William Chalmers

The plaintiffs, an elevator maintenance company and its parent corporation, brought an urgent ex parte motion for a Mareva injunction and other injunctions restraining a former president and CEO, his wife, and their competing corporation from using the plaintiffs' credit cards or funds, soliciting customers or employees, and from making unauthorized changes to corporate governance documents.

The court found extraordinary urgency and a strong prima facie case of breach of fiduciary duty, conversion of corporate funds, misappropriation of corporate opportunity, conspiracy, and breach of a unanimous shareholder agreement.

Interim injunctions were granted restraining the defendants from using corporate funds and soliciting customers and employees, and restraining the individual defendant from altering corporate documents or breaching his fiduciary duties.

The Mareva injunction was refused on the basis that there was insufficient evidence of a serious risk the defendant would remove or dissipate assets before judgment.

Following the dismissal of the plaintiffs' summary judgment motion and the action regarding a real estate transaction, the successful defendant sought costs of $57,953.69 on a substantial indemnity basis, relying on an offer to settle.

The court reviewed the principles of costs, including proportionality and the rules regarding offers to settle.

Finding no reprehensible conduct by the plaintiffs to justify elevated costs, the court fixed the costs payable to the defendant at $30,000 inclusive of HST and disbursements.

The Purchasers (Plaintiffs) moved for summary judgment seeking damages from the Vendor (Defendant) after a real estate transaction failed to close on time due to a 9-minute delay in fund transfer, leading the Vendor to terminate the Agreement of Purchase and Sale (APS) based on a "time is of the essence" clause.

The Vendor subsequently offered to "revive" the APS for an additional $113,000, which the Purchasers paid.

The Purchasers argued the Vendor acted in bad faith, imposed an improper penalty, and that the "revived" APS was entered into under economic duress.

The court found the "time is of the essence" clause was operative and breached by the Purchasers, entitling the Vendor to terminate.

It further ruled that the "revival fee" was part of a new, freely negotiated contract, not an unenforceable penalty, and that the Purchasers failed to establish economic duress.

Consequently, the Purchasers' motion for summary judgment was dismissed, and summary judgment was granted to the Vendor, dismissing the action.

The plaintiffs sought an adjournment of a fixed trial date in two related actions alleging solicitor negligence and breach of fiduciary duty against the defendant lawyer.

The request was based on a recent change of defence counsel due to an "unavoidable conflict of interest" and the plaintiffs' expert's inability to produce a report in time.

Despite both counsel agreeing to the adjournment, the court, noting the parties' advanced age and previous judicial directives for expeditious resolution, declined the request, emphasizing that adjournments of fixed trial dates are granted only in extenuating circumstances and that the delay was not sufficiently justified.

This endorsement addresses the issue of costs following the dismissal of both the plaintiffs' claim and the defendants' counterclaim in the underlying action (2022 ONSC 1235).

The court determined the allocation of 'costs thrown away' from a mistrial, finding the plaintiffs responsible due to their counsel's mistake regarding land descriptions, and awarded these costs on a full indemnity basis.

For the costs of the action, the court applied a partial indemnity scale, rejecting the defendants' claim for substantial indemnity due to the absence of reprehensible conduct by the plaintiffs.

The court also considered the reasonableness of counsel's rates and time spent, applying a reduction to the defendants' claimed costs for overall reasonableness, including a deduction for a prior removal motion.

The final award was $462,422.01 in favour of the defendants.

This case addresses the interpretation of "Builder's Risk" insurance policies versus Commercial General Liability (CGL) policies in the context of construction negligence.

A builder's negligent roof repair caused water damage to a school gymnasium floor and project delays.

The court examined whether the Builder's Risk policy, intended to cover "property in course of construction" extended to the entire project site or only the specific area under renovation.

Resolving conflicting jurisprudence, the court adopted the reasoning that Builder's Risk insurance covers only the property actively under construction, not the entire structure.

Consequently, the Builder's Risk insurer (Northbridge) was found not liable for the gym floor damage, while the CGL insurer (Intact) was found liable.

The plaintiff, Daland Developments Ltd., brought a motion to compel re-attendance and answer questions during cross-examination on affidavits filed by the defendants (2075568 Ontario Inc., Idacris Investments Inc., and 163157 Ontario Inc.) in support of their Rule 21 motion to strike the action.

The defendants' counsel refused questions on grounds of relevance, arguing they related to the merits or events preceding a prior Vesting Order.

The court found it inappropriate and unfair for a party to file affidavits and then assert that their sworn testimony is not open to challenge, especially when the circumstances surrounding a previous order might impact its reliability.

Citing established case law, the court ruled that cross-examination on an affidavit is not confined to its four corners but can cover any matters relevant to the issues for which the affidavit was filed, including the merits, pre-Order events, and the defendants' legal position.

The plaintiff's motion was granted, requiring the witnesses to re-attend and answer all relevant questions.

The appellants appealed a motion judge's decision that the insurer had no duty to defend based on exclusions in the Commercial General Liability Policy.

The appellants argued that the care, custody, or control exclusion did not apply because some damage may have occurred after the vines left their care.

The Court of Appeal upheld the motion judge's decision, finding that the pleadings alleged the defect was caused by the appellants' negligent treatment while the vines were in their care, custody, or control, triggering the exclusion.

Additionally, the court found that an alternative exclusion for damage resulting from fungi or spores also applied.

The plaintiffs, a grapevine grower and a nursery, sought a declaration that their insurer owed them a duty to defend an underlying action in British Columbia regarding allegedly defective vines.

The insurer denied coverage based on the 'Your Product', 'care, custody or control', and 'fungus' exclusions in the Commercial General Liability policy.

The court held that the pleadings in the underlying action clearly triggered the exclusions, relieving the insurer of any duty to defend.

The court also addressed the plaintiffs' request to appoint independent counsel, noting that while no duty to defend existed, specific protective measures would have been ordered to prevent conflicts of interest had the duty been found.

The plaintiff brought an urgent motion for injunctive relief to require the defendants to reconnect electricity to a cottage on the plaintiff's property.

The parties reached a consent order at a case conference, leaving the issue of costs to be determined by the court.

The plaintiff sought costs on a substantial indemnity basis of $39,372.40, while the defendants argued for no costs or a maximum of $5,645.13.

The court found the motion was reasonably brought but the matter was not complicated and the costs sought were excessive.

Costs were fixed at $9,995.00 all-inclusive payable by the defendants.

The plaintiff abandoned a motion for directions regarding garnishment and priority issues.

The non-party, Fraser Mason, sought costs of $63,644.52 on a partial indemnity scale for the abandoned motion.

The court found the claimed amount excessive, noting that portions of the costs related to other aspects of the litigation and that both parties had engaged in aggressive litigation tactics.

The court fixed costs at $10,000 payable by the plaintiff to Fraser Mason, but stayed enforcement until Fraser Mason paid outstanding costs awards previously ordered against him.

A proposed class action alleged that a charitable tax receipt program associated with private Christian school tuition resulted in participants being reassessed and penalized after the Canada Revenue Agency disallowed the tax credits.

The representative plaintiff moved on consent for certification for settlement purposes, approval of a settlement fund of up to $1.5 million, approval of class counsel’s contingency fee, and an honorarium.

The court reviewed the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 and concluded that the criteria were met in the settlement context.

Applying established factors governing settlement approval, the court held the agreement was fair, reasonable, and in the best interests of the class.

The court also approved the requested contingency fee, disbursements, and the representative plaintiff honorarium.

Multiple insurers disputed their duty to defend an insured chemical delivery company arising from two actions following a chlorine gas release at a public pool.

The insured and one insurer sought declarations compelling other insurers to contribute to defence costs.

Applying the pleadings rule from Monenco and related appellate authorities, the court held that the possibility of coverage under the policies triggered the duty to defend and that extrinsic evidence could not be used to prematurely determine factual causation issues.

The court also rejected an argument that defence cost coverage depended on insurer consent.

Principles of equitable contribution required all insurers with potential coverage to share defence costs.

The plaintiff hospital sued the general contractor (Compass) and subcontractor (Black Creek) for water damage caused during a kitchen renovation.

Black Creek brought a motion under Rule 21 to determine whether Compass's cross-claim against it for contribution and indemnity was barred by the 'covenant to insure' in the general contract.

Black Creek argued the tort immunity principle barred the cross-claim for damage to the entire hospital.

Compass argued the immunity only applied to the 'work' (the kitchen project) and not the adjacent property (the rest of the hospital).

The court held that the covenant to insure and the builder's risk policy only covered the project site (the kitchen), not the entire hospital.

Therefore, Compass's cross-claim against Black Creek for damages outside the kitchen was not barred.

In this costs endorsement following a wrongful dismissal trial, the plaintiff recovered modest damages well within the Small Claims Court monetary jurisdiction but sought substantial partial indemnity costs in the Superior Court.

The court held it was reasonable to commence the action in the Superior Court because the plaintiff had a bona fide fixed-term contract claim that, if successful, could have yielded damages of approximately $175,000.

The court rejected the defendant's submissions that the plaintiff should receive no costs, or should pay the defendant's costs, based on abandoned bad-faith allegations and the quantum recovered.

Partial indemnity costs of the trial and costs of the earlier security for costs motion were awarded to the plaintiff.

The plaintiff brought a wrongful dismissal action alleging he had a guaranteed five‑year fixed‑term employment contract and was dismissed after only eight months.

The employer denied any fixed‑term agreement and argued the employee resigned.

The court found that the parties formed an oral employment contract confirmed by email that did not include a five‑year guarantee, and that later documents referencing such a term were created primarily to assist the employee in obtaining mortgage financing and were unsupported by fresh consideration.

The court accepted the employee’s account that he had been dismissed during a heated confrontation rather than having resigned.

Damages were therefore limited to reasonable notice rather than the balance of a fixed term, and the court awarded two months’ notice damages.

In an appeal concerning underinsured motorist coverage under the OPCF 44R, the insurer argued that the limitation period began when the insured knew or ought to have known that the tort claim exceeded the tortfeasor's policy limits.

The court held that the discoverability rule in s. 5 of the Limitations Act, 2002 governs, not the discoverability wording in s. 17 of the endorsement.

Applying the reasoning in Markel, the court held that a legally enforceable indemnity claim is discovered only once a demand for indemnification has been made and default has occurred.

The limitation period therefore begins to run the day after the demand for indemnity is made.

The appeal was dismissed, subject to a minor amendment to the order.

The appellant failed to appear on the scheduled appeal after its counsel was removed from the record for lack of instructions.

The court held that Rule 15.04 did not remove its jurisdiction under the Courts of Justice Act to deal with a properly scheduled appeal, and that the rule merely provided additional authority to dismiss an appeal before the hearing date for procedural failure.

Given the appellant's notice of the hearing date and of counsel's intention to be removed, and its failure either to attend or seek an adjournment, the court treated the matter as an abandoned appeal.

The appeal was dismissed with partial indemnity costs of $8,000 all inclusive to the respondents.

The applicant appealed a decision by Tarion Warranty Corporation denying her claim for the cost of installing a gas fireplace.

Prior to the hearing, the applicant sold her home and entered into a collateral agreement with the new owner to maintain her claim against Tarion.

Tarion brought a motion to dismiss the appeal, arguing that the statutory warranty runs with the home and the applicant lost standing upon the sale.

The Tribunal agreed, finding that the collateral agreement was a nullity as it offended s. 13(6) of the Ontario New Home Warranties Plan Act, which prevents contracting out of the statutory warranties.

The appeal was dismissed.

The defendants sought leave to appeal a decision that vacated an order for security for costs against two plaintiffs and reduced the quantum against a third in a solicitor's negligence action.

The court refused leave to appeal regarding the test of impecuniosity, as the issue of the plaintiffs' ability to borrow funds was not raised below.

However, the court granted leave to appeal regarding the quantification of security for costs, the reliance on inadequate evidence of financial needs, and the application of the victim's Bill of Rights, but only in respect of the third plaintiff.