David Foulds

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.

The appellant appealed a motion judge's decision striking out paragraphs from its statement of defence that pleaded the respondents' ulterior motive in bringing the action.

The respondents alleged breaches of representations and warranties and fraudulent conduct arising from a share purchase agreement for the acquisition of a European auto parts manufacturing business valued at $410 million.

The defendant claimed the respondents' true motive was to obtain an after-the-fact reduction in the purchase price due to their own financial difficulties, rather than to recover genuine damages for genuine wrongs.

The motion judge struck these allegations as irrelevant and frivolous and vexatious under rule 25.11(b) of the Rules of Civil Procedure, and refused leave to amend.

The plaintiffs and a defendant by counterclaim, Mr. Sauro, brought motions to strike portions of the statement of defence and counterclaim.

The plaintiffs sought to strike paragraphs alleging ulterior motive and financial mismanagement.

The court struck the paragraphs pleading motive as frivolous and vexatious, but retained those pleading causation.

Mr. Sauro sought to strike the counterclaim against him, arguing it was improperly constituted as a counterclaim rather than a third-party claim.

The court agreed, finding Mr. Sauro was not a necessary and proper party to the counterclaim against the plaintiffs, and struck the counterclaim against him.

The plaintiff air freight company brought a motion under Rule 45.02 of the Rules of Civil Procedure seeking an order requiring the defendant sales agents to pay 732,376.72 EUR into court.

The plaintiff argued the funds represented unpaid cargo sales revenues.

The court dismissed the motion, finding that the plaintiff failed to establish a legal right to a specific, readily identifiable fund, as the defendants deposited all monies into a general corporate account without segregation.

The court concluded the plaintiff's claim was essentially for damages and granting the relief would amount to execution before judgment.

The accused, facing multiple charges including human trafficking, prostitution, firearms, and drug offences, brought pretrial applications for a change of venue and severance of counts.

The accused argued that pretrial publicity necessitated a change of venue and that the drug charges should be severed because he only intended to testify regarding the other offences.

The court dismissed both applications, finding that the pretrial publicity was largely stale and could be addressed by trial safeguards, and that the strong factual nexus between the charges favoured a single trial.

A Court Prisoner Security Officer was convicted of assault causing bodily harm after forcefully shoving a handcuffed and shackled inmate into a wall, causing broken teeth and facial injuries.

The court rejected a conditional discharge despite the offender's exemplary twelve-year employment record and strong character references, finding that the breach of trust and abuse of authority required a custodial sentence to satisfy principles of denunciation and general deterrence.

However, the court imposed a conditional sentence of thirty days house arrest rather than jail time, balancing the seriousness of the offence against the offender's personal circumstances and rehabilitation prospects.

The plaintiffs, owners of a long-standing apple farm and retail market, sought an interlocutory injunction to prevent the defendants from constructing berms on lands adjacent to a nearby landfill.

They argued the berms would eliminate buffer lands, violate environmental approvals, and cause nuisance by creating stigma that would harm their retail business.

The court applied the test for interlocutory injunctions from RJR MacDonald Inc. v. Canada (Attorney General) and found that while there was a serious issue to be tried, primarily in nuisance, the plaintiffs failed to establish irreparable harm.

Evidence showed the market had achieved record sales after initial berm construction and any potential losses could be compensated by damages.

The balance of convenience also favoured the defendants due to delay in bringing the motion and the impact an injunction would have on the defendants’ construction plans.

A Court Prisoner Security Officer (CPSO) was charged with assault causing bodily harm under section 267 of the Criminal Code after forcefully pushing a prisoner into a concrete wall in a dry cell, causing dental injuries.

The Crown alleged the accused used excessive force beyond what was necessary.

The Defence argued the accused was justified under section 25 of the Criminal Code in using force to place a resistant prisoner into custody.

The court found the accused guilty, determining that the force used was intentional and excessive, driven by frustration and a desire to assert authority rather than by legitimate security concerns.

Following the release of the court's reasons on an appeal, counsel advised the judge of an error regarding the agreed-upon costs.

The court issued a correcting endorsement to amend the costs award payable to the successful appellant from $15,000 to the agreed amount of $5,000.

The appellant appealed an order dismissing its motion for leave to amend its Statement of Claim to add claims of negligence and negligent misrepresentation regarding an adhesive product.

The Master had found the proposed amendments sought to plead new facts and causes of action that were statute-barred.

The Divisional Court allowed the appeal, finding that the original claim contained sufficient material facts to support the new legal theories, and the amendments merely sought alternative remedies based on the same facts.

The defendants moved for summary judgment dismissing a multi-million dollar action and seeking judgment on two promissory notes totalling $1.25 million.

The court held that a broadly worded release executed in November 2009 barred most of the plaintiffs’ claims, particularly in light of admissions that the parties had a “clean slate.” However, the enforceability of the two promissory notes raised genuine issues requiring a trial because the surrounding documentation was inconsistent and some documents were admittedly fabricated.

After conducting a mini‑trial under Rule 20.04(2.2), the court concluded that a full appreciation of the evidence regarding the promissory notes could not be achieved on a summary judgment record.

Most of the plaintiffs’ action was dismissed, but the counterclaim relating to the promissory notes was directed to trial.

A police officer was charged with perjury, obstructing justice, and breach of trust arising from testimony he gave in Provincial Offences Court during a traffic prosecution.

The officer had testified that he personally obtained and wrote a cautioned statement from a motorist, when in fact another officer had written the statement.

The court accepted that the testimony was objectively false but found the Crown failed to prove beyond a reasonable doubt that the officer intentionally misled the court or knew the statement was false at the time he testified.

Evidence showed multiple administrative errors by other officers and the prosecutor, and the accused plausibly believed he had taken the statement after discovering the original document in his file while testifying months later.

The court concluded the false testimony resulted from a mistaken assumption rather than deliberate deception.

This is a voir dire ruling on the admissibility of a video-recorded police statement made by a young person accused of sexual assault, sexual interference, sexual invitation, and forcible confinement.

The Crown sought to use the statement for cross-examination purposes.

The court considered two issues: (1) whether the procedural requirements under section 146 of the Youth Criminal Justice Act were followed, and (2) whether the statement was voluntarily given.

The court found that the officer failed to take sufficient steps to ensure the young person understood his rights under section 146, particularly given several red flags indicating comprehension difficulties.

The court also found the statement was not given in oppressive circumstances.

The statement was ruled inadmissible.

The plaintiffs moved to strike portions of the defendant's affidavit filed in support of a summary judgment motion, arguing the paragraphs disclosed without prejudice settlement communications.

The court dismissed the motion, finding that the communications were simply an accounting reconciliation of agreed and disputed invoices, rather than privileged settlement negotiations involving a compromise of positions.