Alec McLennan

The appellant, a small jewelry business, appealed the dismissal of its action against CIBC following a summary judgment motion.

The appellant claimed that Advantex and CIBC misrepresented a marketing agreement entered into in June 2012, whereby the appellant agreed to pay 14% of sales made through CIBC credit card customers.

The appellant alleged it discovered the misrepresentation in December 2015 when it noticed payment irregularities.

The motion judge found the claim was statute-barred under the Limitations Act, 2002, as it was discoverable no later than December 2012.

The Court of Appeal upheld the dismissal on the merits but reduced the costs award from $50,000 to $25,000, finding the motion judge failed to apply the principle of proportionality in a simplified procedure case.

At a pre-trial hearing, the court struck the pleadings of Superior Fine Papers Inc., Reliance Holdings Limited, and Reliance Developments Corporation ("Superior et. al.") in two related actions due to their repeated failure to comply with court-ordered litigation timetables, deliver documents, make representatives available for examinations for discovery, and pay previously ordered costs.

The court also awarded further costs against Superior et. al. and set conditions for any motion to set aside the striking of pleadings, including the prior payment of all outstanding costs.

The court determined costs for two motions: a motion to transfer an action from Thunder Bay to Milton, and a cross-motion to stay an action in Milton based on a jurisdiction clause.

Both original motions were dismissed.

For the motion to stay, no costs were awarded, as the delays were attributed to the Property Owners' (Superior Fine Papers Inc., Reliance Holdings Limited, and Reliance Developments Corporation) conduct.

For the motion to transfer, the Property Owners were ordered to pay partial indemnity costs of $7,000 to Terrapure Environmental (Revolution Environmental Solutions LP c.o.b. as Terrapure Environmental and Revolution Environmental Solutions Acquisition GP Inc.), due to their unsuccessful motion and conduct that unnecessarily lengthened proceedings.

The Property Owners brought a motion to transfer a construction lien action from Thunder Bay to Milton and to have it heard together with a related breach of contract action.

The defendant, Newalta, brought a motion to stay the breach of contract action based on a forum selection clause specifying Alberta jurisdiction.

The court dismissed Newalta's motion for a stay, finding that although the forum selection clause was valid, the interests of justice and avoidance of multiple proceedings constituted strong cause not to enforce it.

The court also dismissed the Property Owners' motion to transfer the construction lien action, finding that Thunder Bay was the more appropriate venue given the location of the property, the events, and the witnesses.

The issue of whether the actions should be heard together was deferred to the Regional Senior Justice of the Northwest Region.

The court issued a costs endorsement following the dismissal of the plaintiff's action.

The defendant sought substantial indemnity costs for a motion and partial indemnity costs for the action.

The plaintiff argued the costs were unreasonable and disproportional.

The court fixed costs for the motion at $2,500 (substantial indemnity) and for the action at $24,104.36 (partial indemnity).

Substantial indemnity was awarded for the motion due to the plaintiff's sanctionable conduct, including failure to comply with previous costs orders and engaging in pointless delay.

The court emphasized that proportionality should not override other considerations, especially when a litigant's conduct prolongs or complicates proceedings, and that costs can exceed the amount recovered in judgment in appropriate circumstances.

The defendant brought a motion to strike the statement of claim and release funds paid into court, citing the plaintiff's repeated failure to comply with multiple costs orders.

The plaintiff had accumulated significant outstanding costs and had engaged in delaying tactics, including unverified claims of imminent funds and questionable travel expenses.

The court dismissed the plaintiff's action due to her contumelious breaches of costs orders and ordered the funds in court to be paid to the defendant, emphasizing the necessity of enforcing court orders despite the draconian nature of dismissal.

This endorsement fixes costs for a dismissed application for leave to appeal to the Divisional Court.

The respondent sought costs of $9,698.28, while the applicant argued for a lower award based on proportionality and the ongoing trial merits.

The court, applying Rule 57.01, found the respondent entirely successful, noted the complexity introduced by the applicant's 15-17 grounds of appeal, and considered the applicant's conduct in raising irrelevant issues.

Rejecting a standard maximum for leave to appeal costs, the court awarded the respondent $6,500.00 inclusive of HST and disbursements.

The applicant's application for leave to appeal to the Divisional Court was previously dismissed.

The respondent sought costs of $9,698.28 on a partial indemnity basis, arguing the applicant raised numerous complicated grounds of appeal.

The applicant argued for a lower amount based on proportionality and a purported standard maximum of $3,500 for leave applications.

The court rejected the standard maximum, finding the application was more complex than a standard leave application due to the 15 to 17 grounds of appeal raised.

Costs were fixed at $6,500 inclusive of HST and disbursements.

The applicant sought leave to appeal a motion judge's decision denying summary judgment on a promissory note and ordering further documentary production.

The underlying dispute involved allegations of forgery and cash payments.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's conclusion that the conflicting evidence required a trial.

The court also dismissed the application for leave to appeal the costs order.

The applicant sought leave to appeal a motion judge's decision dismissing her motion for summary judgment on a promissory note and ordering further documentary production.

The underlying action involved allegations of forgery and conflicting evidence regarding repayment of a loan.

The court dismissed the application for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's conclusion that the credibility issues required a full trial.

Leave to appeal the costs order was also denied.

The plaintiff bank brought a motion for summary judgment to recover amounts owing under a business credit agreement and personal guarantees.

The defendants asserted a limitation period defence and argued the bank improperly charged interest under the agreement.

The court held that payments made to the account constituted acknowledgments of liability under s. 13 of the Limitations Act, thereby restarting the limitation period.

The court also found the credit documentation authorized the bank to increase the interest rate upon default and rejected the alleged oral forbearance agreement.

Summary judgment was granted to the bank and the defendants’ counterclaim was dismissed.

The appellants appealed a Small Claims Court decision that ordered them to repay a $21,885.40 commercial debt to the respondent but refused to allow their counterclaim for equitable set-off of $20,886.37 in unpaid legal fees.

The Divisional Court allowed the appeal, finding the trial judge erred in law.

The court held that the two transactions were sufficiently close in time and context between the same parties to warrant equitable set-off, making it manifestly unjust to allow the respondent to enforce repayment without accounting for the cross-claim.

The defendants brought a motion under rr. 19.08(2) and (3) of the Rules of Civil Procedure to set aside a default judgment and the underlying noting in default.

The court found that the default proceedings were irregularly obtained because the requisition for noting in default was filed before the expiry of the time to deliver a defence and while the defendant had already served a notice of intention to defend and a motion to strike the statement of claim.

The court also noted that the defendant moved promptly to set aside the default once he learned of it and had not been warned of the default proceedings.

Applying the principles governing irregularly obtained judgments, the court held that the defendants were entitled to have the default judgment and noting in default set aside without demonstrating a defence on the merits.

The appellant appealed a decision upholding an assessment officer's refusal to grant an adjournment.

The appellant had sought the adjournment to argue a prior motion to have his solicitor's accounts assessed by a Superior Court Judge due to complexities involving alleged fraud, incompetence, negligence, and breach of trust.

The Court of Appeal allowed the appeal on terms, finding that despite the appellant's reprehensible conduct in walking out of the hearing, the assessment officer erred in refusing the adjournment given the case's complexities.

The appeal was allowed on the condition that the appellant pay $25,000 in costs and post a $75,000 letter of credit, failing which the appeal would be dismissed.