Sean S. Carter

This decision addresses the costs of a dismissed motion brought by the plaintiff, United Mennonite Home for the Aged, to amend its pleadings to name Dan Gordon in his personal capacity.

The defendant, Dan Gordon, was entirely successful in opposing the motion and sought partial indemnity costs.

The court awarded partial indemnity costs to the defendant, reducing the claimed amount by $1,000 due to the defendant's conduct unnecessarily lengthening the proceeding.

The court affirmed that success is a presumptive factor in costs awards and that a charitable organization's limited ability to pay is irrelevant when they initiated the motion.

The plaintiff, Suzanne Seepersaud-Singh, brought an action against Pet Social Inc. and its individual directors for unpaid wages, overtime, and vacation pay, claiming she was an employee or, alternatively, had a constructive trust interest as an owner.

She also sought aggravated and punitive damages.

The court found the plaintiff was an employee and manager of Pet Social Inc. from October 2011 to November 2015 and was entitled to unpaid wages, including vacation pay and overtime.

However, the court dismissed her claims of ownership, unjust enrichment (as it was an alternative to unpaid wages), and her request to pierce the corporate veil to hold the directors personally liable, finding no fraud or improper purpose akin to fraud.

Claims for aggravated and punitive damages were also dismissed as she was not terminated in the usual sense.

The applicants, former members of the respondent church, sought to declare the termination of their membership null and void, arguing the church failed to follow its by-laws and denied them natural justice by not holding an oral hearing.

The court found that the church's decision-making body was properly constituted and had sufficiently investigated the applicants' disruptive conduct.

The court held that natural justice in this context did not require an oral hearing, and the applicants were given an adequate opportunity to respond to the case against them.

The application was dismissed with costs awarded to the respondent.

This case involves two consolidated applications concerning the estate of Veronica Bishop.

Carolyn Mae Reeves sought interpretation of the will regarding executor appointments and asset vesting, and an accounting from Anne Marie Veronica Inglis, a de facto executor.

Margaret Bishop, the deceased's daughter, sought dependant's relief, an accounting, and the removal of Anne Marie as executor.

The court determined that Anne Marie and Carolyn are the current executors.

It clarified that non-residence assets vested at the deceased's death, while residence proceeds vested upon sale.

The court ordered Anne Marie to provide a formal accounting.

Margaret was found to be a dependant and awarded $725,000 from her trust, inclusive of her share of the residue and dependant's support, subject to Anne Marie's proven expenses.

The decision on Anne Marie's removal as executor was adjourned pending the accounting.

The applicant, a not-for-profit corporation, sought declarations validating the election of its board of directors and the subsequent removal of two former directors.

The respondent former directors challenged their removal, arguing that the board's temporary retirement at the annual general meeting left the corporation without members to re-elect them, and that they were denied procedural fairness.

The court rejected the respondents' literal interpretation of the by-laws to avoid commercial absurdity, finding the board was properly elected.

The court also held that the respondents received adequate notice and were not denied natural justice.

The applicant's application was granted.

The plaintiff brought a motion to enforce a settlement agreement reached with LawPRO, the professional liability insurer for the self-represented defendant lawyer.

The defendant objected to the settlement, arguing he was entitled to costs for defending the action.

The court found that the LawPRO insurance policy clearly provided the insurer with the contractual right to settle the claim without the insured's consent.

The plaintiff's motion to enforce the settlement was granted, and the defendant's motion to dismiss the action with costs was dismissed.

Genstar Development Partnership appealed a Superior Court decision dismissing its application for specific performance to enforce a repurchase option contained in an Agreement of Purchase and Sale dated August 21, 1998, between Imasco Enterprises Inc. and the Roman Catholic Episcopal Corporation of the Diocese of Hamilton.

The repurchase option allowed the vendor to repurchase property if not developed as a church within 10 years.

The application judge found that Genstar had not established it was a successor to Imasco or an equitable assignee of the repurchase option, and that Genstar's tenders were deficient.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error of fact and upholding the application judge's discretionary decisions regarding the admission of supplementary evidence and conversion to an action.

The applicant, Genstar Development Partnership, sought to repurchase a property from the respondent, The Roman Catholic Episcopal Corporation of the Diocese of Hamilton, based on a right defined in an Agreement of Purchase and Sale.

Genstar claimed to be a successor or equitable assignee of the original vendor (Imasco) and sought specific performance.

The court dismissed the application, finding that Genstar failed to prove its status as a successor due to an incomplete evidentiary record.

As an assignee, Genstar failed to provide the statutory notice required by the Conveyancing and Law of Property Act.

Furthermore, the court found no anticipatory breach by the respondent and determined that Genstar's tenders were deficient due to an incorrect purchase price.

The defendants brought a motion to strike paragraph 7 of the plaintiffs' Fresh as Amended Statement of Claim, arguing it improperly pleaded evidence and admissions contrary to Rules 25.06 and 25.11 of the Rules of Civil Procedure.

The Master dismissed the motion, finding that while the paragraph contained elements of evidence, it was material to the overall allegations of negligence, breach of contract, and bad faith, and served as necessary particularization, especially given the allegations of bad faith.

The Master emphasized that the mere inclusion of evidence in a single paragraph of a five-page pleading does not automatically constitute an abuse of process or warrant intervention, particularly when no prejudice to the defendants is demonstrated.

The decision also highlighted the importance of proportionality in litigation, noting that the motion would not materially advance the dispute towards its final resolution.

Costs were awarded to the plaintiffs.