Christopher J. Cosgriffe

Ryerson Futures Inc. brought a Rule 21 motion to strike the oppression claim against it for failure to disclose a reasonable cause of action.

The plaintiff alleged that minority shareholders orchestrated his termination and the undervalued sale of company assets through a shareholders' agreement mechanism.

The court found that the pleadings disclosed no viable oppression claim against Ryerson, as it had no active role in the termination, lacked voting power to prevent the shareholder resolution, and its consent to the transaction was irrelevant.

The court granted leave to amend within 20 days, with costs awarded to Ryerson.

This costs endorsement follows a successful application by Figaro Dominion Ltd. and Figaro Gate Ltd. for a permanent injunction restraining the developer from obstructing a laneway and parking behind the applicants’ units.

The court awarded the applicants $33,000 in costs against the developer and awarded the Church full indemnity costs of $68,076.53, also payable by the developer.

The decision addresses the scale and quantum of costs, the effect of settlement offers, and the application of an indemnity clause in a Crane Swing Agreement.

The Applicants, commercial landlords, sought a permanent injunction against the Developer and the Church regarding the use of a right-of-way (ROW) over a laneway behind their properties.

The court found that the Developer’s construction activities, including staging, parking, and storage, substantially interfered with the Applicants’ use of the ROW, particularly for parking and access by tenants and customers.

The court granted a permanent injunction restraining the Developer from obstructing the laneway and from allowing its workers to park directly behind the Applicants’ units, but declined to order removal of all construction equipment due to the stage of construction and delay in seeking relief.

The applicant sought the appointment of an arbitrator under a construction agreement.

The respondent cross-applied for a declaration that the arbitration was barred by the Limitations Act, 2002, and that procedural preconditions were not met.

The court granted the application to appoint an arbitrator and dismissed the cross-application, holding that under the competence-competence principle and the 'hands-off' approach to arbitration, the arbitrator should determine their own jurisdiction and the limitation period defence.

Subway Franchise Restaurants of Canada Ltd. appealed the dismissal of its application for relief from forfeiture after failing to exercise a lease renewal option within the specified timeframe.

Subway argued that BMO Life Assurance Company, the landlord, breached its duty of good faith by remaining silent when Subway inquired about the lease termination date, which Subway had incorrectly diarized.

The Court of Appeal upheld the application judge's decision, finding that BMO did not lie, mislead, or actively contribute to Subway's misapprehension.

The court distinguished the facts from the Supreme Court's decision in *C.M. Callow Inc. v. Zollinger*, emphasizing that a duty to correct a misapprehension only arises if the party contributed to it.

Subway had access to the correct termination date via an estoppel certificate and failed to make diligent efforts to comply with the lease terms.

The Applicant, a commercial tenant, sought relief from forfeiture after failing to exercise its lease renewal option within the stipulated timeframe.

The tenant had mis-diarized the lease expiry date despite having signed an Estoppel Certificate with the correct date.

The court dismissed the application, finding that the onus was on the tenant to comply with the lease terms and that the landlord had no duty to correct the tenant's errors or disclose information beyond the contractual obligations.

The appellant, a bank in liquidation, appealed a decision of the Superior Court of Justice.

Counsel for the appellant advised the court that he was unable to obtain clear instructions from his client and that the instructions received indicated it was not in the appellant's interest to prosecute the appeal.

The Court of Appeal proceeded on the basis of the written record and found no basis to interfere with the motion judge's decision.

The appeal was dismissed with costs awarded to the respondent.

The plaintiff brought a motion to remove Shawna Sosnovich and Devry Smith Frank LLP as counsel for the defendant Anna Chen, alleging a conflict of interest.

The conflict arose because a partner at the firm, Lorne Shapiro, was likely to be a material witness at trial, having provided an affidavit that contradicted the plaintiff's evidence regarding key events leading to the litigation.

The court granted the motion, finding that the proper administration of justice required the removal of counsel due to the inherent conflict between a lawyer's duty of objectivity to the court and the obligation to present evidence favorably to a client, a conflict that cannot be waived.

The defendants were successful at trial and sought costs of $346,561.72 on a partial indemnity basis.

The plaintiff objected to the amounts claimed for examinations for discovery, senior counsel's hourly rate, and the cost of the defendants' expert report.

The court rejected the plaintiff's arguments regarding discovery and counsel rates, finding the $450 hourly rate for senior counsel reasonable.

However, the court reduced the disbursement for the expert report by $22,500 to reflect work attributable to an excluded portion of the report.

The court fixed the defendants' costs at $315,000 all-inclusive.

The plaintiff, Brand Name Marketing Inc., brought an action against Rogers Communications Inc. for breach of a non-disclosure agreement and breach of confidence.

The plaintiff alleged that it provided confidential marketing concepts to Rogers regarding a 'Pink Phone program' and a 'Call for the Cure program', which involved affinity marketing with a breast cancer charity.

The plaintiff claimed that Rogers misused this information to launch its own 'Pink Razr campaign' and sought over $14 million in damages.

The Superior Court of Justice dismissed the action, finding that the plaintiff could not enforce the NDA as it was not a party to it at the relevant time.

Furthermore, the court held that while certain financial projections were confidential, the general concept of a charitable donation tied to a product sale was public knowledge.

Ultimately, the court concluded that Rogers did not use the plaintiff's confidential information in designing or implementing the Pink Razr campaign, which was fundamentally different from the plaintiff's proposals.

An employee who was employed as CEO and president for nine years brought an appeal challenging the trial judge's finding that the employer's refusal to pay a bonus on profits from the sale of real estate investments did not constitute constructive dismissal, despite breaching the employment contract.

The Court of Appeal upheld the trial judge's decision, finding that the breach did not substantially alter an essential term of the employment contract and did not evince an intention by the employer to no longer be bound by the contract.

The court applied the two-branch test from Potter v. New Brunswick Legal Aid Services Commission, finding that neither branch was satisfied on the facts.

Following a successful motion for summary judgment, the plaintiff sought costs on a substantial indemnity basis, relying on two offers to settle.

The defendants argued costs should be payable in the cause or fixed on a partial indemnity basis.

The court found the plaintiff was not entitled to substantial indemnity costs because the first offer had expired and the judgment did not meet or exceed the second offer's terms.

Applying the principle that costs must be fair and reasonable, the court awarded the plaintiff partial indemnity costs fixed at $65,000, inclusive of disbursements, payable forthwith.

The plaintiff brought a motion for summary judgment against the corporate defendant for amounts owing under commercial equipment leases and against the remaining defendants under unconditional guarantees.

The defendants argued there was no valid assignment of the leases, raised credibility issues, and claimed the plaintiff fundamentally breached the leases by providing defective equipment, thereby invalidating the exclusion clauses.

Applying the Tercon framework, the court enforced the exclusion clauses and found no genuine issue requiring a trial.

Summary judgment was granted for over $2.2 million against the corporate defendant and $500,000 against the guarantors, but execution was stayed pending the resolution of the defendants' counterclaim.

The plaintiff sought leave under Rule 48.04 of the Rules of Civil Procedure to bring a summary judgment motion to dismiss the defendants’ counterclaim after the action had already been set down for trial.

The plaintiff also requested that the defendants’ affidavit evidence be struck because the affiant had not been cross‑examined.

The court declined to strike the affidavit, finding no unjustified refusal to attend for cross‑examination.

Applying principles of proportionality and case management, the court held that a summary judgment motion would not be the most efficient procedure, risked duplicative proceedings and inconsistent factual findings, and could delay the scheduled trial.

Leave to bring the summary judgment motion was therefore refused.

Following the dissolution of ex parte Mareva injunctions obtained by the plaintiffs, the defendant sought costs on a substantial indemnity basis for the motions that resulted in the injunctions being set aside.

The court held that the defendant was the successful party on the motions and was entitled to costs.

However, substantial indemnity costs were not warranted in the circumstances.

The court fixed costs at $6,500 on a partial indemnity basis, payable upon termination of the action, with liability joint between the plaintiffs.

Any damages flowing from the granting of the injunction were left to be determined in future proceedings.