Cheryl Gerhardt McLuckie

This addendum to reasons for decision addresses a request by the defendant, Fraser Hillary’s Limited, to present supplementary submissions concerning compensation under s. 99 of the Environmental Protection Act, citing the Court of Appeal decision in McCann v. Environmental Compensation Corp. The court declined the request, affirming the principle of finality and finding that the issue did not warrant reconsideration.

The court also clarified its prior finding that applying s. 99(2) was not retroactive and questioned the applicability of McCann to the present case.

The plaintiff property owner sued the adjacent dry cleaning business and its principal for environmental contamination caused by the migration of dry cleaning solvents (PCE/TCE) onto his lands.

The court dismissed claims in trespass, strict liability, and negligence, but found the corporate defendant liable in private nuisance and under section 99 of the Environmental Protection Act.

The individual defendant was not found liable as he did not own or control the pollutant at the time of the spills and his subsequent inaction did not cause the plaintiff's damages.

The court awarded the plaintiff $1,632,500 for remediation costs and $201,726.71 for engineering expenses.

Following a trial where the plaintiff had mixed success on a construction lien claim and failed on a breach of trust claim, both parties sought costs.

The court found equal success on the lien action, as the plaintiff proved the value of his claims but the defendant established the lien was registered out of time, resulting in no costs for either party.

The defendant was awarded $10,000 in costs for successfully defending the meritless breach of trust claim.

This trial involved two consolidated actions: a construction lien claim by S & L Mechanical for unpaid invoices and a breach of trust claim against Robert Dompierre, the former president of Lexus Mechanical Inc. The court found that S & L's construction lien was not registered in a timely manner and had expired.

The breach of trust claim against Dompierre was also dismissed as it was commenced outside the two-year limitation period, as the plaintiff knew or ought to have known of the loss much earlier.

However, the court determined the amounts owing to S & L from Lexus Mechanical Inc. (which was bankrupt but continued by order) and allowed certain set-offs claimed by Lexus for incomplete work by S & L. Ultimately, S & L was awarded a net judgment against Lexus Mechanical Inc.

The plaintiff sued the defendants for environmental contamination of his properties caused by dry cleaning chemicals originating from the adjacent property owned by the corporate defendant.

The individual defendant, who owned another adjacent residential property, moved for summary judgment dismissing the claims against him in negligence, nuisance, trespass, and statutory liability.

The court dismissed the motion, finding that genuine issues for trial existed because determining the individual defendant's liability required a comprehensive understanding of complex and evolving expert opinions regarding the source and migration of the contaminants, which necessitated oral testimony and cross-examination at trial.

The defendant bank sought leave to appeal to the Divisional Court from an order certifying a class proceeding arising from unauthorized access to customer information by a bank employee.

The proposed appeal challenged the class definition, the certification of a waiver of tort claim, and the certification of claims for non‑pecuniary damages in negligence and contract without proof of psychiatric injury.

The court held that the certification judge had applied the correct low threshold applicable at the pleadings and certification stage and that the bank had not shown conflicting authority or good reason to doubt the correctness of the order under Rule 62.02(4) of the Rules of Civil Procedure.

The court further held that the class definition was not impermissibly over‑inclusive and that the waiver of tort issue met the “some basis in fact” standard for certification.

Leave to appeal was therefore refused.

The plaintiffs sought certification of a class proceeding against a bank and a former employee who improperly accessed customers’ confidential financial information and disclosed it to third parties, leading to identity theft and fraud affecting numerous customers.

The court considered the requirements for certification under s. 5(1) of the Class Proceedings Act, 1992, including whether the pleadings disclosed causes of action such as negligence, breach of contract, intrusion upon seclusion, vicarious liability, and waiver of tort.

The court held that several pleaded claims disclosed viable causes of action and that the proposed class of 643 customers whose information had been accessed constituted an identifiable class.

The court further found that the issues of negligence, breach of contract, vicarious liability for intrusion upon seclusion, and waiver of tort raised common issues and that a class proceeding was the preferable procedure for resolving them.

The proposed representative plaintiffs were found to be suitable and capable of advancing the litigation.

Following the dismissal of a corporate plaintiff’s claim on summary judgment arising from a failed commercial real estate transaction, the court determined the appropriate allocation and quantum of costs among multiple parties.

The defendants sought elevated costs relying on offers to settle and alleged litigation tactics by the plaintiff.

The court awarded enhanced costs to the defendants and held that the controlling individual behind the corporate plaintiff could be personally liable for costs by piercing the corporate veil.

The court also interpreted an indemnity clause signed by a corporate officer as creating joint personal liability for full indemnity costs to one defendant.

Various additional costs claims by other parties were dismissed.

This decision addresses costs arising from multiple motions in two related commercial actions involving contractual disputes and counterclaims between corporate parties.

The court evaluated costs under Rules 1.04(1.1) and 57 of the Rules of Civil Procedure, considering proportionality, complexity, success on the motions, counsel time and rates, and litigation conduct.

One party had obtained judgment without trial in the first action and succeeded on several motions, while the opposing party succeeded on certain procedural motions and defeated a motion to dismiss the second action based on a forum selection clause.

The court declined to award substantial indemnity costs and instead allocated partial indemnity costs reflecting divided success.

Specific cost awards were made payable between the parties depending on the particular motions and outcomes.

Montel brought a motion to strike the defendants' counterclaims and for judgment on unpaid invoices in Action No. 1.

The defendants sought to stay Action No. 1 and consolidate it with Action No. 2, which involved claims for breach of a distribution agreement.

Montel also moved to dismiss Action No. 2 based on a forum selection clause.

The court struck the counterclaims in Action No. 1 as duplicitous of claims in Action No. 2 and granted judgment to Montel for the unpaid invoices, refusing a stay.

The court dismissed Montel's jurisdictional motion, finding the validity of the agreement containing the forum clause was a triable issue.

Finally, the court allowed Kipawa to be added as a plaintiff in Action No. 2 but denied consolidation, ordering consecutive trials instead.

The respondent lessor sued the appellant lessee for damages arising from an oil spill from an above-ground storage tank.

The appellant brought a motion under Rule 21.01(1)(a) to determine whether the commercial lease contained a covenant by the respondent to insure against the loss, which would bar the action.

The motion judge found no such covenant and allowed the action to proceed.

On appeal, the Court of Appeal held that the jurisprudence was unsettled and it was not plain and obvious whether the lease contained such a covenant.

The court set aside the motion judge's determination on the covenant issue, leaving it for trial, but upheld the dismissal of the appellant's motion to dismiss the action.

The defendant commercial tenant brought a Rule 21 motion to determine a question of law, arguing that the commercial lease agreement allocated the risk of loss from an oil spill to the plaintiff landlord, thereby barring claims in negligence and contract.

The court reviewed the lease provisions and the Supreme Court of Canada trilogy on the allocation of risk in commercial leases.

The court found no clear language in the lease absolving the tenant of liability for its own negligence, nor any evidence the tenant paid increased insurance premiums.

The motion was dismissed, with the court also declining to dismiss the motion solely on the basis of the defendant's delay in bringing it.

The respondents brought a motion under Rule 59.06(2)(d) of the Rules of Civil Procedure to vary a previous judgment to include a declaration that the applicant had abandoned a portion of a right-of-way on the respondents' property.

The applicant opposed the motion, arguing the relief was not pleaded at trial.

The court found that the issue of the applicant's use of the right-of-way was fully canvassed at trial and that it was in the interest of justice to provide finality.

The court varied the judgment to declare the right-of-way abandoned, but granted the applicant an easement over a narrow strip to allow for inspection of her garage.

Following the defendant’s successful motion to strike the statement of claim and the plaintiffs’ unsuccessful motion to amend, the court determined the appropriate costs award.

The defendant sought substantial indemnity costs totaling more than $32,000, arguing the action resembled a strategic lawsuit against public participation (SLAPP) intended to silence complaints made to the Office of the Superintendent in Bankruptcy.

The court accepted that the defendant was entirely successful but held that the defendant’s original costs outlines represented a reasonable expectation of costs payable by an unsuccessful party.

Costs were therefore fixed partly on a partial indemnity basis and partly on a substantial indemnity basis, with additional costs for the action.

The court declined to add additional amounts for Quebec counsel or expanded claims beyond the original outlines.

The defendant brought a motion to strike the plaintiffs' statement of claim for defamation, arguing the impugned statements were protected by absolute privilege.

The statements were made in letters of complaint to the Office of the Superintendent of Bankruptcy regarding the conduct of the plaintiffs in their capacity as bankruptcy trustee and associate.

The court found that the Superintendent of Bankruptcy is a quasi-judicial body and that the complaints were protected by absolute privilege.

The court struck the statement of claim and denied the plaintiffs' motion for leave to amend, finding the proposed amendments were legally untenable.

The appellants appealed a trial judgment holding them liable in negligence and nuisance for water damage to the respondent's basement.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge made three fatal legal errors: improperly shifting the burden of proof by finding a 'presumption of negligence', imposing a non-existent duty on the appellants to assert a claim against the city on behalf of the respondent, and applying a material contribution test for causation instead of the standard 'but for' test.