Anthony T. Keller

In a trial arising from a share purchase agreement for a campground business, the plaintiff alleged the vendors failed to disclose the full amount of prepaid rentals and deposits collected before closing.

The court found the defendants selectively disclosed partial information and actively withheld important information concerning prepaid rentals, amounting to intentional misrepresentation.

Relying on the duty of honest performance articulated in Bhasin v. Hrynew, the court held the contractual 12-month warranty limitation did not bar the claim.

Judgment was granted to the plaintiff for $73,856.00, with interest and costs to be addressed if not agreed.

Costs decision following a successful motion by defendants to set aside a default summary judgment.

The court considered whether the defendants, as the successful parties on the motion, were presumptively entitled to costs or whether the plaintiff should recover costs thrown away as a condition of setting aside the judgment.

The court held that where a default judgment is set aside, the non‑defaulting party may be compensated through costs thrown away even if unsuccessful on the motion.

As the plaintiff had complied with the Rules of Civil Procedure and the defendants failed to respond before judgment was obtained, fairness required compensating the plaintiff.

The plaintiff’s partial indemnity costs of responding to the motion were therefore included in costs thrown away.

The defendants brought a motion under r. 37.14 of the Rules of Civil Procedure to set aside a summary judgment obtained in their absence.

The judgment had been granted after the defendants failed to attend the motion, which they asserted occurred through mistake and lack of awareness of the motion date while self‑represented.

The court held that r. 37.14 grants a broad discretionary power to set aside orders where a party fails to appear through accident, mistake, or insufficient notice.

Considering the absence of deliberate disregard of the process and the policy favouring adjudication on the merits, the court exercised its discretion to set aside the summary judgment.

The defendants were ordered to pay costs thrown away and the action was restored to the trial list.

The court determined the appropriate quantum of costs following a motion where the successful party sought partial indemnity costs.

The responding party challenged the hourly rate claimed, time billed for preparation of an affidavit, and charges related to cross-examinations that did not proceed.

The court accepted the challenges regarding the hourly rate and certain cross‑examination-related charges but rejected the challenge to the affidavit preparation time, finding it necessary for the motion.

Costs were recalculated based on a reduced hourly rate and adjusted disbursements.

The court ordered payment of revised costs inclusive of disbursements.

During family law proceedings, the responding party brought an oral motion seeking directions regarding outstanding undertakings, refusals, and questions taken under advisement arising from questioning under oath.

The court considered thirteen disputed requests for production and further questioning.

Several requests were denied where no undertaking had been given, where the documents were not in the moving party’s control, or where the request was overly broad or irrelevant to the issues in dispute.

Limited additional disclosure was ordered for certain financial documents, including bank statements and credit accounts, and in one instance the responding party was directed to request documents from a government ministry.

The court also permitted limited re‑attendance for further questioning in relation to some ordered disclosures.

The parties jointly sought directions regarding the order in which two motions should be heard in a tender dispute action.

The plaintiff sought production of tender documents and related discovery concerning the defendant municipality’s historical tender practices, while the defendant brought a summary judgment motion arguing the claim could be resolved as a legal issue based on explicit tender terms.

The court held that the summary judgment motion was not framed solely as a question of law and that determining the legal issue could require a factual matrix concerning past tender practices.

Requiring the plaintiff to respond to the summary judgment motion without disclosure could be prejudicial.

The court directed that the plaintiff’s discovery motion proceed first.

Following a motion in which the defendants successfully sought to strike an affidavit sworn by a lawyer from the plaintiffs’ law firm, the court addressed the quantum of costs payable.

Although the defendants succeeded on grounds different from their primary argument, the court found they were nevertheless the successful party.

The court assessed reasonable preparation and attendance time for counsel and limited clerk time on a partial indemnity scale.

Costs were calculated using hourly rates for counsel and clerk time and applicable tax.

The moving parties brought a motion for summary judgment seeking dismissal of the action and requested that the responding parties’ affidavit evidence sworn by a law partner of counsel be struck.

The court considered whether it was proper for counsel to rely on an affidavit sworn by a partner in the same firm who had previously acted as lawyer of record.

Reviewing prior jurisprudence and professional conduct rules, the court held that certain portions of the affidavit contained improper hearsay, legal argument, and evidence that should have come from the client or documentary exhibits.

The court struck the improper portions and ultimately struck the affidavit in its entirety while granting leave to file new responding material.

The motion for summary judgment was not determined on the merits at this stage.

The appellant appealed the dismissal of her claim for intentional infliction of mental or emotional harm.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial because the appellant failed to produce any evidence of harm or illness, which is an essential element of the tort, over the eight years the matter had been outstanding.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal allowed the appeal on consent, ordering that it proceed as per the attached minutes of settlement.

The cross-appeal was dismissed.

The appellants appealed a judgment finding them liable for conversion.

The Court of Appeal dismissed the appeal, agreeing with the motions judge that it was a clear case of conversion.

Costs were awarded to the respondent on a partial indemnity basis.

The appellant appealed an order regarding child support adjustments, arguing the application judge erred in finding no material non-disclosure of corporate income, failing to claw back corporate payments to the respondent's current spouse, and failing to average the respondent's income over three years.

The Court of Appeal dismissed the substantive grounds of appeal, finding no palpable and overriding error in the application judge's findings on disclosure, the reasonableness of the spouse's remuneration, and the parties' agreed-upon mechanism for adjusting support.

However, the Court allowed the appeal regarding costs, reducing the application judge's substantial indemnity costs award to partial indemnity, as the allegations of non-disclosure did not amount to egregious fraud-like conduct.

The appellant appealed the order of the trial judge.

The Court of Appeal found no reviewable error and dismissed the appeal, fixing costs at $6,000.

The appellants appealed an order dismissing their motion to set aside a previous consent order and seeking damages arising from an interim injunction.

The Court of Appeal upheld the motion judge's decision, finding that the doctrine of res judicata barred the request to set aside the order because the relief could and should have been sought in an earlier motion.

Furthermore, the court agreed that the earlier consent order, which dissolved the injunction without conditions, barred the appellants from subsequently claiming damages.

The mother, who was granted sole custody of the child, appealed the trial judge's refusal to permit her to relocate to Alberta with the child.

The Court of Appeal found that the trial judge erred by focusing solely on the mother's employment and the father's access, while disregarding the social, psychological, and emotional benefits of the move for the mother.

Applying the framework from Gordon v. Goertz, the Court held that the views of the custodial parent are entitled to great respect and that the move would enhance the best interests of the child by allowing the mother to regain stability and independence.

The appeal was allowed, permitting the mother to relocate to Calgary.

The appellant husband appealed a trial judgment regarding the valuation date for his business, the quantification of the equalization payment, prejudgment interest, and a ten percent premium on legal costs awarded to the respondent wife.

The Court of Appeal upheld the trial judge's findings on the valuation date, equalization payment, and prejudgment interest, finding no palpable and overriding error.

However, the Court set aside the ten percent premium on costs, noting no authority for such an order in a family law context where substantial costs had already been awarded.

A cross-appeal regarding child support was allowed on consent.

The appellant's former solicitor obtained a charging order under the Solicitors Act against all sums receivable by the appellant under a divorce judgment, including spousal support arrears, for unpaid legal fees.

The appellant appealed the order.

The Court of Appeal allowed the appeal, holding that as a matter of law and public policy, charging orders should not be made against spousal support payments, as support is distinct from property and is intended to address demonstrable need.

The appellant appealed a judgment in a matrimonial action, seeking a new trial on the basis that his trial counsel was incompetent for failing to marshal relevant evidence.

The Court of Appeal dismissed the appeal, finding no evidence to determine whether the lack of evidence was attributable to counsel or the appellant's own failure to divulge information.

The respondent's cross-appeal regarding deductions for notional costs and tax liability was also dismissed, as the trial judge's consideration of probable tax liability was reasonable given the record.

The appellant appealed a summary judgment and costs order.

The Court of Appeal upheld the summary judgment, finding no genuine issue for trial and confirming the motions judge's jurisdiction to hear the summary judgment motion despite the appellant's motion to discontinue under Rule 23.

The Court also upheld the solicitor and client costs award.

However, the Court set aside one paragraph of the judgment regarding the costs of a prior motion, as the motions judge lacked jurisdiction to alter an existing order.

The appeal was allowed in part.