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 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.

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.