David A. Seed

The appellant hardwood retailer appealed a Small Claims Court decision finding it liable for negligent misrepresentation regarding the sale of hardwood flooring.

The flooring degraded due to inadequate humidity levels in the respondents' condominium.

The trial judge found the appellant breached its duty to advise the respondents of the product's specific, higher-than-normal humidity requirements.

The Divisional Court dismissed the appeal, upholding the trial judge's findings on causation, the respondents' lack of actual knowledge, the inapplicability of an exclusionary clause on the invoice, and the quantum of damages.

The appellants challenged an application judgment setting aside a settlement agreement on the basis that it had been induced by intentional misrepresentations concerning the appellants’ financial ability to satisfy outstanding judgments.

The Court of Appeal held that there was ample evidence supporting findings that the respondents relied on those misrepresentations when agreeing to settle, including undisclosed imminent sale proceeds from a property sufficient to satisfy the debts.

The court further held that no trial of an issue was required because none was requested and the written record was sufficient to determine enforceability.

The reasons, though brief, satisfied the sufficiency standard.

The appeal was dismissed with costs.

Following a motion in which the defendants were successful, the court considered competing submissions regarding costs.

The defendants sought full partial indemnity costs for the motion, while the plaintiff argued that the motion had been precipitated in part by defence counsel’s own error and requested that no costs be awarded or that the plaintiff receive costs despite losing the motion.

The court held that although the defendants were successful, their recovery should be reduced because the circumstances leading to the motion were partly attributable to defence counsel’s error.

The court rejected the plaintiff’s request for costs, finding that the summary judgment motion lacked merit.

Costs were therefore awarded to the defendants but reduced to align with the plaintiff’s counsel’s claimed fees plus full disbursements and applicable HST.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action, arguing that the defendants were deemed to have admitted numerous facts due to their late response to a lengthy Request to Admit under Rule 51.03 of the Rules of Civil Procedure.

The court found that the evidentiary record contained significant unresolved factual disputes, including the length of the plaintiff’s employment, whether the defendants were successor employers under s. 9(1) of the Employment Standards Act, and the calculation of damages and mitigation.

The court held that the delayed response to the Request to Admit did not justify enforcing deemed admissions where the requested admissions concerned contested or potentially incorrect facts and where no prejudice resulted from the delay.

Exercising its discretion under Rule 51.05, the court withdrew any deemed admissions and held that the matter must proceed to trial.

A costs decision following an application in bankruptcy proceedings concerning the continuing validity of an absolute discharge order under the Bankruptcy and Insolvency Act.

The successful party sought substantial indemnity costs, while the respondents argued that the conduct of opposing counsel warranted costs in their favour or that the claimed costs were excessive.

The court rejected allegations that counsel had improperly accused opposing counsel of fraud on the court and found no basis to deny costs to the successful party.

Although the applicant was entitled to costs, the court declined to award substantial indemnity costs given the novel circumstances and the sympathetic position of the respondent.

The court fixed partial indemnity costs at $14,000 on an all-inclusive basis.

The plaintiff brought a motion for leave to amend its statement of claim to clarify relief, plead reliance on the Copyright Act, and advance an alternative claim of equitable ownership of copyright.

The defendants opposed the amendments, arguing that the litigation timetable had already been established and that equitable ownership of copyright was not recognized in Canadian law.

The court applied Rule 26.01 of the Rules of Civil Procedure and held that amendments should be permitted absent non-compensable prejudice.

Given that discoveries had not yet occurred and the amendments arose from the same factual matrix as the original breach of contract claim, the court found no prejudice.

The court further held that the novel equitable ownership argument was not clearly incapable of success and therefore should not be struck at the pleading stage.

The plaintiff bank brought a motion for summary judgment to recover outstanding indebtedness under a revolving demand credit facility extended to a corporate borrower.

Corporate and individual defendants had executed guarantees securing the facility.

The individual guarantors argued the debt arose from a new loan issued in 2009 and therefore fell outside their 2002 guarantees, asserting the original loan had been paid off in 2008.

The court found the evidence established the facility was never extinguished and that the 2009 agreement merely reduced the credit limit rather than creating a new loan.

Given the guarantees covered all present or future indebtedness, the guarantors remained liable and summary judgment was granted.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action relying on deemed admissions arising from the defendant’s failure to respond to a Request to Admit.

The defendant brought a cross‑motion seeking leave to withdraw the deemed admissions and an extension of time to respond, arguing the failure was inadvertent because the company had been represented by a layperson unfamiliar with the Rules of Civil Procedure.

The court applied the test governing withdrawal of admissions and accepted that the failure was inadvertent and that any prejudice could be compensated in costs.

However, the court held that the defendant failed to demonstrate a genuine issue requiring a trial.

Summary judgment was granted to the plaintiff for damages equivalent to three months’ notice.

The appellant appealed an order enforcing a monetary judgment from a Michigan court.

The Court of Appeal upheld the motion judge's finding that the appellant had attorned to the jurisdiction of the Michigan court, which gave the Ontario court jurisdiction to enforce the judgment.

The court also found that the narrow exceptions to enforcement set out in Beals v. Saldanha did not apply.

The appeal was dismissed with costs.

The appellants appealed a summary judgment order granting the respondent $60,526.99 for unpaid work.

The Court of Appeal dismissed the appeal, finding that the respondent adduced evidence supporting the outstanding amount and the appellants failed to raise a triable issue.

The Court also upheld the judgment against the various corporate entities controlled by the individual appellant, clarifying the specific amounts recoverable against each entity.

Following the appellant's partial success on appeal regarding the calculation of the equalization payment, the court addressed costs.

Because the appeal increased the property award beyond the respondent's offer to settle, the court set aside the trial judge's costs award of $82,822 in favour of the respondent, ordering each party to bear their own costs at trial due to divided success and relative means.

The appellant was awarded $5,000 in costs for the appeal.

The appellant wife appealed the trial judge's order regarding spousal support and equalization of net family property.

She argued the trial judge erred in finding she could contribute to her own support despite her claims of post-traumatic stress disorder, and erred in excluding funds the respondent husband managed for his father from his net family property.

The Court of Appeal dismissed the support appeal, finding no error in the trial judge's assessment of her employability.

However, the Court allowed the equalization appeal in part, holding that while the $500,000 principal was held on resulting trust for the father, the $140,000 in investment income generated by the respondent belonged to him and must be included in his net family property.

The appellant appealed an order varying the support provisions and setting aside the property division of a separation agreement.

The Court of Appeal upheld the variation of support, finding the judge had jurisdiction due to the appellant's failure to make required payments.

However, the Court set aside the portion of the order invalidating the property division, finding no evidence that the appellant failed to make full financial disclosure when the agreement was signed.

The appeal was allowed in part.

The appellant appealed the engineer's report for the Norman Heights Municipal Drain, arguing that the proposed drainage works should be modified, the allowances were insufficient, and the assessments were improper.

The appellant proposed a low-cost alternative using an existing tile drainage system.

The Ontario Drainage Tribunal dismissed the appeals, finding that the appellant's alternative lacked sufficient investigation into the outlet's suitability, and that the engineer's allowances and assessments were reasonable and unbiased.

Costs of $2,000 were awarded to the respondent municipality.