B. Sells

The appellant appealed a Small Claims Court judgment regarding a software license agreement dispute.

The trial judge had found that the appellant fundamentally breached the agreement by failing to provide software support and training at no extra cost, relying on the respondent's subjective expectations and prior conduct.

The Divisional Court allowed the appeal, finding that the trial judge made several extricable errors of law by failing to apply proper principles of contractual interpretation, including ignoring the express language of the written agreements and the entire agreement clause.

A new trial was ordered.

Following dismissal of a plaintiff’s appeal from a master's order, the court determined the issue of costs.

The appellant failed to provide written costs submissions despite being granted additional time to do so.

The respondents sought substantial indemnity costs, while also claiming partial indemnity costs.

The court concluded that the appeal had been pursued in an unnecessarily aggressive and overly technical manner, requiring additional work by the respondents.

Costs were awarded against the appellant on a reduced partial indemnity basis.

The plaintiff appealed a Master's order that set aside an amended statement of claim delivered while the defendants' motion to strike was outstanding.

The plaintiff had aggressively sought default judgments without notice despite knowing the defendants were represented and actively defending.

The court upheld the Master's reliance on the established practice requiring leave or consent to amend a pleading in the face of a motion to strike.

The court also noted that the Rules of Professional Conduct must be read with the Principles of Civility, and adopting technical interpretations of the Rules of Civil Procedure to deny a represented defendant the right to be heard is not condoned.

The appeal was dismissed.

On an ex parte application under s. 3 of the Bulk Sales Act, the applicants sought an exemption from the Act for a financing transaction involving the sale of certain equipment leases and related assets to a limited partnership.

The court considered whether the transaction constituted a “sale in bulk” outside the ordinary course of business.

While expressing doubt that the transaction fell within the type of asset disposition targeted by the Act, the court proceeded to analyze the exemption request.

Finding that the transaction would be advantageous to the applicants and would not impair their ability to pay creditors, the court granted the exemption for the proposed transaction only.

The court declined to grant any blanket exemption for future transactions and directed that any subsequent application be brought on notice to the Attorney General of Ontario.