Stephen M. Turk

The appellant appealed a Small Claims Court judgment awarding the respondent contractor $10,000 following termination of a construction management contract during the pre-construction phase.

The appellant argued that he was not personally liable because he acted as an agent for the property owner and that the contractual termination payment constituted an unenforceable penalty clause.

The court held that the appellant signed the agreement as “owner” without written designation of agency and failed to prove he acted solely as an agent without personal liability.

The court further held that the termination payment was not unconscionable or extravagant and did not constitute an unenforceable penalty clause in light of modern jurisprudence favouring freedom of contract.

The appeal was dismissed.

The plaintiff sought return of a commercial lease deposit after an agreement to lease premises for a spa/fitness centre failed because the proposed use, which included massage services, was not permitted under existing zoning.

The lease contained a condition requiring the tenant to obtain the necessary licence within four months.

The court held that the intended use included massage services and therefore required a holistic centre licence, which could not be obtained because zoning did not permit that use at the relevant time.

The landlord had warranted zoning compliance and was therefore in breach when the agreement was executed.

The court rejected arguments that the tenant misrepresented the intended use, waived the condition, or was estopped from relying on it, and ordered return of the deposit.

Following a three-day trial determining the shareholders of a corporation, the successful respondent sought costs on a substantial indemnity basis.

The applicants argued costs should be in the cause or limited due to a settlement offer and alleged excessive time claimed by counsel.

The court held that substantial indemnity costs were not justified because the applicants’ conduct was not reprehensible and the settlement offer did not comply with Rule 49.10 nor yield a result as favourable as the offer.

Applying the reasonableness factors under Rule 57(1), the court reduced the claimed hours and fixed partial indemnity costs at $30,000 inclusive of disbursements and taxes.

The plaintiff moved for summary judgment against the defendant for $150,000 USD based on a promissory note, and sought dismissal of the defendant's counterclaim.

The defendant argued the funds were an investment in a joint venture, not a simple loan, and counterclaimed for damages related to the joint venture.

The court found genuine issues requiring a trial, including conflicting evidence about the nature of the agreement, the purpose of the funds, and the involvement of other parties.

The motion for summary judgment was dismissed.

In a dispute over the share ownership of a corporation holding a 25% interest in a real estate development entity, the responding party sought production of opposing counsel’s file relating to pre-litigation letters that described the ownership structure.

The requesting party argued that the responding party waived solicitor‑client privilege by later asserting that statements in those letters were a mistake.

The court held that waiver did not arise because the impugned statements were made in correspondence prior to the commencement of the application and did not represent a withdrawal of a position taken in pleadings.

As a result, the responding party was using privilege as a shield rather than a sword, and solicitor‑client privilege remained intact.

A costs endorsement following an appeal in which the respondents were successful.

The successful parties sought costs on a substantial indemnity scale, while the appellant argued that a lower all-inclusive amount was appropriate.

After reviewing the written submissions of both parties, the court declined to award substantial indemnity costs.

Costs were instead fixed on a partial indemnity scale in the amount of $10,301.71, payable within 30 days.

The appellant appealed a master's order requiring payment of outstanding costs as a condition of avoiding the striking of defences.

The appellant argued that a settlement payment by a co-defendant satisfied joint and several costs awards previously ordered against multiple defendants.

The court held the appeal was properly characterized as relating to costs and therefore required leave under the Courts of Justice Act.

Leave was refused, and the court agreed with the master's reasoning that settlement funds paid before a later costs award could not satisfy that subsequent order.

The appeal was dismissed.