David J. Kirwin

The court found Bryan Lozon in contempt for failing to deliver three of four specific snowmobiles as required by a Court of Appeal order, concluding that he had tampered with VIN tags and delivered incomplete or incorrect items.

The decision reviews the factual background, the evidence regarding each snowmobile, and the legal test for contempt, ultimately finding that Bryan's explanations were not credible and that he had wilfully failed to comply with the order.

The plaintiffs brought a summary judgment motion seeking specific performance of an Agreement of Purchase and Sale (APS) for a cottage.

The defendants argued the APS was invalid due to alleged irregularities in signing, unauthorized amendments to an OREA form, and late deposit payment, and further claimed the agreement was unconscionable.

The court found the APS valid, the deal not unconscionable, and the property unique, granting specific performance to the plaintiffs.

This appeal concerned the enforceability of Minutes of Settlement signed by family members to resolve three lawsuits involving property and personal injury claims.

The lower court dismissed motions to enforce the settlement, finding a misunderstanding regarding specific equipment (a tractor and snowmobiles) based on subjective intentions.

The Court of Appeal found that the motion judge erred in principle by relying on subjective evidence rather than an objective interpretation of the contract.

Applying principles of contractual interpretation, the Court clarified the terms for the tractor (correcting a typographical error) and snowmobiles, concluding that a valid agreement existed.

The plaintiff, a former retail sales representative, brought an action for wrongful dismissal and mental distress under simplified procedure.

The action settled on the first day of trial for $35,000 in damages.

The parties could not agree on costs, leading to this endorsement.

The plaintiff sought substantial indemnity costs based on Rule 49.10, claiming the settlement was a "judgment as favourable." The court rejected this, finding Rule 49.10 inapplicable as the offer was accepted before trial and no judgment was rendered.

The court fixed costs on a partial indemnity basis, considering factors under Rule 57.01, including the principle of indemnity, complexity, amount recovered, proportionality, and the defendant's late acceptance of the offer.

The court reduced the plaintiff's claimed fees and disbursements, particularly for photocopying and time spent on the costs issue itself, and awarded $21,244 in total costs.

The appellants, vendors of a commercial farm property, appealed a partial summary judgment order that declared the agreement of purchase and sale valid but denied specific performance and ordered a trial on damages.

The appellants had refused to close the transaction, alleging unconscionability, non est factum, collusion and conspiracy.

The motion judge made adverse credibility findings against the appellants, concluding they suffered from sellers' remorse.

The Court of Appeal allowed the appeal, finding that the motion judge erred in granting partial summary judgment when genuine issues of fact and credibility existed that were inextricably intertwined with the counterclaim and third party claim against real estate agents, creating a risk of duplicative or inconsistent findings.

The defendant insurer moved for summary judgment dismissing a claim brought by an investor seeking indemnification under a Financial Institution Bond issued to a corporation.

The plaintiff alleged that fraudulent conduct associated with an investment scheme triggered fidelity coverage under the bond.

The court held that the claim was barred by issue estoppel arising from prior Divisional Court findings that the insured corporation had not suffered a fidelity loss and could not be defrauded by its sole directing mind.

The bond provided first‑party indemnity only to the named insured and required discovery, notice, and proof of loss within specified time limits, none of which were satisfied.

The court concluded there was no genuine issue requiring trial and that the plaintiff’s claim could not succeed as a matter of law.

The defendant architect brought a motion for summary judgment to dismiss a negligence action arising from alleged design defects in a residential building.

The plaintiff argued the defect was not discoverable until a precast concrete unit fell from the building in 2008 and that the claim was therefore timely under the discoverability principle.

The court held that the architectural services agreement contained a contractual limitation clause providing that the architect’s liability ceased six years after substantial performance of the work or another specified triggering event, whichever occurred first.

Substantial performance occurred in 1994 and the action commenced in 2009, well beyond the contractually agreed limitation period.

The court found the clause clear, enforceable, and properly brought to the plaintiff’s attention, and granted summary judgment dismissing the action.