5 total
Refusal of summary judgment was interlocutory and remitted for trial management.
In an appeal arising from a summary judgment motion in a commercial dispute, the panel held that an order refusing summary judgment on an incomplete record with unresolved credibility issues is interlocutory, not final.
Reconstituting itself as the Divisional Court under the Courts of Justice Act, the panel held that the motion judge erred by failing to invite submissions on the next procedural steps after concluding that summary disposition was unavailable.
Applying the summary judgment principles in Hryniak, the panel affirmed the refusal of summary judgment but remitted the matter to the motion judge or another judge for further case management and trial directions.
The request to require a trial on the existing record only, without new evidence, was rejected.
Successful defendants on an interlocutory injunction motion awarded $40,000 in partial indemnity costs.
The plaintiff's motion for an interlocutory injunction was previously dismissed.
The successful defendants sought partial indemnity costs of $47,884.76.
The plaintiff argued that no costs should be awarded, or alternatively, that costs should be reserved to the trial judge or fixed at $20,000.
The court found no extraordinary circumstances to reserve costs to the trial judge and held that the defendants were entitled to their costs payable forthwith.
After reducing the amount claimed for cross-examinations due to potential duplication of work among three lawyers, the court fixed the defendants' partial indemnity costs at $40,000 inclusive.
Costs of $25,000 plus disbursements and HST awarded to the respondents following a dismissed appeal.
Following the dismissal of the appeal, the court received written submissions on costs.
The court ordered the appellant to pay the respondents' costs fixed at $25,000, plus disbursements and applicable HST.
A commercial landlord has no duty to mitigate damages when it refuses to accept a tenant's repudiation of a lease and insists on performance.
The appellant tenant sought to overturn a summary judgment, arguing that commercial landlords have a duty to mitigate damages even when they do not accept a tenant's repudiation of a lease, and that a lease clause capped damages.
The Court of Appeal affirmed the motion judge's decision, holding that it was bound by Supreme Court of Canada precedent (Highway Properties v. Kelly, Douglas & Co.) which states no such duty to mitigate exists when the landlord insists on performance of the lease.
The court also upheld the motion judge's interpretation of the lease clause, finding that the two-year rent cap on damages only applied if the landlord had terminated the lease, which it had not.
The appeal was dismissed.
The court clarified a date error in its reasons regarding rental arrears but declined to vary the agreed-upon pre-judgment interest or the final judgment amount.
The Plaintiffs/Defendants by Counterclaim brought a motion under Rule 59.06 to vary a prior judgment, alleging errors in the calculation of rental damages and pre-judgment interest.
The court found a manifest error in its reasons regarding the date used for rental damage calculation, clarifying that the awarded amount was for rent up to November 3, 2022, not June 15, 2023.
However, the court declined to vary the pre-judgment interest calculation, finding it was not a slip or manifest error but an amount agreed upon by counsel.
The motion to vary the judgment itself was dismissed, with the court providing a direction to clarify the reasons.
