William D. Dunlop

The plaintiffs brought a motion to compel the defendant to attend examinations for discovery, and the defendants brought a motion for security for costs against the plaintiffs, arguing they were undischarged bankrupts and nominal plaintiffs.

The court dismissed the motion for security for costs, finding that the individual plaintiff was not a nominal plaintiff and that it would not be just to order security given the plaintiffs' strong case on the merits that their financial ruin was caused by the defendants' actions.

The court granted the motion to compel discovery, ordering the defendant to attend by video in short increments to accommodate his health issues.

The plaintiffs brought a motion to enforce a settlement agreement, alleging the defendants failed to satisfactorily complete earth works and grading on their property as required by the minutes of settlement.

The parties relied on conflicting unsworn engineering reports regarding the adequacy of a buffer zone, berms, and general conformance with the grading plan.

The court found it could not resolve the factual disputes on the written record alone.

The court withheld its final order for 45 days to allow the parties to make submissions on holding a mini-trial or ordering the experts to meet and confer under the Rules of Civil Procedure.

The defendant/plaintiff by counterclaim brought a motion seeking declarations regarding her status as a shareholder and director of the plaintiff corporation following her termination without cause and the subsequent exercise of an option to purchase her shares.

The plaintiff brought a cross-motion seeking declarations that she had ceased to hold those positions.

The court interpreted the Unanimous Shareholder Agreement and found that the moving party and her family trust remain shareholders, and she remains a director, until the closing of the share transfer.

The court granted the requested declarations and ordered the plaintiff to provide access to corporate records.

The appellant appealed a trial judgment finding it liable for breach of contract and breach of warranty regarding a roof installation.

At trial under the simplified procedure, the appellant withdrew its non-suit motion and elected to call no evidence.

The trial judge accepted the respondent's evidence that the roof leaked persistently within the 10-year warranty period and that the appellant failed to correct the problem.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of evidence, causation, limitation period, or damages.

Shareholders and a director of two corporations brought an application seeking interim access to corporate books and records, including accounting records and source documents.

The respondents argued that the applicants already had sufficient financial information through electronic systems and financial statements.

The court held that under ss. 20 and 155 of the Canada Business Corporations Act and the applicable unanimous shareholders agreement, shareholders and directors have a broad and largely unconditional right to inspect corporate accounting records.

The term “adequate accounting records” includes source documents and records used to prepare financial statements, not merely the statements themselves.

The court granted the applicants immediate and unfettered access to specified corporate records but dismissed a related request for a restraining order as premature.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that a bald assertion of agency in the statement of defence was insufficient to raise a meritorious defence.

Costs of $2,500 were awarded to the respondents.

The defendant municipality brought a motion for costs under Rule 37.09, arguing that the plaintiff had abandoned its motion for an interim injunction regarding a collapsed slope.

The court found that the plaintiff's motion was not abandoned, but rather became moot because the municipality issued orders requiring the plaintiff to remediate the slope at its own expense.

The court dismissed the municipality's motion for costs, noting that the underlying issues of causation and responsibility remained to be determined at trial.

Costs of the motion were awarded to the plaintiff.

The appellant appealed a costs judgment awarding the respondent $298,681.16 in partial indemnity costs following a 16-day trial where the respondent was awarded $218,331.15 in damages.

The appellant argued the trial judge erred by awarding an amount virtually the same as substantial indemnity costs and failing to consider proportionality.

The Court of Appeal dismissed the appeal, finding the trial judge carefully explained his reasons, considered the complexities of the case, and had the proportionality principle in mind, demonstrating no error in principle.

The appellants appealed a motion judge's order finding them in contempt of court for breaching a Mareva injunction and imposing a $150,000 fine payable to the respondent.

The Court of Appeal upheld the contempt finding and the substantial indemnity costs award of $57,000.

However, the Court held that a fine for civil contempt is an offence against the administration of justice and must be paid to the Crown, not the opposing party.

The fine was reduced to $10,000 and ordered payable to the Provincial Treasurer.

The appellant appealed an order striking its Third Party Notice.

The Court of Appeal allowed the appeal, finding that while the pleading was deficient, it contained enough information to discern possible causes of action including unconscionability, breach of the Sale of Goods Act, and negligent misrepresentation.

The appellant was granted a further opportunity to properly articulate its claims.

However, due to the 'deplorable' state of the original pleading, the successful appellant was denied costs, and the respondent was awarded costs of the appeal fixed at $5,000.

The appellants, secured creditors of a bankrupt company, sought leave under s. 215 of the Bankruptcy and Insolvency Act to commence an action against the trustee in bankruptcy for negligence, conversion, breach of fiduciary duty, and breach of trust regarding the sale of the bankrupt's assets.

The motions judge dismissed the appeal from the Registrar's refusal to grant leave.

The Court of Appeal upheld the decision, finding that the trustee was acting as an agent for a prior secured creditor when selling the assets, and that the appellants had failed to object to the sale at the first meeting of creditors.

The appellant challenged a motion judge's refusal to permit amendments to plead negligence and insurer bad faith in an insurance action.

The Court of Appeal held that, to the extent the proposed negligence claim advanced an independent cause of action not governed by the policy's one-year statutory limitation period, it was subject to the six-year negligence limitation period and was sought too late absent special circumstances.

The court found no basis to interfere with the motion judge's finding that no such special circumstances existed.

The proposed bad faith amendments were also deficient because they either related to costs or failed to disclose a proper legal basis.

The appeal was dismissed with costs.

The appellant physician performed surgery on the respondent in 1969.

In 1979, a retained suture was discovered and removed.

The respondent brought a medical malpractice action.

Under the legislation in force in 1969, the limitation period expired one year after the termination of medical services.

In 1974, new legislation introduced a discoverability rule.

The Supreme Court of Canada held that the new limitation period did not apply retrospectively to revive a claim that was already statute-barred under the previous legislation.

The appeal was allowed and the action was declared barred.

The appellant, who had been awarded custody of her children, sought to locate them after they were abducted by her husband.

She obtained an order directing the respondent telecommunications company to provide telephone records to the court under s. 26 of the Family Law Reform Act, 1978.

The Court of Appeal set aside the order.

The Supreme Court of Canada dismissed the appeal, holding that the order went beyond the scope of the statutory authority and the inherent powers of the court, taking on an inquisitional nature beyond the traditional role of courts in inter partes proceedings.

The appellant, who was awarded custody of her children, sought an order compelling Revenue Canada to disclose the address of her former husband, who had abducted the children.

The Supreme Court of Canada dismissed the appeal, holding that the statutory confidentiality provisions in section 241 of the Income Tax Act preclude disclosure in civil proceedings.

The Court found no power to qualify these provisions and noted that the exceptions in section 241(4)(c) did not apply.