Bruce Jaeger

The plaintiff electrical contractor sued the defendant property managers for unpaid invoices relating to electrical services and energy-efficient lighting installations.

The defendants claimed set-off and brought a separate action against the plaintiff and its principal for fraudulent or negligent misrepresentation, alleging defective work, failure to secure energy rebates, and uncertified fixtures.

The court found the plaintiff was entitled to $123,339.06 for unpaid invoices.

The defendants' set-off claims were dismissed as they failed to prove the plaintiff breached its contract or caused the alleged damages.

The defendants' separate action was dismissed as statute-barred under the Limitations Act, 2002, and the court declined to pierce the corporate veil to hold the plaintiff's principal personally liable.

Following the dismissal of the appellant's appeal regarding an expired construction lien, the respondent sought costs of $30,470.28 on a substantial indemnity scale.

The court declined to award substantial indemnity costs, noting the respondent could have acted to mitigate prejudice from the appellant's delay.

The court also reduced the quantum, finding the time spent excessive for a narrow issue and rejecting a disbursement claim for computerized legal research that appeared to be a profit centre for counsel.

Costs were fixed at $15,000 on a partial indemnity scale.

The appellant appealed an order of a master dismissing its construction lien claim but allowing the underlying action to continue.

The lien was perfected in 2011 and referred to the master for trial in 2013, but no further steps were taken until 2017.

The master found the lien had expired under s. 37(1) of the Construction Lien Act because no order fixing a specific trial date was made within two years of perfection.

The Divisional Court upheld the master's decision, confirming that a general order referring the matter to a master for trial under s. 58(1) does not satisfy the requirement of s. 37(1) to set a trial date under s. 60(1).

The appeal was dismissed.

The Plaintiff moved to remove the Defendants' solicitors of record, Dickinson Wright LLP, on grounds of conflict of interest.

The Plaintiff argued that one of the firm's partners, Douglas A. Hendler, was a defendant and a crucial witness whose credibility was likely to be an issue, compromising counsel's independence.

The Defendants contended the motion was tactical and that law firms can represent themselves in fee disputes.

The court dismissed the motion, finding the conflict did not raise a serious concern given the nature of the dispute being essentially over fees, and that it would not prejudice the Plaintiff.

Costs were awarded to the Defendants.

The respondent brought a motion requiring the applicants to post security for costs and pay outstanding costs awards before proceeding with their application regarding a hotel development dispute.

The court found that the respondent was prima facie entitled to security for costs under Rule 56.01 and that the applicants failed to establish impecuniosity or a real possibility of success.

The court ordered the applicants to pay $22,748.74 in outstanding costs and post $50,000 in security for costs within 30 days, staying the application until compliance.

The plaintiff was entirely successful in defeating the defendant's motion for security for costs.

The plaintiff sought costs of $21,200 on a substantial indemnity basis, while the defendant argued the parties should bear their own costs or costs should be in the cause.

The court found no basis for substantial indemnity costs and noted the plaintiff's time expenditure was somewhat excessive.

Costs were fixed at $11,000 inclusive of HST payable forthwith.

A commercial property owner sought reimbursement from a real estate brokerage for marketing and advertising expenses incurred after retaining a third-party marketing firm during a listing agreement.

The owner argued the agreement required the brokerage to bear marketing and promotional costs.

The court interpreted the agreement in light of the factual matrix and commercial reasonableness, emphasizing that external marketing costs were subject to mutual agreement and that the brokerage was engaged primarily to sell or lease real estate, not to underwrite independent marketing initiatives.

The court also considered the owner's subsequent conduct, including retaining a marketing firm without consultation and raising the reimbursement claim only after receiving a demand for signage costs.

The court concluded that the agreement did not obligate the brokerage to reimburse the owner for the claimed expenses.

The defendant appealed the trial judge's decision to grant a non-suit dismissing its third-party claim against the plaintiff's son.

The plaintiff, a 92-year-old woman, was injured when she slipped on ice outside her apartment building after her son dropped her off.

The defendant argued the son owed a duty of care based on his past habit of assisting her.

The Divisional Court upheld the trial judge's finding that there was no factual foundation to impose a legal duty of care on the son, as the mother was an independent person capable of caring for herself, and voluntary past assistance does not create a legally binding duty.

Following the sudden death of a successful furniture manufacturer, his common-law spouse and his daughters from a previous marriage engaged in extensive litigation.

The spouse, who operated her own furniture business from the same premises as the deceased's failing company, sued the daughters, the estate, and various professional advisors for breach of contract, civil conspiracy, and unlawful interference with economic relations after the deceased's company was placed into bankruptcy and her access to equipment was interrupted.

The court dismissed the conspiracy and interference claims, finding the defendants acted reasonably to manage the insolvency, but awarded the spouse $72,520 for breach of a handwritten lease and equipment agreement.

In related applications, the court upheld a change of life insurance beneficiary executed by the deceased before his death and enforced the terms of a cohabitation agreement, allowing the spouse to remain in the family home and ordering the estate to pay $84,106.25 for property maintenance and capital expenses.

A bankrupt applied for an absolute discharge nearly nine years after being adjudged bankrupt under the Bankruptcy and Insolvency Act.

Creditors and the trustee opposed an unconditional discharge, alleging the bankrupt failed to satisfactorily account for significant pre‑bankruptcy assets and had not fully disclosed financial information.

The court found the bankrupt had not adequately explained the disappearance of substantial assets including cash, RRSPs, securities, and real property, engaging s. 173(1)(d) of the Bankruptcy and Insolvency Act.

The court also found the bankrupt had remained voluntarily unemployed while living comfortably through financial support from family.

While the court concluded the bankruptcy itself arose from circumstances for which the bankrupt was not justly responsible, the failures of disclosure and conduct during bankruptcy warranted a conditional discharge requiring payment to the estate.

The court determined the appropriate costs award following interlocutory motions in a corporate dispute involving alleged diversion of corporate resources and denial of shareholder access to financial information under the Business Corporations Act.

The moving parties sought substantial costs including full indemnity reimbursement for accounting consultants retained to analyze financial records.

The court held that the moving parties were the more successful parties on the motions and were entitled to costs on a partial indemnity basis.

While the accounting services were reasonably incurred to assist in analyzing financial disclosure, they were treated similarly to legal services and not recoverable on a full indemnity basis.

The court reduced the claimed partial indemnity costs by 25% to reflect the moving parties’ lack of success on certain requested relief and ordered costs payable personally by two respondents rather than the corporation.

The plaintiffs, minority shareholders in a cement contracting business, brought a motion for interim relief in an oppression action, alleging the majority shareholder misappropriated corporate funds for personal use.

The defendants brought a cross-motion to compel mandatory mediation and arbitration and to discharge a Certificate of Pending Litigation (CPL) registered against the majority shareholder's spouse's home.

The court granted the plaintiffs' motion in part, appointing a monitor and requiring board approval for major decisions, while leaving day-to-day management with the majority shareholder.

The defendants' motions were dismissed, as the shareholders agreement did not mandate arbitration and the CPL was validly maintained to protect the corporation's constructive trust claim.

During a commercial trial involving allegations of fraud and conspiracy related to the declaration of a corporate dividend, the court ruled on an objection to expert testimony.

Defence counsel argued the plaintiff’s expert sought to give opinions not contained in previously served expert reports contrary to Rule 53.03 of the Rules of Civil Procedure.

The court held that an expert may explain or amplify matters latent in a report and allowed testimony on whether the dividend complied with statutory requirements under the Business Corporations Act, finding the issue sufficiently addressed in the reports.

However, the court prohibited testimony regarding what due diligence the accountant should have undertaken, as that issue was not contained in the expert reports or pleaded in the claim and would cause prejudice to the defence.

The appellants, two insurance companies, appealed a declaration that the respondents were entitled to coverage under an automobile insurance policy.

The insurers argued that the application judge erred in her interpretation of a policy exclusion for a 'race' or 'speed test'.

The Court of Appeal dismissed the appeal, finding that the application judge correctly applied the rule that insurance contracts are to be strictly and narrowly interpreted.

Furthermore, there was ample evidence to support the conclusion that the insured was participating in a driver education program to improve driving skills, rather than engaging in a speed test.

The moving party sought an extension of time and leave to appeal a costs order following the consent dismissal of a long-standing action.

The motions judge had initially awarded costs to the moving party but, after receiving submissions on quantum, ordered no costs payable by either party.

The moving party argued a denial of natural justice.

The Divisional Court determined it lacked jurisdiction to hear the motion, as the costs claimed were $125,000, exceeding the $50,000 limit for Divisional Court jurisdiction under the Courts of Justice Act.

The motion was adjourned to the Court of Appeal.

The applicant filed a human rights application against his former employer, a moving and delivery business.

The respondent requested the application be dismissed on the basis that it is a federally regulated business.

The Tribunal issued a Notice of Intent to Dismiss and received written submissions.

The Tribunal found that the respondent operates an inter-provincial and international moving business, placing it under federal jurisdiction pursuant to s. 92(10)(a) of the Constitution Act.

As the Tribunal lacks jurisdiction over federally regulated employers, the application was dismissed.

The appellants appealed an order approving the sale of shares by the trustee in bankruptcy.

The Court of Appeal dismissed the appeal, finding it unnecessary to determine whether a meeting of the inspectors was a prerequisite.

The court held that the motion judge had discretion under s. 37 of the Bankruptcy and Insolvency Act to approve the sale and saw no reason to interfere with the motion judge's weighing of the relevant factors.

The appellant landlord appealed a decision finding that it had unreasonably withheld consent to the assignment of a commercial lease.

The application judge found as a fact that the landlord's sole interest in refusing consent was to secure a higher rent because the current rent was below market value.

The Court of Appeal dismissed the appeal, holding that this finding of fact was open to the application judge, though it noted that a demand for a rent increase is not always an unreasonable response to an assignment request.

The defendant brought a motion for leave to appeal a partial summary judgment of $985,634.54 granted in favour of the plaintiff mortgagee.

The partial judgment was based on alternative claims of unjust enrichment and equitable subrogation for funds used to discharge existing debts on the defendant's property.

The defendant argued that granting partial summary judgment constituted an election by the plaintiff to abandon its claim for the entire mortgage debt.

The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the motions judge's decision that partial summary judgment is not an election.

Leave to appeal the costs award was also denied.

The landlord appealed a Small Claims Court judgment awarding the tenant $5,500 and costs.

The dispute centered on whether the landlord could require the tenant to replace its sign due to a change in the plaza's sign policy, despite a lease provision expressly approving the existing sign.

The Divisional Court upheld the trial judge's interpretation that the approval lasted for the duration of the lease and found no error in the costs award.

The appeal was dismissed.