essential for the access road and which the respondent knew was necessary but did not include in the formal agreement.

The application judge had dismissed the claim, finding no prior agreement on the fifth part and that the appellant had "unclean hands." The Court of Appeal allowed the appeal, finding that the application judge erred in interpreting the prior agreement, which, based on business efficacy and the duty of honest performance, implied an an obligation to include the necessary fifth part.

The Court also found the "unclean hands" finding was based on a misreading of the agreement.

Rectification was granted, and specific performance was ordered due to the uniqueness of the property.

The plaintiff moved to stay or dismiss a counterclaim brought by five entities, arguing it was unauthorized under Rule 15.02(4) of the Rules of Civil Procedure.

The court found that Rule 15.02(4) applies to counterclaims, which are defined as "proceedings" under the Rules.

Given that both the previous and current controlling parties of the five entities did not authorize the counterclaim, the court stayed the counterclaim for those five entities.

The court reconsidered its costs decision following a damages re-hearing, where both the plaintiff and defendants sought costs.

The plaintiff, Prolink Broker Network Inc., claimed partial indemnity costs, while the defendants, Rakesh (Rick) Jaitley, My Insurance Broker Corp., and My Insurance Broker Canada Corp., argued for no costs to the plaintiff and sought their own costs based on an offer to settle.

The court applied a flexible approach to reconsider its previous endorsement due to a factual error.

Ultimately, the court found that both parties had mixed success and neither achieved their desired outcome in the overall litigation.

Despite the plaintiff's limited success on liability and the defendants' expert evidence being largely accepted on damages, the court declined to award costs to either party, concluding that each should bear its own costs.

The applicant sought rectification of a parts agreement to include an additional land parcel (Part 5) and specific performance of the rectified agreement.

The respondent opposed, arguing the applicant breached the agreement and failed to meet the test for rectification.

The court dismissed the application, finding the applicant had "unclean hands" due to breaches of the agreement and failed to satisfy the requirements for unilateral mistake rectification, specifically that the prior agreement did not include Part 5 and that the respondent's actions did not amount to fraud.

The representative plaintiff, a Tim Hortons franchisee, and the defendant franchisor sought approval of a settlement agreement in two companion class actions concerning the use of an Ad Fund and the formation of a franchisee association.

The motion also sought approval of class counsel fees and litigation funding agreement amounts.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, despite one objector's concerns.

The settlement included monetary payments for marketing initiatives, legal costs, and significant non-monetary benefits such as enhanced transparency, audit rights, and freedom for franchisees to negotiate contracts.

The court also approved the requested fees for the litigation funder and class counsel, deeming them reasonable given the overall settlement value.

The defendant/moving party, TDL Group Corp., brought a motion to strike the plaintiff's/responding party's Amended Statement of Claim.

The plaintiff, 6646107 Canada Inc., alleged breach of the original Franchise Agreement, breach of a subsequent oral "Renewal Agreement," and negligent/intentional misrepresentation regarding the non-renewal of its Tim Hortons franchise.

The court granted the motion in part, striking claims related to the breach of the original Franchise Agreement due to explicit non-renewal clauses and the absence of a free-standing duty of good faith.

However, the court dismissed the motion to strike claims concerning the oral Renewal Agreement and negligent/intentional misrepresentation, finding these issues involved mixed fact and law and were not plain and obvious to fail.

The plaintiff brought a motion seeking answers to questions refused during the examination for discovery of the defendants.

The questions related to allegations that the defendants conspired to circumvent obligations under a Non-Competition Agreement.

The court applied the relevance test under Rule 31.06 and proportionality principles under Rule 29.2.03 of the Rules of Civil Procedure.

The court found the questions relevant and that the defendants had refused to provide full answers, despite offering partial undertakings.

The motion was granted, and the defendants were ordered to answer the questions and pay costs to the plaintiff.

The plaintiff, a Tim Hortons franchisee, brought motions for certification of two class actions against the franchisor, The TDL Group Corp., for the purposes of a tentative settlement.

The first action concerned the use of the Ad Fund, and the second concerned the formation of a franchisee association.

The defendant consented to certification.

The court applied the criteria under section 5 of the Class Proceedings Act, 1992, noting that the requirements need not be as rigorously applied in a settlement context.

All five certification requirements were found to be met, including disclosure of a cause of action, identifiable classes (current and former franchisees), common issues, preferability of a class proceeding, and an adequate representative plaintiff with a litigation and notice plan.

The court ordered certification of both actions as class proceedings.

This case is a re-hearing on damages following a Divisional Court decision that remitted the matter back to the trial judge for a proper valuation of the plaintiff's 25% share interest in the defendant company, My Insurance Brokerage (MIB), after a breach of contract.

The court assessed conflicting expert evidence on share valuation, utilizing both income/cash flow and market multiple methods.

The plaintiff's expert's opinion was approached with caution due to an undisclosed professional relationship and unrealistic assumptions regarding minority discount and the impact of the 2008-2009 financial crisis.

While generally preferring the defendant's expert's methodology, the court found an error in valuing MIB as a start-up and ordered an upward adjustment to the cash flow multiple.

The final fair market value of the shares was to be determined as the midpoint between the recalculated income/cash flow valuation and the market method valuation.

This costs endorsement followed two related motions where the defendants largely succeeded in striking claims under Rule 21, terminating claims against all defendants except The TDL Group.

The court awarded costs to the successful defendants, finding no reason to depart from the usual practice that the unsuccessful side pays.

Despite the plaintiffs' arguments that the hourly rates and overall costs requested were excessive, the court found them within the norm for large firm litigation given the magnitude of the claims.

The court exercised its discretion to slightly reduce the requested costs, awarding $44,000 to the defendants in the 152 Action and $40,000 to the defendants in the Walker Action, acknowledging that the defendants were not 100% successful in dismissing the actions without leave to amend.

This decision addresses a motion to strike various claims in two proposed class actions brought by Tim Hortons franchisees against the franchisor, The TDL Group Corp. (TDL), and related corporate and individual defendants.

The claims included breach of trust, fiduciary duties, oppression remedy under the Canada Business Corporations Act (CBCA) and British Columbia Business Corporations Act (BCBCA), conversion, breach of contract (including implied duty of good faith), and statutory duties under the Arthur Wishart Act (fair dealing and right of association).

The court struck out most claims against the non-TDL defendants without leave to amend, finding a lack of material facts to support them or privity of contract.

Several claims against TDL, including breach of trust, fiduciary duties, CBCA oppression, and conversion, were also struck without leave.

Claims for breach of contract (including good faith) and statutory duty of fair dealing (s. 3 Wishart Act) against TDL were struck with leave to amend for particulars.

The claim for breach of the right of association (s. 4 Wishart Act) against TDL survived.

The court deferred the issue of declaratory relief and ordered the plaintiffs to serve amended statements of claim within 30 days, failing which the pleadings would be struck in their entirety.

Following a successful defence in a wrongful dismissal trial, the defendant sought costs of approximately $750,000.

The plaintiff argued for $500,000.

The court considered the factors under Rule 57.01, noting that while the electronic trial was efficient, both sides engaged in overkill and over-representation.

The court reduced the defendant's claimed fees slightly and awarded costs of $725,651.30 on a partial indemnity basis.

The plaintiff, a former Senior Vice-President and Chief Financial Officer of Royal Group, Inc., sued for wrongful dismissal, claiming approximately $6.6 million in damages.

The defendant employer argued cause for dismissal based on the plaintiff's involvement in two instances of serious misconduct: the "Vaughan West land flip" and the misappropriation of a "Premdor warrant." Both involved the plaintiff's participation in schemes where senior officers, including himself, made secret profits at the corporation's expense and failed to disclose these conflicts of interest to the independent board of directors.

The court found that the plaintiff, as a fiduciary and senior employee, breached his duties of loyalty, honesty, candour, and fidelity by facilitating the usurpation of corporate opportunities, taking corporate funds without proper authority, and actively participating in deceptive practices, including back-dating documents for tax purposes.

The court dismissed the plaintiff's action, concluding that his conduct constituted just cause for summary dismissal, emphasizing the strictness of fiduciary duties in public corporations.

The Applicant, FIP Munroe Inc., assigned its rights and obligations under an Agreement of Purchase and Sale (APS) to the Respondent, CC Capital Inc. A few days before closing, the Vendor claimed $100,000.00, which the Respondent subsequently withheld from the Assignment price payable to the Applicant.

The application sought a determination on whether the Respondent was entitled to deduct this $100,000.00 allowance.

The court, applying principles of contractual interpretation, found that the allowance was not an "adjustment" as defined in the APS and that the Assignment Agreement did not provide for such an adjustment based on Lease obligations.

The court concluded that withholding the amount would result in a windfall for the Respondent, as the allowance was an advance to be repaid by the Tenant through increased rent.

The application was granted, ruling that the Respondent was not entitled to withhold the $100,000.00.

This costs endorsement follows a hybrid trial where the applicants were largely successful against several respondents concerning an invalid power of sale, but unsuccessful against Ginkgo Mortgage Investment Corporation.

The court awarded partial indemnity costs to the applicants against the unsuccessful respondents, with a several order for payment.

The court also fixed partial indemnity costs payable by the applicants to Ginkgo, declining to issue a Sanderson order after applying the two-step test.

Following the dismissal of an application to set aside an international arbitral award, the court determined the appropriate scale of costs.

The court initially considered awarding substantial indemnity costs to deter baseless challenges to an arbitrator's impartiality.

However, acknowledging that the applicant raised a novel point of law regarding an arbitrator's conflict of interest involving past firms, the court gave the applicant the benefit of the doubt.

Costs were awarded to the respondents on a partial indemnity basis, fixed at $55,000.