College),  B.C.J. No. 210, B.C.C. A.,
per Chiasson J.A. (Prowse and Kirkpat-
rick JJ. A. concurring), Feb. 11/11. Digest
No. 3041-005 (Approx. 9 pp.)
REPAIRS TO GOODS AND MOTOR
VEHICLES – Defendant did not charge
unlawful fee for estimate in charging for
additional optional service required to
determine problems with transmission.
Motion by defendant for summary
judgment. The action was certified as a
class proceeding in November 2008.
Defendant was a franchisor and did not
own or operate any transmission repair
centres. When a customer brought their
vehicle into a Mister Transmission service
centre and the free initial assessment
determined that there was a problem
with the transmission requiring a further
specific diagnosis, the franchisee would
offer an Inspection Service. The Inspection Service involved the removal, dismantling and reinstallation of the transmission. The customer would then be
given the price of the repair and following
the completion of the repair, the customer would be provided with an invoice
specifying the prices of the Inspection
Service and the repair as separate items.
Plaintiff alleged that such a practice violated the Motor Vehicle Repair Act (Ont.)
and its replacement, the Consumer Protection Act, 2002, as it was unlawful to
charge a fee for an estimate if the customer authorized the repair and the
repair was carried out.
HELD: Motion allowed. Plaintiff’s
statutory interpretation ran directly contrary to the purpose of the legislation and
would lead to an absurd consequence. The
intent of the legislation was to provide
consumers with protection in their dealings with automobile repairers. However,
if a fee for an estimate could include the
hours of labour involved in the Inspection
Service, the repairer would have to either
provide those services free of charge or
blindly quote the maximum price for all
potential repairs. That would be an absurd
result and could lead to overcharging of
customers. In contrast, defendant’s interpretation would result in customers only
being charged for necessary and authorized work. There was no statutory violation by defendant or its franchisees. Consequently, there were no genuine issues for
trial and the action was dismissed.
Dean v. Mister Transmission (Inter-
national) Ltd.,  O.J. No. 414, Ont.
S.C.J., Hourigan J., Jan. 31/11. Digest
No. 3041-006 (Approx. 16 pp.)
DERIVATIVE ACTIONS – Plaintiff
shareholder granted leave to commence
derivative action on behalf of company.
Motion for leave to commence a deriva-
tive action on behalf of S Ltd. In 2008 S
Ltd. sold all of its voting common shares to
a numbered company, controlled by the
individual defendants, which was subse-
quently amalgamated with S Ltd. The $4.5
million balance of the $18 million purchase
price was provided by way of plaintiff
acquiring 2,500 preference shares in S Ltd.
The price to be paid for the $4.5 million in
preference shares was to be determined
according to a formula that took into
account S Ltd.’s net revenues in the period
between closing and June 30, 2011. Plain-
tiff alleged the individual defendants had
taken steps that were detrimental to S Ltd.’s
interests, contrary to their fiduciary duties
as directors of S Ltd. and had preferred the
interests of defendant corporation.
DIRECTORS – Court refused to
restrain defendants from holding special shareholder’s meeting simply
because plaintiff may be removed as director of defendant corporations.
Motion for an order restraining a
change in the boards of the corporate
defendants. Plaintiff also sought a declaration that defendant JW, in his capacities as
officer and director of corporate defendants, caused them to act in an oppressive,
unfairly prejudicial manner towards plaintiff. Finally, plaintiff asked the court to
restructure the corporations. Plaintiffs
GW and JW were brothers. They were
involved in the ownership and operation
of several family businesses and corporations for more than 30 years. GW owned
45 per cent of the shares in the corporations and JW owned 55 per cent. In May
2007 GW and JW decided to go their
separate ways. Negotiations to separate
the business affairs failed and in August
2010 JW served GW with a requisition for
a shareholder’s meeting for each of defendant corporations for the purpose of electing a new board of directors. Because JW
owned 55 per cent of the shares, he was
able to control the outcome of the election
and intended to remove GW as a board
member of each corporation. Plaintiffs
commenced an action under the Business
Corporations Act (Ont.) to appoint a
receiver and manager and to sell or wind
up the corporations. Judicial mediation
had been unsuccessful.
HELD: Motion dismissed. The court
was not satisfied on the evidence presented that holding a special election to
elect new boards of directors of defendant
corporations would be unfairly prejudicial
or oppressive to the rights of the minority
shareholders. If, after the change, there
was conduct that was oppressive or
unfairly prejudicial to, or that unfairly disregards the interests of, any security
holder, creditor, director or officer of the
corporation, the issue could be revisited.
The proposed meeting should not be precluded simply because it would likely
result in GW being removed from his position on the various boards.
Witiluk v. Witiluk,  O.J. No.
613, Ont. S.C.J., Warkentin J., Jan. 31/11.
Digest No. 3041-008 (Approx. 6 pp.)
ENTITLEMENT – Appellate court
upheld decision by Criminal Injuries
Compensation Board to deny compensa-
tion to appellant because he had entered
the room where he was assaulted for the
purpose of selling drugs.
UNJUST ENRICHMENT – Trial
judge erred in valuation of services ren-
dered by plaintiff to the business of her
former common-law spouse.
Appeal from a decision in favour of
plaintiff. Plaintiff was the common-law
spouse of the deceased. They lived
together from 1968 until the deceased’s
passing in 2007. During their time
together, the couple operated a success-
ful fishing business. The business was
incorporated, with the deceased as the
sole shareholder. Plaintiff claimed
against the deceased’s estate for unjust
enrichment. The trial judge found that
plaintiff was entitled to a 50 per cent
interest in the deceased’s main asset, a
$2.4 million shareholder’s loan to the
business. At issue on appeal was the
appropriate date and method to valuate
plaintiff’s interest in the estate. The
estate submitted that the award should
have been based on 50 per cent of the
market value of the business as at the
date of trial, reflecting the intervening
decline in the fishery and the consequent
fortunes of the business.
ISSUE ESTOPPEL – Plaintiff
estopped from proceeding against guar-
antors of mortgage in addition to fore-
Motion by defendants to dismiss
action of plaintiff. Plaintiff agreed to
make a mortgage loan to a corporation
owned by defendant JM and to his family.
The security for the loan included a mortgage from JM’s parents of two properties
and accompanying guarantees of JM and
defendant GM. The mortgage on JM’s
parents’ properties went into default and
plaintiff commenced foreclosure proceedings. Plaintiff then sued defendants on
their guarantees for approximately $2.7
million. Defendants took the position
that the action was res judicata or an
abuse of process.
HELD: Motion allowed. Defendants
were privies to the foreclosure action
and, in fact, were necessary parties that
ought to have been joined as parties.
Furthermore, the courts decided that the
parties and privies to the foreclosure
action could not be sued on the covenant.
Accordingly, the action before the court
was precluded by estoppel. There was no
unfairness in applying an issue estoppel
in the circumstances.
L-Jalco Holdings Inc. v. Marino,
 O.J. No. 419, Ont. S.C.J., Perell
J., Jan. 31/11. Digest No. 3041-011
(Approx. 13 pp.)
ADMISSIBILITY – Respondent
board did not err in ruling evidence of
prior dispute between parties not rel-
evant to appellant’s review proceedings.
Appeal from an evidentiary ruling in
proceedings before respondent Energy
and Utilities Board. Appellant was ordered