Ronald B. Moldaver

The applicants and respondent Kumer were shareholders in 1751060 Ontario Inc. (175), which held a 25% interest in an apartment building.

The applicants transferred their shares to Kumer to facilitate his purchase of the remaining 75% interest from other owners, based on a Memorandum of Understanding (MOU) that guaranteed their continued shareholder draws and Kumer's best efforts to purchase their shares at fair value.

After Kumer acquired the 75% interest, he ceased paying dividends to the applicants and later asserted they were not shareholders.

The applicants brought an oppression application.

The court found Kumer's actions constituted oppressive conduct by unfairly disregarding the applicants' interests.

The court ordered Kumer to purchase the applicants' shares at fair value, declining to apply a minority discount, and ordered 175 to pay outstanding dividends.

The plaintiff brought a motion seeking an order referring a construction lien action to a master for trial under s. 58(1)(a) of the Construction Lien Act.

The action involved a multi‑million dollar lien claim for construction services and a counterclaim alleging delay damages, breach of contract, and damages for registering a grossly excessive lien.

The defendant argued that a referral required evidence of consent or complexity under Rule 54.02 of the Rules of Civil Procedure and that the issues were too complex for a master.

The court held that the statute grants broad discretion to refer construction lien actions to a master and that the historical practice and statutory objectives favour such referrals.

Finding no reason why the objectives of the Act would not be served, the court granted the motion.

Following the dismissal of an appeal from a decision of a Master, the court addressed the issue of costs.

The respondents sought $20,540.16 on a partial indemnity basis, while the appellant argued that $7,500 inclusive of fees, taxes, and disbursements would be reasonable.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court considered the importance of the issues, the potential financial stakes, the complexity of the appeal, and the reasonable expectations of the parties.

Although the court found that some of the respondents’ docketed time appeared excessive, it accepted that substantial preparation was justified given the stakes and the commercial context.

The court fixed costs at $16,000 inclusive of HST and disbursements as fair and reasonable in the circumstances.

The defendant moved to set aside a noting in default and a default judgment arising from a claim for non‑payment of a mortgage debt.

The court applied the established test requiring promptness, a plausible explanation for the default, and an arguable defence on the merits.

The defendant asserted that health issues prevented awareness of the statement of claim and demonstrated an arguable defence through a related action alleging misrepresentations concerning the subject property, supporting a claim of equitable setoff.

The court held that the interests of justice favoured setting aside the default judgment.

The order was set aside on the condition that the defendant pay $250,000 into court and deliver a statement of defence.

Dispute arising after the sale of a jointly owned apartment building pursuant to a partition order.

The applicant purchased the property from the respondent co-owners and the parties disagreed over responsibility for the real estate commission and the fees of an independent lawyer appointed to oversee the sale process.

The court held that the agreement of purchase and sale made the respondent vendors solely responsible for the real estate commission, despite earlier sale conditions contemplating shared responsibility.

However, the court found the applicant remained obligated to pay its 25% share of the independent lawyer’s post‑agreement fees because the lawyer had been appointed to act impartially for the benefit of all partners.

An order was made directing payment of the applicant’s share of those fees from escrow funds.

The defendant brought a motion under the Rules of Civil Procedure seeking an order requiring the plaintiff to answer certain undertakings and refused questions arising from examinations for discovery.

The court applied the relevance test under Rule 31.06(1) and reviewed multiple refused questions to determine whether they related to matters in issue, particularly the ownership of coins held in a safety deposit box.

Most questions were found to be irrelevant or speculative and did not need to be answered, though one question relating to an alleged event in Israel was ordered answered.

The court also addressed alleged improper interruptions by plaintiff’s counsel during discovery and directed counsel to conduct future examinations consistently with established principles governing discovery conduct.

Costs of $1,000 were awarded to the defendant.

Following a motion to strike portions of a statement of defence under Rule 25.11 of the Rules of Civil Procedure, the court determined the appropriate costs award.

The moving party had been largely successful, obtaining an order striking three of four impugned paragraphs.

Although the moving party sought partial indemnity costs exceeding $7,000, the court held the requested amount was disproportionate given the limited complexity and narrow scope of the motion.

Applying the principles under s.131 of the Courts of Justice Act and Rule 57, the court fixed costs at a reduced amount to reflect both proportionality and the moving party’s partial success.

The plaintiff brought a motion under Rule 25.11 of the Rules of Civil Procedure seeking to strike several paragraphs from a defendant’s statement of defence.

The impugned pleadings alleged that the action was malicious and sought elevated or non‑party costs against the plaintiff’s officers and directors.

The court held that allegations regarding a plaintiff’s motive for commencing litigation do not constitute a defence and that pleadings directed solely to potential costs consequences are improper.

The court struck the impugned paragraphs that related to improper motive and potential non‑party costs, while permitting a paragraph requesting dismissal of the action with full indemnity costs to remain as a general costs request.

Leave to amend was refused because the defects related to improper pleading rather than drafting deficiencies.