Allan Herman

The moving party sought leave to appeal the decision of Sutherland J. dated June 11, 2024.

The Divisional Court denied the motion for leave to appeal.

Costs were fixed at $1,000 all-inclusive to the responding parties who appeared, with the amount reduced due to the failure to file a cost outline.

The defendants brought a motion to compel the plaintiffs' affiants to answer undertakings and refusals from their cross-examinations.

The primary issue was whether the plaintiffs waived solicitor-client privilege over their counsel's file regarding a business sale by placing their state of mind and legal advice in issue in their pleadings and affidavits.

The court found that the plaintiffs had waived privilege and ordered the production of the entire file and answers to related questions.

However, the court upheld refusals relating to the Assignment of Guarantees, legal accounts, and questions of law or relevance.

The motion was granted in part.

The appellant appealed a Master's order that dismissed its action for delay under Rule 11.03 of the Rules of Civil Procedure.

The Master had found that the appellant intentionally delayed obtaining an order to continue following a corporate reorganization to insulate its assets from the respondent's counterclaim.

The Divisional Court allowed the appeal in part, finding that the Master misapprehended the evidence and erred in applying the test for dismissal.

The Court held that a dismissal under Rule 11.03 requires a showing of prejudice related to the failure to obtain the order to continue, which the respondent failed to demonstrate.

The dismissal of the action was set aside, though the Master's refusal to vary the flawed 2015 order to continue was upheld, with leave for the appellant to requisition a fresh order.

The appellant appealed a motion judge's decision finding him liable for credit card charges under a September 2012 agreement with the respondent bank.

The appellant argued he was merely an authorized user and not liable.

The Court of Appeal dismissed the appeal, holding that the motion judge's conclusion was a mixed finding of fact and law owed deference, and was amply supported by evidence that the appellant received statements, used the card, and made payments.

The parties in multiple related actions jointly consented to have their actions case managed by a case management Master under Rule 77.05 of the Rules of Civil Procedure.

The court, satisfied that the criteria under Rule 77.05(4) were met, referred the matter to Master McAfee for assignment of a case management master.

The applicant purchased the assets of the respondent but failed to comply with the mandatory filing requirements under the Bulk Sales Act.

The applicant sought an extension of time to file the required affidavit under s. 11(3) of the Act.

The intervenor opposed the application, arguing that the applicant wilfully disregarded its statutory obligations.

The court established a five-factor test for granting an extension and, due to a lack of prior guiding case law, granted the extension.

However, the court ordered that the extension be without prejudice to the intervenor's separate action to void the sale.

The appellant appealed a garnishment order requiring it to pay the respondent creditor.

The appellant argued it was indebted to an arms-length intermediate party, not the debtor, and that the motions judge erred in considering late affidavits.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the motions judge's conclusion that the debtor was in fact an employee of the appellant, nor any error in the exercise of discretion to admit the affidavits.

Following a prior endorsement on costs, the court received further correspondence from counsel seeking clarification regarding the scope of the costs decision.

The court confirmed that the earlier costs ruling applied to all relevant proceedings in the matter.

This included proceedings from an earlier attendance before another judge that had been reserved to the deciding judge.

The endorsement was issued to clarify that those proceedings were encompassed within the original costs determination.

In a supplementary endorsement following earlier reasons, the court addressed issues arising from submissions on costs in a garnishment proceeding.

The parties disputed whether certain payments constituted “wages” under the Wages Act, which would significantly affect the amount of judgment potentially recoverable through garnishment and the proportionality considerations relevant to costs.

The court directed the parties to address whether the characterization issue could be determined by a Master on reference or should be decided immediately by the judge.

Counsel were instructed to confer and advise whether they could agree on the issues or wished to provide written submissions or argue the matter in open court.

A judgment creditor brought a motion seeking payment from a garnishee under a notice of garnishment relating to funds earned by a judgment debtor through sales activities.

The garnishee argued that the debtor did not work for it but rather for a separate corporate entity operating from the same premises.

The court held that the evidence demonstrated the debtor effectively worked for the garnishee by selling its products using its systems and receiving payment for those sales.

As garnishment is an equitable remedy, the court found that the garnishee could not avoid the creditor’s judgment by structuring the relationship through another entity.

Judgment was granted against the garnishee for payments made during the garnishment period, with an accounting ordered to determine the precise amount owing.

After a summary judgment motion and cross‑motion in a commercial dispute over advertising contracts, the court addressed the scale and quantum of costs.

The defendants had successfully obtained dismissal of certain claims and argued that their prior offer to settle was more favourable than the eventual outcome.

They also argued that the plaintiff’s tactical allegation of fraud justified punitive costs.

The court held that the declined offer to settle and the unsupported fraud allegations justified costs on a substantial indemnity basis.

Costs were awarded to the successful defendants, including a separate amount payable forthwith to two defendants whose claims were dismissed.

The plaintiff moved for summary judgment to recover amounts allegedly owed under advertising contracts for the use of two billboard locations.

The defendants resisted and brought a cross-motion seeking summary judgment dismissing claims for fraudulent and negligent misrepresentation, breach of collateral warranty, and an oppression remedy.

The court held that although the plaintiff established unpaid invoices, the defendant’s equitable set-off defence arising from alleged misrepresentation regarding rights to a billboard location created a genuine issue requiring a trial.

However, the court found no genuine issue requiring trial on the plaintiff’s tort and oppression claims and granted summary judgment dismissing those claims.

The matter proceeds to trial on the contractual dispute and equitable set-off issues.

The plaintiff moved for summary judgment to recover amounts allegedly owed under advertising contracts for the use of two billboard locations.

The defendants resisted and brought a cross-motion seeking summary judgment dismissing claims for fraudulent and negligent misrepresentation, breach of collateral warranty, and an oppression remedy.

The court held that although the plaintiff established unpaid invoices, the defendant’s equitable set-off defence arising from alleged misrepresentation regarding rights to a billboard location created a genuine issue requiring a trial.

However, the court found no genuine issue requiring trial on the plaintiff’s tort and oppression claims and granted summary judgment dismissing those claims.

The matter proceeds to trial on the contractual dispute and equitable set-off issues.

Following an appeal where the appellants achieved substantial success and the trial judgment was varied, the Court of Appeal issued an addendum on costs.

The court upheld the trial judge's assessment of motion costs at $11,143.49 in favour of the respondent and awarded the respondent her trial costs on a party-and-party basis, fixed at $9,000.

The appellants were awarded their appeal costs, fixed at $4,000.

The net costs payable to the respondent were fixed at $16,143.49.

The appellants (tenants) appealed a trial judgment regarding a commercial lease dispute with the respondent (landlord).

The Court of Appeal upheld the trial judge's finding that a 1992 agreement was a renewal of a 1987 lease, triggering the tenants' obligation to pay property taxes and insurance premiums.

However, the Court found the trial judge erred in placing the burden of proof on the tenants to show the insurance premiums were improperly charged.

Because the landlord failed to prove the insurance coverage obtained matched the lease requirements, the Court deducted $17,116.88 from the amount owed by the tenants.

The appeals concerned the constitutionality of the former rape-shield provisions in Criminal Code ss. 276 and 277, which restricted defence use of a complainant’s prior sexual conduct in sexual offence prosecutions.

The Court held that s. 276 violated ss. 7 and 11(d) of the Charter because its blanket exclusion could bar relevant defence evidence whose probative value was not substantially outweighed by unfair prejudice, and that the provision was not saved by s. 1.

Section 277, which barred sexual reputation evidence to support or attack credibility, was upheld as targeting an illegitimate use of evidence.

The Court also held that preliminary inquiry judges lacked jurisdiction to determine the constitutional validity of the impugned provisions, so the appeals from the committals nevertheless failed and the matters were to proceed to trial.