Alan B. Dryer

The defendant, Promark Electronics Inc., appealed a Master's interlocutory order requiring it to produce financial documents (including financial statements and sales records for 2002-2016) and answer related questions on examinations for discovery.

The underlying action involved a claim by the plaintiff, Sanford Gray, for wrongful termination by constructive dismissal, alleging a unilateral reduction in his compensation package.

Promark's defence asserted an implied term in the employment agreement allowing it to vary compensation based on business objectives and economic circumstances, specifically profitability and sales diversification.

The Master found the requested financial documentation relevant to test Promark's defence and the plaintiff's counter-allegations regarding the true reasons for the compensation change.

The Superior Court upheld the Master's decision, finding no error of law, mixed fact and law, or fact, concluding that the financial information was relevant to the pleaded issues and that the Master's proportionality assessment was appropriate.

Following a judgment where Vivekanandan successfully established an easement and adverse possession over a disputed area, they sought costs on a substantial indemnity basis under Rule 49 of the Rules of Civil Procedure.

The court declined to award substantial indemnity, noting that Rule 49.10 is more appropriately applied to monetary judgments and that Vivekanandan was not entirely successful on all aspects of their claim.

The court awarded costs on a partial indemnity basis, finding the requested amount of $93,107.99 (including fees, HST, and disbursements) to be reasonable given the complexity and effort involved in the property title litigation, consistent with the principle of indemnity and reasonable expectations.

The parties are neighbours involved in a property boundary dispute over a strip of land between their houses.

The disputed land consists of a Driveway Area and a Backyard Area, both of which are registered to the applicant's property but have been used by the respondents and their predecessors in title.

The court found that the respondents' predecessors had established a prescriptive easement over the Driveway Area through 20 years of continuous, open, and uninterrupted use prior to the property's conversion to the Land Titles system.

The court also found that the respondents acquired title to the Backyard Area through adverse possession, as their predecessors had exclusively enclosed and occupied the area for the requisite statutory period.

The respondents' counter-application was granted.

The plaintiff in a wrongful dismissal action moved for a further and better affidavit of documents and to compel answers to questions refused at discovery.

The plaintiff alleged constructive dismissal after the defendant unilaterally reduced his compensation package.

The defendant claimed it had unfettered discretion to vary the commission structure based on business realities, including profitability.

The court found the defendant's financial records relevant to test its claim regarding business realities and ordered production of financial books and records from 2000 to 2016.

The court also ordered the defendant's representative to answer most of the refused discovery questions, finding them relevant to the profit margin issue.

The plaintiff was awarded $8,000 in partial indemnity costs.

Appeal from a motion judge's decision dismissing the appellant's claim on the basis that it was statute-barred.

The motion judge found that the appellant knew or ought to have known of the claim within the limitation period.

The appellants argued the motion judge erred in his findings regarding when the appellant became aware of the claim.

The Court of Appeal upheld the motion judge's decision, finding no error and dismissing the appeal with costs awarded to the respondent.

The appellant appealed a judgment from the Superior Court of Justice dated June 17, 2016.

The parties settled the matter prior to the appeal hearing.

The appeal and application for leave to appeal costs were dismissed by consent, with costs awarded to the respondent in the amount of $25,000, all inclusive.

Following a successful summary judgment motion dismissing the plaintiff's claim for development charges as statute-barred, the defendants sought partial indemnity costs of $21,941.47.

The plaintiff argued the costs should be drastically reduced to $2,104.50, asserting the defendants unnecessarily focused on substantive defences rather than solely on the limitation period.

The court rejected this argument, finding that the underlying factual footprint had to be developed regardless of the focus, and that the defendants' costs were reasonably incurred.

The court fixed the defendants' costs at $17,500 all inclusive.

Following the dismissal of the plaintiff's $10.5 million claim and the granting of the defendant's counterclaim on a motion for summary judgment, the successful defendant sought costs on a substantial indemnity basis.

The court rejected the claim for substantial indemnity costs, finding the plaintiff's conduct did not meet the requisite standard of reprehensible conduct.

Applying the factors under Rule 57.01 and the principle of proportionality, the court reduced the defendant's claimed hours and fixed costs at $80,000 inclusive of disbursements and HST.

The plaintiff sued its land planner and construction manager for professional negligence, alleging they failed to apply for a building permit before a new municipal by-law came into effect, resulting in the plaintiff paying $266,157.22 in development charges.

The defendants brought summary judgment motions arguing the claims were statute-barred.

The court granted the motions, finding that the plaintiff discovered the material facts of the claim in 2011 when it learned the charges could have been avoided with a timely permit application, making the 2015 actions out of time under the Limitations Act, 2002.

The defendant, King Packaged Materials Company, brought a motion for summary judgment to dismiss the plaintiff's (Construction Distribution & Supply Co. Inc.) action for insufficient termination notice of a distribution agreement and to grant its counterclaim for unpaid products.

The court found that the unwritten, non-exclusive distribution agreement, which lasted 18 years, implied a term for reasonable notice of termination based on industry custom.

Considering factors such as the plaintiff's low dependence on the defendant's products (less than 5% of total sales) and lack of substantial investment, the court determined that the three months' notice provided by the defendant was reasonable.

Consequently, the plaintiff's claim for damages was dismissed, and the defendant's counterclaim for $93,890.49 plus interest for unpaid products was granted.

The applicants in CCAA proceedings sought an extension of the Stay Period to April 15, 2016, as they prepared an Amended and Restated Plan of Compromise.

The court found the parties were working in good faith and with due diligence, and granted the extension.

The court also approved an agreement to lift the Co-Tenancy Stay on acceptable terms and extended the Notice of Objection Bar Date.

The appellant tenant breached a commercial lease covenant to continuously operate its business and to restore the premises upon expiry.

The landlord affirmed the lease and later sued for damages.

The tenant argued the claim was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld the motion judge's finding that the failure to operate the business was a continuing breach, giving rise to a fresh cause of action and a rolling two-year limitation period for each day of non-compliance.

The claim for failure to restore the premises was also brought within the limitation period, as it accrued upon the expiry of the lease.

The moving respondent sought a stay of a production order requiring corporate counsel to disclose patent application materials and related solicitor files in an oppression and fraud proceeding, together with directions for discoveries and an adjournment of a scheduled summary trial.

Applying the RJR-MacDonald framework and the leave to appeal standard in rule 62.02(4), the court held there was no serious issue to be decided because the alleged conflicting authorities did not conflict with the production ruling and there was no good reason to doubt its correctness or sufficient importance to justify leave.

The court further found no irreparable harm, given the confidentiality protections already imposed, and concluded the balance of convenience favoured disclosure in advance of the imminent summary trial.

The motion was dismissed, as were the requests for discoveries and an adjournment, and costs were fixed in favour of the applicants.

The applicants in an oppression proceeding sought production of patent applications and related corporate files held by the corporation's solicitors.

The court held that the applicants became shareholders and directors upon execution of the founders agreement, and that the intellectual property had been effectively assigned in equity to the corporation.

Because the solicitors acted for the corporation rather than the inventor personally, the claimed privilege objection failed.

The applicants, as directors, were entitled to the files needed to discharge their corporate duties and prepare for the impending summary trial.

Production was ordered forthwith, without redaction, subject to use only for the litigation and a non-disclosure agreement for any expert.

The plaintiffs sought leave to appeal a $52,000 costs order made against them following their successful motion to amend the statement of claim.

The plaintiffs argued the motions judge misapplied the 'indulgence' principle by awarding costs against the successful moving party.

The Divisional Court dismissed the application, finding no conflicting decisions or reason to doubt the correctness of the highly discretionary, fact-specific costs award.

The court held the stringent test for leave to appeal under Rule 62.02(4) was not met.

The moving party sought leave to appeal an Ontario Municipal Board (OMB) decision that approved ten minor variances for the responding parties' proposed home construction.

The moving party, a neighbour who had 'participant' status at the OMB hearing, argued the OMB's reasons were insufficient and failed to demonstrate it grappled with the issues.

The Divisional Court dismissed the motion, finding the OMB's reasons were sufficient given the brief, uncontested expert evidence presented at the hearing.

In obiter, the court noted that a 'participant' at an OMB hearing likely lacks standing to seek leave to appeal.

Following a summary judgment motion concerning limitation defences in a commercial lease dispute, the court determined the appropriate award of costs and interest.

The defendant had been partially successful on the motion, particularly on a limitation argument affecting the recoverable quantum of damages under a liquidated damages clause.

The court held that the defendant achieved meaningful success and was entitled to recover a significant portion of its partial indemnity costs.

However, the plaintiff was awarded costs related to an issue concerning rent arrears that could have been resolved earlier.

Net costs were awarded to the defendant with pre‑judgment interest payable to the plaintiff on the rent arrears component.

A commercial landlord sued a tenant for rent arrears, liquidated damages under a continuous‑operation clause in a lease, and damages for failure to restore leased premises at the end of the lease.

The tenant moved for summary judgment arguing the arrears were paid and the remaining claims were statute‑barred.

The court held that liquidated damages under the continuous‑operation clause were not "rent" within the meaning of the Real Property Limitations Act but were damages governed by the two‑year limitation period under the Limitations Act, 2002.

Because the breach was continuous, the landlord could recover only damages accruing within two years before the action was commenced.

The restoration claim was not time‑barred because the obligation arose only upon termination of the lease.

In complex estate and commercial litigation arising from estate planning transactions and a will that effectively disinherited family members, the plaintiffs sought leave to further amend their statement of claim to add allegations of knowing assistance in breach of trust and fiduciary duty against an accountant and additional particulars against other defendants.

Several defendants opposed the amendment on the basis of prejudice and limitation periods under the Limitations Act, 2002.

The court held that under Rule 26.01 of the Rules of Civil Procedure leave to amend should be granted unless non-compensable prejudice would result, and that disputes about discoverability and limitation periods should be determined by the trial judge on a full evidentiary record.

As discoveries were ongoing and trial remained more than a year away, any prejudice could be addressed through costs.

Leave to amend was granted with costs awarded to certain defendants for prejudice arising from the amendments.

The parties sought a determination of costs following a seven-day trial that resulted in a net judgment of $24,894.87 for the defendants on their counterclaim.

The defendants sought $80,000 in costs, while the plaintiff argued for no costs due to mixed success and the defendants' failure to admit facts.

The court found that success was mixed, the trial was unnecessarily prolonged, and the costs sought were disproportionate to the recovery.

The court ordered that no costs be awarded to either party.