S. Campbell

Following the granting of the plaintiff's motion for an injunction, the parties reached an agreement on costs.

The court awarded costs to the plaintiff fixed at $40,000 inclusive of fees, disbursements, and HST, on consent.

The plaintiff real estate law firm sought an interlocutory injunction to prevent the defendants from terminating its access to 'Conveyancer', a mission-critical software platform.

The defendants had terminated access after learning the plaintiff was developing a competing software product.

Applying the RJR MacDonald test, the court found a serious issue to be tried regarding a prior commitment not to terminate and good faith dealings.

The court also found the plaintiff would suffer irreparable harm from the inability to close transactions, and the balance of convenience favoured the plaintiff.

The injunction was granted until the plaintiff transitioned to its new software or December 31, 2021.

The applicant sought to set aside or vary a separation agreement executed in 2006, along with claims for spousal support and equalization.

The court determined the parties separated on February 28, 2006 and found no duress, non‑disclosure, or inequality of bargaining power in the formation of the agreement.

However, both parties mistakenly believed the husband’s OMERS pension had no divisible value at separation, resulting in a significant imbalance contrary to the statutory equalization scheme under the Family Law Act.

Applying s. 56(4) and the principles from LeVan and Rick v. Brandsema, the court held the agreement was premised on a fundamental mutual mistake and partially set it aside.

The husband was ordered to transfer $80,126.75 from his pension to effect equalization with prejudgment interest, while spousal support was ordered at a nominal amount due to the applicant’s lack of present need.