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The Court rejected the plaintiff’s equity and ownership claims, awarded repayment and quantum meruit, dismissed wrongful arrest, and allowed the defendant’s defamation counterclaim in part.
The Court affirmed the trial judge that the partnership existed at the time of the 395 Elm Road sale and that the appellant breached fiduciary duties by concealing the sale, understating the price and attempting a partial mortgage discharge; the appellant failed to prove mitigation or most of his claimed project expenses on a balance of probabilities (only $1,376.44 proven); appellate intervention on trial management was unwarranted; the appeal is allowed in part to credit the appellant $1,376.44 into the distribution and otherwise dismissed.
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Supplementary reasons on costs and interest: special costs were refused, but increased costs and double costs were awarded, and interest on punitive damages was limited.
The trial judge erred in awarding the respondent the full amount of the extra capital contribution as damages because that capital is part of the investment that will be recouped on sale; instead damages are the cost of borrowing the additional $211,203.01 for the period from the mortgage date to the date of trial, reduced by the $40,000 retained deposit, with the parties to calculate the precise amount.
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The court dismissed a plaintiff’s claims for breach of contract and conversion arising from an alleged business partnership, and dismissed the defendants’ counterclaim.
The court found on credibility that a binding contract existed between Porter and Spinney at $0.85 per pound; Spinney accepted delivery of the full load and failed to pay; defendants produced no credible evidence (photos, samples, witness testimony) to prove the goods were unfit, and there was no legal basis to hold R & K Murphy liable as principal, agent or partner, so judgment is entered against Spinney and claim against Murphy dismissed.
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The appeal was dismissed because the motion judge correctly found no agreement between the appellant and Fovere, no pleaded or proven equitable assignment binding Fovere, no evidence that Gemco and Fovere were partners or that Fovere held itself out as Gemco's partner under s.15, and no unjust enrichment; summary judgment for Fovere was therefore properly granted.
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The court found a written partnership agreement created a standalone restaurant venture at 6400 Kingsway, not an expansion of 6408 Kingsway, and awarded damages for fundamental breach.
The appeal was dismissed because the trial judge correctly found no final binding termination agreement outside the 2004 agreement (essential terms remained contingent on Deloitte's tax plan), correctly interpreted the unambiguous 2004 provision to require direct allocation of the associate expense and found misallocation, and correctly concluded the respondent did not know and could not reasonably have known of the misallocation until 2009 so the claim was not time-barred; laches and estoppel therefore failed and a judicial accounting and damages were properly ordered.
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The Court of Appeal refused security for costs on an appeal from a no-evidence dismissal, finding the appellant lacked means but the appeal was not hopeless.
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