Bradley Emil Berg

The appeal concerned whether post-closing transactions triggered accelerated earn-out payment obligations under a share purchase agreement.

The court deferred to the application judge’s contractual interpretation and factual findings, concluding no trigger event requiring immediate full earn-out payment had been established.

The appeal was dismissed.

Air Canada challenged the Ontario Minister of Finance’s decision to deny repayment of taxes levied under s. 2(4.1) of the Gasoline Tax Act on fuel transfers at the Ottawa airport.

Air Canada argued the tax was constitutionally inapplicable under the doctrines of interjurisdictional immunity and territorial jurisdiction.

The court held that the tax does not trench on or impair the core of federal aeronautics jurisdiction and that the transaction had a sufficient connection to Ontario to ground the province’s jurisdiction.

The applications were dismissed.

EF Institute for Cultural Exchange Limited (EF) appealed a summary judgment dismissing its claims against its former president, David Conklin, and WorldStrides Canada, Inc. (WorldStrides).

EF alleged breaches of a Confidential Information clause and a Restrictive Covenant by Conklin, and knowing assistance/inducing breach by WorldStrides, after Conklin joined WorldStrides following his termination from EF.

The Court of Appeal upheld the motion judge's decision, finding no actionable breach of confidentiality or non-compete obligations, and that the claims had dwindled to a "corporate grudge match" not warranting further litigation.

The appeal was dismissed with costs.

The appellant, Skyline Real Estate Acquisitions (III) Inc., appealed a lower court decision that dismissed its application for the return of a $3.25 million deposit.

Skyline had refused to close on an agreement to purchase two shopping plazas, alleging the vendor (Peterborough Retail Portfolio LP) failed to satisfy conditions related to key tenant tenancies (Walmart and Dollarama).

The Court of Appeal upheld the application judge's finding that the vendor had made commercially reasonable efforts and provided substantial assurances, while the purchaser failed to act reasonably and in good faith by insisting on strict technical compliance to exit a contract it no longer desired.

The appeal was dismissed, and the respondent was awarded costs.

This decision concerns the determination of costs following the dismissal of the plaintiff's action on a motion for summary judgment.

The defendants, as the successful party, sought costs of $180,753.95, while the plaintiff had initially outlined costs of $55,053.66 if successful.

The court applied the principle that costs should be fair and reasonable for the unsuccessful party to pay, rather than the actual costs incurred by the successful party.

Despite the defendants' complete success and a Rule 49 offer, the court found their claimed costs to be excessive, partly due to the number of lawyers involved and potential overpreparation.

The court awarded the defendants $65,000.00, inclusive of fees, HST, and disbursements.

The defendants, Chris Schoonderwoerd and National Bank Financial, brought a motion to stay an action commenced by Edward Jones in Ontario on the basis of forum non conveniens.

Edward Jones alleged that Schoonderwoerd, a former investment advisor, breached non-solicitation and non-disclosure terms of his employment contract, with the assistance of National Bank Financial.

The court acknowledged jurisdiction in Ontario but found Alberta to be the clearly more appropriate forum, considering the location of parties, performance and alleged breach of contract, and the vast majority of relevant witnesses.

The motion to stay the Ontario proceedings was granted.

Nexen Energy commenced identical actions in Alberta and Ontario against ITP SA for damages arising from a pipeline rupture.

While the Purchase Order specified Ontario as the exclusive dispute resolution forum, ITP SA defended the Alberta action and sought to use the Ontario forum selection clause to have a discrete issue of law (interpretation of liability limits) adjudicated in Ontario via a Rule 21 motion before the Ontario action was stayed.

Nexen Energy moved to stay its own Ontario action.

The Master found "special circumstances" overriding the forum selection clause, preventing ITP SA from "slicing and dicing" the case.

The Master granted Nexen Energy's motion, permanently staying the Ontario action, and directed ITP SA's motion to Alberta, citing judicial economy, efficiency, and consistency, given the active case management in Alberta and the multi-party nature of the dispute.

The City of Toronto sought a declaration that Cloverdale Mall Inc. owned and was responsible for the maintenance of a bridge over the East Mall, or alternatively, if the City owned it, that it had the right to demolish it.

The bridge was built by Cloverdale's predecessor after land expropriation for Highway 427, with the province reimbursing construction costs.

The Minutes of Settlement from 1972 were silent on bridge ownership and maintenance.

Applying principles of contractual interpretation, the court found that the parties intended Cloverdale to own and maintain the bridge, as it served Cloverdale's private interests and the City's obligations were extinguished upon payment for construction.

The court also rejected the argument that the bridge was a fixture to City land, as its purpose was to enhance Cloverdale's property, not the City's.

The application was granted in favour of the City, with costs fixed against Cloverdale.

The plaintiff appealed a master's order dismissing its motion for a court‑imposed discovery plan under the Rules of Civil Procedure.

The appellant argued that a discovery plan was necessary to prevent delays and costs arising from refusals and undertakings during examinations for discovery.

The court held that the master applied the correct legal principles and exercised her discretion appropriately, noting that the pleadings were not finalized and that the appellant had made insufficient efforts to reach agreement on a discovery plan with the opposing parties.

The court also confirmed that jurisprudence does not require a master to impose a discovery plan whenever parties cannot agree, but instead grants discretion based on the circumstances.

Finding no palpable and overriding error or error in principle, the appeal was dismissed.

The moving defendants brought a Rule 22 motion seeking determination of whether Ontario or Alberta law governed the plaintiff’s contractual and tort claims arising from a fire allegedly caused by a defective fryer and oven system supplied to an Alberta poultry processing plant.

The parties agreed that if Alberta law governed the tort claims, the claims would be statute‑barred under Alberta’s ultimate limitation period.

Applying the lex loci delicti rule from Tolofson v. Jensen, the court held that Alberta law governed the tort claims because the damage occurred in Alberta, and therefore those claims were dismissed as statute‑barred.

However, applying the “closest and most real connection” test for contractual choice of law, the court found the contract was most closely connected to Ontario, where the system was designed and supplied.

Ontario law therefore governed the contractual claims.

Following certification of a national class proceeding and dismissal of defendants’ summary judgment motions, the court determined costs arising from the certification and related motions.

The court applied Rule 57 of the Rules of Civil Procedure and principles governing costs in class proceedings, including fairness, reasonable expectations of the parties, and the access to justice objectives of the Class Proceedings Act, 1992.

The litigation involved extensive evidence, numerous defendants, and complex factual and legal issues affecting approximately 10,000 class members with alleged losses approaching $150 million.

The court rejected requests for substantial indemnity costs and declined to refer costs to formal assessment, instead fixing costs directly.

Significant partial indemnity costs and disbursements were awarded to the plaintiff, apportioned among the defendant groups.