William Dunlop

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.

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 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 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.