Barry Howard Bresner

This appeal concerns the interpretation and application of section 4 of the Interest Act to complex commercial loan agreements between ClearFlow Energy Finance Corp. and Solar Power Network Inc. The central dispute involves whether a "discount fee" of 0.003% per day and "administration fees" constitute interest within the meaning of the Interest Act, and whether the loan agreements comply with the statutory requirement to express interest as an annual rate or percentage.

The application judge found that the discount fee was interest, that the loan agreements failed to comply with section 4, and that all interest payable should be capped at 5% per annum.

The Court of Appeal allowed the appeal, finding that the discount fee was properly annualized through a formula in the Loan Agreement, that the Loan Agreement complied with section 4, and that the appropriate remedy for non-compliance in the Promissory Notes was to limit only the non-compliant discount fee to 5%, not all interest payable.

The applicant, Canadian Home Publishers Inc. (general partner), and the respondents, estate trustees of David Colville-Reeves (sole limited partner), sought conflicting determinations regarding the entitlement to profits and residual assets of Canadian Home Publishers (CHP), a limited partnership.

The court determined that CHP was dissolved upon David's death because his executors did not become substituted limited partners without consent or prior authorization.

Consequently, CHP must be wound up, and its residual assets are to be distributed equally between the general partner (Lynda Reeves, owner of CHP Inc.) and David's Estate, as per the Partnerships Act.

The court dismissed the respondents' promissory estoppel argument, finding no formal representation or detrimental reliance, and doubted its applicability against mandatory statutory provisions.

The plaintiffs brought a motion for an interlocutory injunction to restrain the defendants from soliciting customers and making defamatory statements.

The parties agreed to adjourn the main motion, but the court had to decide a jurisdiction challenge and a request for an interim injunction.

The court held that Ontario had jurisdiction, as the exclusive forum clause in the parties' recent Termination Agreement superseded the Quebec forum clause in their earlier Dealership Agreement.

However, the court denied the interim injunction, finding that the plaintiffs' year-long delay in bringing the motion undermined their claim of irreparable harm pending the return of the main motion.

The appellants, two insurance companies, appealed the summary dismissal of their action against respondents for breach of an alleged oral agreement and inducement of breach of contract.

The motion judge dismissed the action on the basis that the parties had agreed that no binding contractual relationship would exist without a signed written agreement (the "Precondition").

The Court of Appeal found this conclusion was a palpable and overriding error.

The evidence only supported that the parties intended to eventually document their agreement in writing, not that execution of a written contract was a precondition to legal obligations.

The court allowed the appeal against the Vancity respondents and directed the matter to trial, but dismissed the appeal against the Co-operators respondents on alternative grounds.

The court issued a supplementary costs endorsement regarding specific disbursements claimed by the defendants, Co-operators.

After receiving an explanatory letter from the defendants' counsel and no response from the plaintiffs, the court found the disbursements for photocopies, binding, scanning, and laser printing to be reasonable.

The plaintiffs were ordered to pay the defendants $11,406.37 for these disbursements.

The defendants sought costs following the dismissal of the plaintiffs' action.

Vancity claimed substantial indemnity costs based on a Rule 49.10 offer to settle.

The court held that Rule 49.10 does not apply where an action is dismissed, and awarded partial indemnity costs.

The court rejected the plaintiffs' arguments that the defendants' claimed hours were excessive, noting the plaintiffs failed to produce their own bill of costs for comparison.

The court fixed Vancity's fees at $200,000 and Co-operators' fees at $130,000, plus HST and allowable disbursements.

The defendants brought motions for summary judgment to dismiss claims of breach of contract and inducing breach of contract.

The plaintiffs alleged an oral agreement for an exclusive insurance supplier arrangement with Vancity Insurance, which was later sold to Co-operators.

The court found that no binding oral agreement existed because the parties intended their legal obligations to be deferred until a formal written contract was approved and executed.

Consequently, the claim for inducing breach of contract against Co-operators also failed, as there was no valid contract to breach, and Co-operators had no knowledge of a binding agreement, nor did it "turn a blind eye." The action was dismissed against all defendants.

This endorsement addresses the costs arising from a prior motion where Fishman Flanz Meland Paquin LLP (FFMP) was successful against FCA Canada Inc. (Chrysler).

FFMP claimed costs of $138,923.68, while Chrysler argued for no more than $50,000.

The court considered the complexity of the motion, the importance of the matter to FFMP, and Chrysler's unreasonable position.

The court assessed FFMP's fees at $85,000 and disbursements at $2,698.47, plus applicable taxes, to be paid by Chrysler within thirty days.

Fishman Flanz Meland Paquin LLP (FFMP), counsel to the Creditors' Committee in a CCAA proceeding, brought a motion to compel FCA Canada Inc. (Chrysler) to sign an indemnity against potential tax liabilities arising from the distribution of Cost Award Funds from prior Quebec litigation.

FFMP also sought payment of Chrysler's share of tax advice costs and FFMP's motion expenses.

Chrysler opposed, arguing FFMP breached an undertaking to pay without conditions and had no right to deduct costs.

The court found FFMP's requests for indemnity and cost deductions reasonable and consistent with the Plan's intent and the court's broad discretion under section 11 of the CCAA.

The court allowed FFMP's motion and dismissed Chrysler's cross-motion, ordering Chrysler to comply with FFMP's demands before receiving its pro rata share of the Cost Award Funds.

The plaintiffs purchased a property that had been previously owned and remediated by the defendant, Chrysler.

The plaintiffs sued Chrysler for negligence and negligent misrepresentation, alleging inadequate remediation and reliance on public statements made by Chrysler about the clean-up.

Chrysler moved for summary judgment.

The court granted the motion, finding that caveat emptor applied, Chrysler owed no duty of care to a subsequent purchaser, and there was no special relationship or reasonable reliance to support a claim for negligent misrepresentation.

The appellants sought to amend their statement of claim to add a claim in nuisance against the respondent for failing to properly remediate contaminated land before selling it.

The motion judge denied the amendment, finding that a nuisance claim requires the interference to originate from outside the plaintiff's land.

The Court of Appeal upheld this decision, confirming that an essential characteristic of the tort of nuisance is that the alleged nuisance must emanate from somewhere other than the plaintiff's own land.

The appeal was dismissed.

The plaintiff insurance brokerage sought an interim interlocutory injunction restraining former employee producers and their new employer from soliciting or dealing with certain customers pending a full motion hearing.

The court applied the three‑part test from RJR–MacDonald for interlocutory injunctions.

While there appeared to be a strong prima facie case against one former employee, the evidence against the others was largely speculative, and the alleged harm was found to be quantifiable through damages given the nature of the brokerage business.

Considering the balance of convenience, delay by the plaintiff, and the availability of undertakings proposed by the defendants, the court declined to grant the requested interim injunction and instead accepted undertakings pending the return of the motion.

The plaintiffs brought a motion to adjourn an eight‑week civil trial scheduled on the running list while appeals were pending concerning a refusal to amend the statement of claim and to admit late expert valuation reports.

The defendants opposed the adjournment, arguing the appeals would not materially affect the trial and proposing procedural alternatives such as hearing evidence and awaiting appellate outcomes or bifurcating liability and damages.

Applying the principles governing adjournments, including the objective of deciding matters on their substantive merits and considerations of prejudice and fairness, the court found the pending appeals could significantly affect the pleadings and expert evidence at trial.

The court concluded that proceeding before those issues were resolved risked inefficient and potentially unfair proceedings.

The trial was therefore adjourned pending the appellate process.

The plaintiffs sought leave to amend their Fresh As Amended Statement of Claim to add a claim in nuisance against a defendant related to environmental contamination of a former foundry property, and to increase damages claimed.

They also sought leave to file late expert appraisal reports relating to alleged “stigma damages.” The court held that the proposed nuisance claim was not legally tenable because the alleged contamination originated on the plaintiffs’ own property and was caused by prior operators, not the defendant’s conduct.

The court further found that permitting the late expert reports would cause undue delay and prejudice, as the reports were served more than two years after the pre-trial conference and shortly before a lengthy scheduled trial.

Leave to amend the pleadings to add the nuisance claim and to file the expert reports was denied, although minor amendments to increase the damages amounts were granted on consent.

The applicants brought a motion for contempt against a respondent who had previously been declared a vexatious litigant and permanently enjoined from communicating with or publishing commentary about the applicants.

The applicants filed extensive electronic materials demonstrating continued communications and publications alleging misconduct and bribery by judges and law enforcement officials involved in the earlier proceedings.

The court considered whether the respondent’s conduct was intentional and whether mental health issues might affect her ability to form the requisite intent for contempt.

Pursuant to s. 105 of the Courts of Justice Act, the court ordered a psychiatric assessment before determining liability and sentencing.

Costs were reserved pending completion of the assessment.

The appellant appealed orders declaring her a vexatious litigant, arguing she was denied natural justice because the motion judge concluded the hearing in the morning despite a full day being scheduled.

The Court of Appeal dismissed the appeal, finding the motion judge provided the appellant ample opportunity to present her case, including adjourning to read her 94-page written submissions and allowing her to answer questions and make further submissions.

The court noted the appellant never indicated what further submissions she wished to make.

Following a successful motion by the moving party in a proceeding under the Business Corporations Act (Ontario), the court addressed the appropriate quantum and scale of costs.

The successful party sought substantial indemnity costs.

The court held that substantial indemnity costs are exceptional and reserved for rare cases involving outrageous litigation conduct, which was not established.

Applying Rule 57 of the Rules of Civil Procedure and the fairness principles articulated by the Court of Appeal, the court reduced the requested amount due to duplication of effort and counsel learning time following a change of lawyers.

A respondent brought a motion to stay or consolidate an application seeking enforcement of a “clawback” provision in a unanimous shareholders’ agreement pending determination of several related proceedings, including a wrongful dismissal action and oppression claims.

The court considered the principles under the Courts of Justice Act and Rule 6.01 of the Rules of Civil Procedure governing consolidation and avoidance of multiplicity of proceedings.

The court found that the issues raised in the clawback application were inextricably intertwined with the issues in the related proceedings, including allegations of oppression, breach of the shareholders’ agreement, and the consequences of changes in employment status.

Separate adjudication would risk duplication of evidence, inconsistent findings, and inefficient use of judicial resources.

The motion was granted and the application was ordered to be heard together with the related proceedings.

The appellant leased a water heater from the respondent.

The respondent proposed an amendment to the rental agreement requiring customers to deal directly with the respondent to terminate the agreement, rather than using an agent.

The appellant sought a declaration that the amendment was invalid under the Consumer Protection Act.

The Court of Appeal held that the amendment did not comply with the Regulation because the right to terminate was not unconditional.

However, the Court upheld the application judge's decision to invoke s. 93(2) of the Act, binding the appellant to the amendment, as the application was brought for a collateral purpose to benefit a competitor and no consumer was prejudiced.

The appellant, a former vice-chair and major shareholder of the respondent, entered into a retirement agreement and a settlement agreement that fixed the buyout price of his shares at US$5.21.

He later sued for negligent misrepresentation, alleging the respondent failed to disclose a recapitalization plan that ultimately valued the shares at US$10.06.

The Court of Appeal dismissed the appeal, finding that the alleged misrepresentations were immaterial because the appellant's share price was contractually crystallized, he suffered no damages, and the action was barred by a full and final release.