David Holton Cutler

The appellant and respondent entered into an agreement to sublease commercial office space.

Due to construction delays, the anticipated occupancy date was pushed back by approximately six weeks.

The respondent treated this anticipated delay as a fundamental breach and repudiated the agreement, subsequently leasing cheaper space elsewhere.

The appellant accepted the repudiation, mitigated its damages by subleasing to third parties at a lower rate, and sued for the difference.

The trial judge dismissed the claim, finding the appellant in fundamental breach.

The Court of Appeal allowed the appeal, holding that a six-week delay in a three-year lease did not deprive the respondent of substantially the whole benefit of the contract and therefore did not constitute a fundamental breach.

Judgment was granted to the appellant for its losses.

The appellant appealed an order dismissing a motion to enforce a settlement.

The respondent had been seriously injured in a school wrestling incident.

The respondent's former solicitor accepted a settlement offer, but the respondent promptly repudiated it, claiming he gave no instructions.

The motion judge found that the appellant's counsel was on notice of 'red flags' regarding the respondent's solicitor's authority, as correspondence indicated the solicitor was taking negotiating positions without consulting his client.

The Divisional Court dismissed the appeal, holding that the motion judge's factual findings were supported by the evidence and justified refusing to enforce the settlement.

The plaintiff sued the appellant in negligence following a motor vehicle accident.

The appellant was driving the plaintiff's car with permission and was an insured under the plaintiff's automobile insurance policy.

The insurer settled the plaintiff's claims without the appellant's consent and obtained summary judgment against the appellant for reimbursement under s. 258 of the Insurance Act.

On appeal, the Court of Appeal held that absent an agreement to the contrary, s. 258(1) requires a judgment against the insured before an insurer can access available insurance moneys or seek reimbursement.

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

The appellant driver was sued for negligence following a motor vehicle accident while driving the plaintiff's car.

The plaintiff's insurer, added as a third party, settled the plaintiff's claims without the appellant's consent and obtained a consent judgment against itself, but not against the appellant.

The insurer then successfully moved for summary judgment against the appellant for reimbursement of the settlement monies under section 258 of the Insurance Act.

On appeal, the Court of Appeal set aside the summary judgment, holding that absent an agreement between the insurer and the insured, the insurer cannot seek reimbursement under section 258(1) without first recovering a judgment against the insured.

The defendant appealed a Master's order granting summary judgment to the plaintiff for the purchase price of a fiber optic measurement machine.

The defendant argued the machine was defective and that the Master erred in finding no genuine issue for trial.

The Divisional Court reviewed the conflicting jurisprudence on the standard of review for a Master's final discretionary order, concluding the standard is correctness.

Applying this standard, the court upheld the Master's decision, finding the defendant had retained the machine for over a year without rejecting it, thereby accepting it under the Sale of Goods Act.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the issue of unlawful possession of a booth had already been raised, considered, and determined in the respondent's favour during proceedings in New Jersey.

The issue of possession was fundamental and integral to the determination of the appellant's set-off and recoupment claim.