David Bowden

A case conference endorsement in a commercial dispute over a $10 million commission.

The plaintiff sought to proceed to mediation, which the defendants opposed.

The court declined to order mediation for unwilling commercial parties, noting it would waste time and money.

The court issued general case management directions and specific deadlines for the examination for discovery of a third party and for the defendants to answer overdue undertakings.

The plaintiff, a Crown corporation, sought to replace its commercial lending software and entered into an agreement with the defendants based on representations that the defendants had an existing, mature 'out of the box' software product.

The implementation failed, and the plaintiff discovered the software did not actually exist but was still in development.

The plaintiff terminated the agreement and sued for fraudulent misrepresentation and breach of contract.

The court found that the defendants knowingly made false representations about the existence and capabilities of their software, which induced the plaintiff to enter the agreement and waste 15 months.

The court awarded the plaintiff over $44 million in damages for incremental costs and lost economic benefits caused by the delay, and dismissed the defendants' counterclaim for unpaid development charges.