Catherine M. Patterson

The appellants, investors in a failed real estate redevelopment project, appealed the dismissal of their claims for rescission and damages against the promoter, Shelter Corporation.

The trial judge found that Shelter breached numerous contractual commitments, causing the loss of the investment, but held that rescission was unavailable and no damages were proven because the project was too heavily leveraged to survive the market downturn.

The Court of Appeal upheld the trial judge's findings that the breaches were not fundamental and that the appellants had not proven substantial damages.

However, the Court allowed the appeal to the limited extent of awarding nominal damages of $1 to each appellant for the proven breaches of contract.

A cross-appeal by the financial institutions regarding equitable set-off and penalty interest rates was dismissed.

The respondent brought a motion requesting the Court of Appeal reconsider its decision not to order a trial on whether a right of first refusal was extended by oral agreement.

The court dismissed the request for reconsideration, finding no evidence of an oral agreement specifically addressing the extension of the right of first refusal.

However, the court clarified its previous order to specify that paragraph 4 of the application judge's judgment was not set aside, as it had not been appealed.

The court also granted a temporary stay of its judgment pending the disposition of the respondent's leave application to the Supreme Court of Canada and granted leave to register a certificate of pending litigation against the property.

The moving party requested a reconsideration of the Court of Appeal's judgment released on November 16, 2005.

The Court agreed to hear oral submissions on the request.

The Court ordered that the judgment be temporarily stayed pending the disposition of the reconsideration motion, allowing the endorsement to be registered on the title of the property in issue.

The appellants appealed a decision granting the respondent specific performance of a right of first refusal contained in a charge on a farm property.

The application judge had found that the right of first refusal survived the balance due date of the charge.

The Court of Appeal allowed the appeal, holding that the application judge erred in interpreting the term of the charge.

The Court concluded that the right of first refusal expired on the balance due date and was not binding when the property was subsequently offered for sale.

The appellant appealed a trial judgment awarding damages for unpaid commissions, computer use, and the Infranor contract.

The Court of Appeal dismissed the appeal, finding that the claim was for unpaid commissions rather than loss of profits, the respondent had paid for computer use, and the trial judge's conclusion regarding the Infranor contract was open to him on the record.

The appeal was dismissed with costs.

The appellant appealed a trial judgment to the Court of Appeal.

The Court of Appeal determined that the trial judge's order was for a single payment of not more than $25,000, exclusive of costs.

Consequently, the appeal fell within the monetary jurisdiction of the Divisional Court, and the Court of Appeal ordered the matter transferred there with no costs.

The Court of Appeal amended its previous endorsement to provide that the costs of the trial are to be decided by the judge presiding at the new trial.

The court noted that the existence of offers to settle should have been brought to its attention when judgment was given orally.

The new trial judge will be in a position to determine the appropriate application of Rule 49.10 in light of the determination of damages.

The appellant appealed a trial judgment regarding his constructive dismissal claim.

The trial judge found that if the appellant had agreed to relocate to St. Catharines, his working conditions would not be substantially different from those in Simcoe.

The Court of Appeal held that the trial judge erred, as the relocation would require three hours of daily commuting and significant out-of-pocket driving costs, making the working conditions and net remuneration substantially different.

The appeal was allowed, the cross-appeal on constructive dismissal was dismissed, and a new trial was ordered to determine damages.

The appellants challenged the trial judgment dismissing their medical negligence claim arising from a death allegedly caused by negligent treatment.

The Court of Appeal held that uncertainty as to the medical cause of death did not shift the burden of proof on causation to the defendants, and the plaintiffs remained required to establish a sufficient causal link on the whole of the evidence.

The court found no palpable basis to interfere with the trial judge’s factual findings and rejected the argument that the trial should have been reopened for further causation evidence.

The appeal was dismissed with costs.