David Alexander Shaw Mills

The appellants appealed a decision of the Superior Court of Justice regarding the estate of Nadia Wyszatko.

The Court of Appeal dismissed the appeal but made a minor variation to remove Richard Wyszatko's liability for a loan, interest, and legal fees.

The respondent was successful on the appeal and sought costs.

The court awarded partial indemnity costs to the respondent and declined to hold the non-party appellant liable for costs.

The appellants appealed an application judge's decision resolving multiple issues regarding an estate and family marina business, including the repayment of a loan and the payment of occupation rent.

The Court of Appeal found no palpable and overriding errors in the application judge's findings of fact or her award of costs.

The appeal was dismissed, save for a minor variation to the formal judgment to clarify that only the estate, not the appellant personally, was liable for the loan repayment.

The court dismissed two actions by will beneficiaries against the drafting lawyer for negligence, holding that the claims were statute-barred by the 15-year ultimate limitation period in section 15(2) of the Limitations Act, 2002.

The court found that the limitation period began to run from the date of the negligent drafting, not the testator’s death, and that no statutory or common law exception applied.

The court also addressed the application of the Trustee Act and concluded that the two-year limitation period for estate claims did not revive or extend the beneficiaries’ claims.

The plaintiff brought a motion for summary judgment for wrongful dismissal, while the defendant employer claimed the plaintiff had resigned.

The court found that the plaintiff was terminated, as his conduct did not objectively reflect a clear and unequivocal intention to resign.

The court awarded a nine-month notice period, unpaid vacation pay, health benefits expenses, and damages for lost bonuses, finding the bonus was an integral part of compensation.

The plaintiff's claim for punitive damages was dismissed.

The appellant employee appealed a summary judgment dismissing his wrongful dismissal action against the respondent employer.

The appellant was terminated without cause after less than six months of employment and claimed he was induced to leave his previous secure job.

The Divisional Court upheld the motion judge's findings that the appellant was bound by a clear six-month probation clause in his signed employment offer, which negated any claim of inducement.

The court also found no bad faith, concluding the employer provided a fair opportunity for the appellant to demonstrate his suitability during the probationary period.

The appellant appealed an order from the Superior Court of Justice dated June 27, 2017.

The Court of Appeal found that the appeal was not within its monetary jurisdiction and transferred the matter to the Divisional Court.

Costs were fixed in favour of the respondent.

Following the dismissal of the plaintiff's motion and the granting of the defendants' motion, the court determined the costs payable to the successful defendants.

The court rejected the defendants' request for substantial indemnity costs and found their claimed amount of $26,000 to be excessive.

Costs were fixed at $15,000 inclusive of HST and disbursements.

The court also resolved a dispute over the discovery plan, ordering that cross-examinations could be used as examinations for discovery for trial purposes.

The parties were involved in a commercial joint venture dispute.

The defendants brought a motion to release $50,000 held in trust that stood in place of a previously issued Certificate of Pending Litigation (CPL) on a sold property.

The plaintiff brought a cross-motion for leave to issue new CPLs against two other properties owned by the defendants, alleging joint venture funds were diverted to purchase or improve them.

The court granted the defendants' motion to release the funds and dismissed the plaintiff's motion for new CPLs, finding the plaintiff failed to establish a direct connection between the joint venture funds and the properties, and thus had no triable issue regarding an interest in land.

The plaintiff was granted unopposed leave to amend her statement of claim.

Following the dismissal of the plaintiff's action for damages via summary judgment, the defendant sought costs on a substantial or partial indemnity basis.

The plaintiff argued the claimed costs were excessive.

The court, applying the Courts of Justice Act and Rules of Civil Procedure, including the proportionality principle under Rule 1.04(1.1) and the objectives of Simplified Procedure (Rule 76), determined a fair and reasonable costs award.

The defendant's pre-litigation offer did not meet Rule 49 requirements for substantial indemnity, and the plaintiff's conduct was not reprehensible.

The court awarded the defendant $15,000 in partial indemnity costs, inclusive of disbursements and HST.

The plaintiff, a 59-year-old senior designer, brought a motion for summary judgment against his former employer, Thumper Massager Inc., alleging wrongful termination without proper notice or pay in lieu thereof after less than six months of probationary employment.

The plaintiff sought damages for pay in lieu of notice, expenses, and benefits.

The court found that the plaintiff was bound by the six-month probationary period in his employment contract and that the employer was entitled to dismiss a probationary employee without cause or notice, provided the assessment of suitability was not performed in bad faith.

The court determined that the defendant had provided a fair opportunity to the plaintiff and did not act in bad faith in terminating his employment.

Consequently, the plaintiff's claim was dismissed, and summary judgment was granted in favour of the defendant.

The plaintiff sought a declaration of sole beneficial ownership of a residential property, alleging her brother, the defendant, held title as a bare trustee.

The defendant counter-claimed for a declaration of co-ownership as a joint tenant with a beneficial interest.

The court found the defendant to be more credible, concluding that he acquired a beneficial interest in the property by purchasing the ex-boyfriend's share, assuming the mortgage, and making significant contributions to improvements and arrears, which were inconsistent with acting as a bare trustee or making gratuitous payments.

The court dismissed the plaintiff's claim and granted the defendant's declaration of 50% legal and beneficial ownership, subject to an accounting.

Following a successful civil action, the plaintiff sought substantial indemnity costs based on an offer to settle under the Rules of Civil Procedure.

The court considered whether the judgment obtained exceeded the settlement offer once prejudgment interest was calculated.

The plaintiff argued that the court should exercise its discretion under the Courts of Justice Act to increase the prejudgment interest rate above the statutory presumption of 0.5%.

The court declined to do so, finding no compelling reason to depart from the statutory rate and noting potential prejudice to the defendant.

Because the judgment plus interest did not exceed the settlement offer, the court awarded costs on a partial indemnity basis.

The plaintiff, a former employee of the defendant medical equipment manufacturer, sought unpaid commissions for a $2.3 million sale to the Iraqi Ministry of Health.

The defendant argued that commissions for Iraqi sales were discretionary and attempted to unilaterally impose a new, less favorable commission structure just before the deal closed.

The court found that a binding contract existed entitling the plaintiff to a 7% commission on the gross margin of the sale.

Alternatively, the court held the plaintiff would be entitled to the same amount under quantum meruit.

The plaintiff was awarded $86,291.64 in unpaid commissions.

The appellant employee had an agreement with the respondent employer to sell products on commission.

The employer unilaterally informed the employee that it would pay a lower commission rate for a recently negotiated sale.

The employee did not accept this anticipatory breach and continued to press for the higher rate.

When the commission became payable, the employer tendered payment at the lower rate.

The employee sued for the shortfall more than two years after the employer's initial notice but less than two years after the deficient payment.

The Court of Appeal held that the limitation period did not begin to run until the employer actually failed to pay the full commission due, as the employee had elected to treat the contract as subsisting.

The appeal was allowed and the summary judgment dismissing the action was set aside.

The defendant brought a motion for leave to amend its Statement of Defence to plead a limitation defence and sought summary judgment dismissing the plaintiff’s claim as statute‑barred.

The dispute concerned commission allegedly owed to the plaintiff arising from a sale to a foreign government ministry, where the defendant had imposed a revised commission formula in 2006.

The court applied the discoverability principle under s. 4 of the Limitations Act and held that the plaintiff knew or ought to have known of the alleged loss by December 2006, or at the latest by correspondence in August and September 2007 confirming the defendant’s position.

Because the action was commenced in September 2009, more than two years after discoverability, the claim was statute‑barred.

Leave to amend the defence was granted and summary judgment was granted dismissing the claim.

The appellant builder appealed a trial judgment that allowed the respondent purchasers to refuse to close a real estate transaction and recover their $20,000 deposit.

The trial judge found that changing the location of the attached garage from the side to the front of the house was a fundamental change, and that the builder failed to clearly convey this change to the purchasers.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions.