Christine Muir

The appellants appealed a Small Claims Court judgment ordering them to pay $16,166.85 plus 24% interest for unpaid medical billing invoices.

The Divisional Court upheld the trial judge's finding of an implied contractual term requiring the appellants to inquire with the Ministry of Health regarding unpaid invoices, as it was necessary for business efficacy.

However, the court allowed the appeal in part regarding the interest rate, finding that the contractual 24% rate did not apply because there was no finding that the appellants had actually received the funds from the Ministry.

The interest rate was varied to the statutory rates under the Courts of Justice Act.

This endorsement addresses costs following the dismissal of the plaintiffs' claim.

The court considered whether the successful defendants, Sparkasse Siegen and Thomas Magnete GmbH, should receive costs on a higher scale due to settlement offers, and whether costs should be awarded against a non-party, Mr. Mellema.

The court declined to award higher scale costs, finding the plaintiffs' claim was not frivolous and their refusal to accept settlement offers was not unreasonable.

It also declined to award costs against Mr. Mellema personally, noting the defendants' awareness of his involvement and their prior opportunities to seek increased security for costs or provide notice.

The plaintiffs were ordered to pay partial indemnity costs to both defendants.

The plaintiffs, suppliers of automated assembly lines, sued the defendants for negligent misrepresentation and breach of contract following the cancellation of a major auto sector project.

The plaintiffs alleged they relied on a comfort letter from the defendants regarding project financing and that a subsequent oral agreement was made for the defendants to assume the debt.

The court dismissed the claims, finding the comfort letter was not misleading and reliance on it was unreasonable given the plaintiffs' own deceptive request.

The court also found no evidence of the alleged oral agreement and held that any such claim would be barred by the Limitations Act and the Statute of Frauds.

Wrigley Canada Inc. (moving party) sought an interim injunction and an inspection order under Rule 32 to conduct its own environmental testing on the adjacent property owned by Metrus Properties (responding party).

Metrus had sued Wrigley alleging contamination from Wrigley's property and had refused Wrigley access for testing, subsequently beginning excavation work.

The court granted the injunction and inspection order, finding that Wrigley had demonstrated a serious issue to be tried, would suffer irreparable harm if denied access to conduct independent testing before excavation altered the site, and that the balance of convenience favoured granting the order, especially given Metrus's refusal of access and non-disclosure of excavation plans.

The appellant tenant sued the respondent landlord for damages arising from two sewer backups, alleging breach of lease, negligence, and misrepresentation.

The motion judge struck most claims, finding they were barred by the lease's covenant to insure.

On appeal, the Court of Appeal held that while the covenant to insure barred the negligence and breach of contract claims, it was not plain and obvious that it or the 'entire agreement' clause barred the negligent misrepresentation claim.

The Court also allowed the tenant's claim that the landlord was estopped from relying on the covenant to insure for the second backup to proceed.

The Ontario College of Trades moved to set aside an order refusing to quash a summons to witness issued by PowerServe to the Chair of the College's Electrician Ratio Review Panel.

PowerServe sought to examine the Chair regarding his prior professional relationship with a union involved in the review, alleging a reasonable apprehension of bias.

The Divisional Court allowed the motion and quashed the summons, finding that the proposed areas of inquiry were either irrelevant, amounted to a fishing expedition, or would require the disclosure of communications protected by solicitor-client privilege.

The deceased promised to bequeath his farm and cottage to his common-law wife's grandsons in exchange for their unpaid labour.

He later married the appellant, who claimed dependant's relief against the estate.

The trial judge ordered the properties conveyed to the grandsons and awarded the widow support based on an inflated estate value, refusing to consolidate the proceedings.

The Court of Appeal allowed the appeals, holding that the promise was to bequeath, not convey, meaning the properties remained in the estate and were subject to the widow's dependant's relief claim under s. 71 of the Succession Law Reform Act to the extent their value exceeded the grandsons' consideration.

The matter was remitted for a new trial on the dependant's relief claim.

Following a successful motion in which the action against one defendant was dismissed for lack of a real and substantial connection with Ontario, the court determined the appropriate costs award.

The successful defendant sought partial indemnity costs exceeding $25,000, arguing the motion involved significant complexity, a substantial damages claim, and an extensive evidentiary record.

The plaintiffs contended the cross-examination conducted was proper and that a lower costs award was reasonable.

Applying the discretionary principles governing costs under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court fixed a fair and reasonable amount rather than awarding actual costs incurred.

Partial indemnity costs of $21,000 inclusive of disbursements and taxes were awarded to the successful defendant.

The defendant, a resident and chief architect of the Ministry of Works and Engineering of Bermuda, brought a motion to dismiss the plaintiffs' conspiracy action against him on the grounds of state immunity and lack of jurisdiction simpliciter.

The plaintiffs, former Bermudian government officials, alleged the defendant conspired with an Ontario architect to plant altered cheques in government files to falsely implicate them in a kickback scheme.

The court found the defendant was not immune from suit due to the commercial activity exception under the State Immunity Act.

However, the court dismissed the action against the moving defendant, concluding that Ontario lacked jurisdiction simpliciter as the plaintiffs failed to establish a real and substantial connection to the province.

The defendant sought leave to appeal to the Divisional Court from an order dismissing his motion for summary judgment in a defamation action.

The underlying dispute arose from an email sent by the defendant, a neurologist, to the Minister of Health and the College of Physicians and Surgeons of Ontario requesting investigation into the plaintiff’s involvement in diagnosing and treating a controversial medical condition.

The motion judge had refused summary judgment largely on the basis that the plaintiff had delivered a jury notice and should have the opportunity to have issues such as malice determined by a jury.

The court held that the existence of a jury notice does not alter the test for summary judgment and that the motion judge erred by declining to determine the asserted defences of absolute privilege, qualified privilege, justification, and fair comment where the material facts were not in dispute.

Finding conflicting authority and good reason to doubt the correctness of the order, and that the issue was of broader importance regarding the availability of summary judgment in defamation actions, the court granted leave to appeal.

The defendant brought a motion for summary judgment dismissing a defamation action arising from an email sent to the provincial Minister of Health and the president of a professional regulatory body concerning a physician’s clinic offering diagnostic imaging related to a controversial multiple sclerosis theory.

The plaintiff alleged that the email implied unethical conduct, fraud, and exploitation of vulnerable patients.

The defendant argued the communication was protected by absolute or qualified privilege and that the action could be dismissed without trial.

Applying the “full appreciation” test articulated in Combined Air Mechanical Service Inc. v. Flesch, the court held that the issues of privilege, truth, and malice required credibility assessments and a full evidentiary record.

Given the low threshold for defamatory meaning and the plaintiff’s right to a jury trial, the court concluded the matter should proceed to trial.

A sales representative sued for commission arising from an exceptionally large pandemic-related order placed within his exclusive territory.

The employer argued that an internal notice limiting commissions and a later bonus agreement reduced the representative’s entitlement.

The court held that the original commission agreement did not permit unilateral alteration by notice, but the representative subsequently signed a bonus agreement accepting a reduced payment.

Although the agreement was harsh and the bargaining power unequal, the evidence did not establish coercion, duress, or unconscionability sufficient to invalidate the contract.

The representative’s claim for full commission failed and the bonus agreement governed.

The plaintiffs, senior members of the government of Bermuda, brought a motion to strike certain paragraphs of the defendant's Statement of Defence in a defamation action.

The plaintiffs alleged the defendant architect falsified cheques to make it appear they received kickbacks from a construction project.

The impugned paragraphs detailed the history of the construction project, including the selection of the contractor and ongoing payment disputes.

The court dismissed the motion for the most part, finding the paragraphs were relevant and had potential probative value in defending against the allegations of fraud, though two specific portions were struck on consent.