Richard P. Quance

The applicant sought to set aside an arbitral award, arguing that the arbitrator's failure to conduct a conflict search with his former law firm, which had acted for the underwriters of the project and a company whose CFO was a witness, created a reasonable apprehension of bias.

The court found it had jurisdiction to hear the challenge under Article 34 of the Model Law.

However, the court dismissed the application, holding that the connection between the arbitrator and his former firm's clients was too remote to establish a reasonable apprehension of bias, and that an arbitrator who has left a law firm does not have a duty to investigate potential conflicts with that former firm.

Following written reasons granting summary judgment to the plaintiff and dismissing the defendant’s counterclaim, the court determined the issue of costs.

The court reviewed the discretion to award costs under s.131(1) of the Courts of Justice Act and the factors set out in Rule 57.01(1) of the Rules of Civil Procedure.

Applying the principle that a successful party is presumptively entitled to costs and that the award should be fair and reasonable rather than reflective of full indemnity, the court assessed the complexity of the matter, the result achieved, and the experience of counsel.

An all‑inclusive costs award was fixed against the defendant.

The plaintiff brought a motion for summary judgment seeking reimbursement of taxes, utilities, and insurance paid during its tenancy and dismissal of the defendant’s counterclaim.

The dispute concerned whether an overholding agreement modifying a commercial lease was valid and enforceable despite an entire agreement clause requiring written modifications signed by both parties.

The court held the evidentiary record permitted summary judgment and that the parties’ objective conduct demonstrated intention to be bound by the overholding agreement.

The defendant had waived strict compliance with the lease’s formal modification requirements through its conduct and was estopped from relying on the entire agreement clause.

The plaintiff validly terminated the tenancy under the overholding agreement and was entitled to reimbursement.

The defendants moved under rule 21.01(1)(b) of the Rules of Civil Procedure to strike a claim alleging failure to give reasonable notice of non‑renewal of a long‑standing contractual relationship.

The plaintiff had been a member of the defendants’ partner network for approximately twenty years under an agreement renewable annually at the defendants’ sole discretion.

The plaintiff alleged that the defendants exercised their discretionary renewal power unreasonably by refusing renewal without any notice.

The court held it was not plain and obvious that the claim disclosed no reasonable cause of action.

The organizing principle of good faith in contractual performance, recognized in Bhasin v. Hrynew, did not foreclose the possibility that discretionary renewal powers might need to be exercised reasonably in certain circumstances.

The plaintiff mortgagee brought a motion seeking payment out of court of funds deposited by the defendant after redeeming a replacement vendor take‑back mortgage in foreclosure proceedings.

The defendants asserted an equitable set‑off defence alleging negligent fill operations, excess fill, and contamination affecting the property.

The court found the allegations unsupported by evidence and noted the mortgage required payment without deduction or abatement.

The defendants failed to particularize or substantiate the set‑off claim and did not demonstrate prejudice warranting a stay of payment.

The court ordered the funds paid out to the plaintiff while leaving the equitable set‑off issue to be determined separately.

Following earlier reasons finding a binding agreement and liability for breach, the court addressed the remaining issue of damages concerning the valuation of shares under a draft partnership agreement.

The dispute centred on the meaning of “fair market value” and whether “earnings” in the contractual formula referred to gross commissions or net earnings after expenses.

The court held that, absent an express contractual definition, the traditional meaning of fair market value—an arm’s length price in the open market—should apply.

Applying principles of implied terms and contractual interpretation, the court concluded that earnings should be interpreted as net earnings rather than gross commissions to give business efficacy to the agreement.

Damages were therefore calculated based on net earnings.

In a Commercial List case conference concerning potential refusals motions, the court addressed whether interlocutory motions to compel answers to refused discovery questions should be scheduled.

The case management judge emphasized the court’s inherent jurisdiction and the proportionality principles in the Rules of Civil Procedure to control litigation and allocate scarce judicial resources.

The court held that a Commercial List case management judge may decline to schedule refusals motions and instead direct that, if a refusal later proves improper at trial, an adverse inference may be drawn against the refusing party.

Such directions may bind the parties at trial unless the trial judge determines otherwise to prevent injustice.

In a complex commercial fraud and negligence action involving multiple defendants, the court issued a case conference memorandum addressing the status of discovery, mediation, expert reports, and pre‑trial procedure.

The court directed timelines for completion of undertakings and remaining examinations for discovery.

It encouraged the parties to consider avoiding refusals motions due to limited judicial resources and proposed an alternative approach allowing trial judges to address refused questions if necessary.

The parties were instructed to advise the court whether they would forego refusals motions or proceed with them.

The court also directed the parties to contact a judge to schedule a lengthy trial and to return for a further case conference if mediation failed.

Commercial dispute arising from an insurance brokerage joining a broker network.

The plaintiff alleged that an enforceable agreement existed under which it would receive a 25% ownership interest in the brokerage and 7.5% of commissions in exchange for services and access to insurance markets and systems.

The defendants argued that no binding agreement was formed because formal documents were never signed.

The court held that the parties reached agreement on essential terms and manifested an intention to be bound through conduct, including issuance of shares, regulatory arrangements, and operational participation in the network.

The defendants repudiated the agreement, and the plaintiff was entitled to damages for breach of contract and additional recovery on a quantum meruit basis for a post-repudiation period.

In a Commercial List case conference, the court addressed procedural issues arising during case management of complex banking litigation.

A related action commenced by another party against the plaintiff bank had not been disclosed at an earlier case conference, prompting the court to require an explanation and direct counsel to attend a further appointment to address potential motions and case coordination.

The court also addressed discovery disputes, including requests to examine additional representatives and disagreements about whether discovery rights had been exhausted.

Timetables were set for written motion materials regarding discovery disputes, interrogatories, expert reports, and a forensic accounting report.

The court emphasized the importance of transparency in case management and minimizing interlocutory motions in complex litigation.

Following reasons granting an interlocutory injunction in a dispute involving alleged breach of fiduciary duties and misuse of confidential information, the court addressed disagreements over the form of the order and costs.

The plaintiff sought additional wording expanding the scope of entities and confidential technology referenced in the injunction, which the court refused because the relief had not been sought in the motion record or oral submissions.

The court required that the original wording of the injunction regarding preservation of confidential information be maintained.

A stay of the data‑imaging paragraph was granted for two defendants pending determination of their motion for leave to appeal to the Divisional Court.

Costs of the interlocutory injunction motion were ordered to be in the cause.

The plaintiff sought an interlocutory injunction against former key employees and contractors who started a competing business.

The plaintiff alleged breach of fiduciary duty and breach of confidence.

The court found that the plaintiff established a strong prima facie case that the defendants breached their fiduciary duties and duties of confidence by using the plaintiff's confidential information and business opportunities.

The court granted the interlocutory injunction for six months, finding that the plaintiff would suffer irreparable harm and the balance of convenience favoured the plaintiff.

The plaintiff brought a motion relating to outstanding undertakings and refusals arising from extensive examinations for discovery of a defendant.

The court reviewed numerous undertakings and determined that several had been satisfactorily answered, while others required reproduction of documents in an organized format to properly address the undertakings.

The court also ordered disclosure of certain financial documents relevant to claims for accounting and disgorgement.

However, the court declined to compel any further examinations, finding that five days of discovery and thousands of questions already rendered the process disproportionate under the Rules of Civil Procedure.

Following competing motions for security for costs, the court ordered the plaintiff to post security and dismissed the plaintiff’s own motion for security.

The defendants sought costs of $18,618.92 while the plaintiff argued the amount should be reduced due to duplication of effort after the defendants changed counsel and allegedly excessive preparation and travel charges.

Applying the discretionary principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality, fairness, and reasonableness in fixing costs.

The court found some duplication attributable to the change of counsel and considered the limited scope of the half‑day motion.

Costs were fixed at $14,000 all inclusive payable by the plaintiff.