Chris Paliare

The respondents in the underlying application (BNY) brought a motion to adjourn a damages trial until after the disposition of their pending appeal on liability, to adduce further evidence, and to settle the form of judgment on liability.

The court had previously found BNY liable for breach of contract and ordered a viva voce trial on damages due to the complexity of the record.

The court dismissed the motion, finding that an adjournment would effectively impose a bifurcation not agreed to by the parties, contrary to Rule 6.1.01, and that the balance of convenience favoured proceeding with the damages trial to allow a single appeal on both liability and damages.

The court also declined to allow new evidence or settle the form of judgment at this stage.

The applicant claimed damages of over $889 million for breach of two Data Services Agreements, alleging the respondents improperly shared market pricing data within their corporate group.

The respondents argued the agreements allowed sharing across their 'line of business' or brand.

The court found the respondents breached the agreements, as the contracts, factual matrix, and parties' conduct indicated the data was restricted to the named entities.

Defences of waiver, estoppel, and limitation periods were dismissed.

However, the court found the paper record insufficient to assess damages and directed the issue of damages to a trial.

The applicant purchaser sought to void a commercial real estate transaction and recover $5.913 million from the respondent vendor, claiming the vendor failed to provide a copy of an environmental Director's Order prior to closing as required by s. 197 of the Environmental Protection Act.

The court dismissed the application, finding on a balance of probabilities that the vendor did provide the order.

Alternatively, the court held that the applicant was estopped from voiding the transaction because its solicitors had represented to the vendor prior to closing that they had no outstanding concerns regarding the receipt of the order.