Barry Weintraub

Following a trial on damages in a commercial dispute involving mall tenancy losses, the court issued supplementary reasons correcting calculation errors in the damages previously awarded.

The correction increased the total damages to $580,600.63 after identifying an arithmetic mistake relating to losses associated with inducing a replacement anchor tenant.

The parties jointly agreed to prejudgment interest under the Courts of Justice Act at a rate of 2.8%, resulting in prejudgment interest of $352,973.37 to January 15, 2026.

The plaintiffs’ remaining claims for damages were dismissed.

Costs were left to be determined following written submissions.

The plaintiffs sought damages and declarations regarding environmental contamination at 65 Heward Avenue.

The defendants moved to strike the plaintiffs' amended statement of claim under Rule 21.01(1)(b) for disclosing no reasonable cause of action, arguing that the plaintiffs knew of the contamination upon purchase, the limitation period had expired, and the claim lacked sufficient particulars for negligence, strict liability, and statutory claims under the Environmental Protection Act.

The court dismissed the motion, finding that the defendants were not barred by delay or pleading over, the plaintiffs' knowledge of contamination was not fatal, the limitation period issue required evidence, and the claim provided sufficient particulars for all causes of action, including novel applications of strict liability.

Vista owned a shopping mall and leased space to Zellers, which operated a retail store.

Zellers notified Vista in February 2004 of its intention to cease operations in May 2004, although the lease did not terminate until April 2005.

Vista sued, claiming Zellers was obliged under "continuous use" clauses in the lease to operate until the lease ended.

The trial judge found that Zellers was entitled to close when it did, interpreting the continuous use obligation as qualified by the hours of operation clause.

The Court of Appeal reversed, holding that the continuous use obligation in sections 8.01 and 8.05 was not overridden by the hours of operation clause in section 8.01.1, and that Zellers breached its obligation by closing prematurely.

The appellant purchased a commercial property that was contaminated by hydrocarbons that had migrated from an adjacent former gas station property.

The respondents moved for summary judgment to dismiss the action as statute-barred under the Limitations Act, 2002, arguing that the appellant knew or ought to have known of the contamination more than two years before commencing the action.

The motion judge granted the motion, finding that the appellant had knowledge of the claim by March 9, 2012, or alternatively by March 30, 2012.

The Court of Appeal allowed the appeal, finding that the motion judge made palpable and overriding errors by equating the appellant's suspicion of contamination with actual knowledge of contamination, and by failing to consider the relevant circumstances of the multi-property transaction and the waiver of conditions.

The plaintiff sought summary judgment alleging constructive dismissal after the employer reorganized its transportation department and reassigned her from an operational engineering role to a largely administrative position while maintaining the same salary and title.

The court applied the constructive dismissal framework from Potter v. New Brunswick Legal Aid Services Commission and assessed whether a reasonable person would view the changes as substantially altering essential terms of employment.

It found that the reassignment fundamentally changed the nature and quality of the plaintiff’s duties from technical operational work to administrative functions, effectively eliminating the role she had performed for decades.

The court concluded that the employer’s unilateral change amounted to constructive dismissal.

Applying the Bardal factors, the court awarded 26 months’ reasonable notice and rejected the employer’s argument that the plaintiff failed to mitigate.

The defendants brought a motion for summary judgment dismissing an action alleging environmental contamination of the plaintiff’s property by petroleum hydrocarbons migrating from a neighbouring former gas station site.

The defendants argued the claim was statute‑barred under the Limitations Act because it was commenced more than two years after the claim was discoverable.

The court held that the plaintiff knew or ought reasonably to have known of the material facts supporting a claim by March 2012 through environmental investigations conducted during its due diligence period.

The later Phase II environmental report merely confirmed suspicions already known.

The court also rejected the argument that ongoing contamination constituted continuing damage that created a new limitation period due to lack of evidence of fresh damages.

Summary judgment was granted dismissing the action as out of time.

Following reasons awarding damages for wrongful dismissal, the parties were unable to agree on the calculation of the formal judgment.

The court addressed disputes regarding whether a car allowance formed part of total compensation, whether the damages award should be discounted to reflect net present value, and the proper quantum of costs.

The court held that the car allowance was included in the plaintiff’s total compensation as previously found in the reasons.

It rejected the employer’s argument that the award should be discounted for net present value, confirming that pay in lieu of notice represents damages for breach of the employment contract payable immediately.

The court also declined to vary the previously fixed costs award.

The defendant brought a motion to remove the plaintiff's lawyer of record, who was also the plaintiff's sister.

The underlying action involved allegations of professional negligence and breach of fiduciary duty against the defendant lawyer regarding a franchise purchase.

The defendant argued that the plaintiff's lawyer was present at a critical meeting where the documents were executed and independent legal advice was allegedly waived, making her a necessary witness.

Applying the Essa factors, the court found a strong likelihood that the lawyer would be called as a witness on highly contentious credibility issues.

The motion was granted and the lawyer was removed from the record.

The plaintiff, Bank of Montreal, brought a motion under Rule 37.14 to set aside a registrar's dismissal order.

The action, which involved allegations of a complex mortgage fraud, had been dismissed for delay after the plaintiff missed a court-ordered deadline to set the action down for trial.

Applying the Reid factors contextually, the Master found that the plaintiff had adequately explained the delay, demonstrated inadvertence in missing the deadline, moved promptly to set aside the order, and rebutted the presumption of prejudice.

The motion was granted and the dismissal order was set aside without costs.