David Alexander MacKenzie

The appellants appealed an order striking out their statement of defence and crossclaim and granting judgment against them for $49,628.11.

They argued the motion judge failed to give reasons for the decision.

The Court of Appeal dismissed the appeal, finding that the record clearly disclosed the basis for the order: the appellants failed to answer undertakings despite multiple opportunities and court orders, and failed to respond to the motion to strike.

The evidentiary record supported the judgment amount.

Following a trial and related injunction proceedings, the successful party sought recovery of its legal costs.

The court reviewed the cost submissions of both parties and determined that the successful party was entitled to costs on a partial indemnity basis.

The court found no reason to depart from the amounts claimed for trial preparation, attendance, and injunction-related work.

Costs were fixed in a specified amount payable by the opposing party.

Following dismissal of a motion for an interim injunction, the successful defendants sought substantial indemnity costs of $26,270.93 for the interlocutory proceeding.

The court acknowledged the general presumption that the successful party is entitled to costs and that interlocutory costs are ordinarily payable forthwith.

However, given that the underlying dispute raised a serious issue to be tried concerning alleged use of a protected confectionery recipe and related marketing practices, the court concluded that the justice of the case warranted a different approach.

Costs of the motion were therefore reserved to the trial judge, who would be better positioned to assess entitlement in the context of the full record.

The plaintiff sought an interlocutory injunction restraining the defendants from using the term “mint smoothie” to describe a chocolate confection, alleging trademark infringement and passing off under the Trademarks Act.

The court accepted that there was a serious issue to be tried given the parties’ relationship, the defendants’ marketing references to family recipes, and the existence of a registered trademark.

However, the plaintiff failed to demonstrate irreparable harm as required by the RJR‑MacDonald test.

Evidence of marketplace confusion was largely hearsay and insufficient, and any potential damages could be quantified.

The balance of convenience also favoured the defendants because the disputed product represented a significant portion of their sales.

The motion for an interlocutory injunction was dismissed.

Following earlier findings of contempt for breaching a non‑communication order in a matrimonial proceeding, the court considered whether the respondent had purged his contempt and what sanctions should follow.

The respondent admitted to repeated breaches of orders prohibiting communication with his spouse, including indirect communication through a child and threatening text messages after the contempt finding.

Evidence also showed he had failed to keep the matrimonial home mortgage in good standing while continuing significant discretionary spending.

The court accepted, with hesitation, that the respondent acknowledged responsibility and intended to comply with future orders.

The court found the contempt purged but imposed remedial conditions including a written apology, ongoing disclosure regarding a business venture, continued mortgage compliance, and substantial indemnity costs.

In a family law proceeding following separation, the applicant brought a motion for contempt alleging the respondent breached court orders prohibiting communication, requiring mortgage payments, and mandating financial disclosure.

The court applied the three-part test for civil contempt and found the respondent deliberately and wilfully breached a non‑communication order by contacting the applicant directly despite clear court orders.

The court also found the respondent in breach of orders requiring mortgage payments and financial disclosure but declined to make additional findings of contempt for those breaches.

The respondent was ordered to attend court to purge his contempt and was directed to comply with outstanding disclosure and mortgage obligations.

The plaintiffs sought leave to appeal to the Divisional Court from an order setting aside an ex parte Anton Piller order.

The motion judge had set aside the order due to material non-disclosure, including the failure of the plaintiff, a status Indian, to disclose that his undertaking as to damages was unenforceable under s. 89(1) of the Indian Act, and the failure to present a complete factual picture.

The Divisional Court found that while the failure to disclose the Indian Act provision might not alone justify setting aside the order, the overall material non-disclosure regarding the business relationship justified the motion judge's decision.

The motion for leave to appeal was dismissed.

The appellant challenged a priority ruling involving two motor vehicles, arguing its lease agreements were true leases and did not require registration under the Personal Property Security Act.

The Court of Appeal held that the agreements were open-end leases under which the lessee remained liable for any deficiency on disposition and received any surplus, making the arrangements financing agreements in substance.

Because the transactions created security interests under s. 2 of the Act, registration was required to preserve priority.

The appeal was dismissed with costs.