David J. Kirwin

The moving parties sought leave to appeal a decision of Howie J. dated February 10, 2025.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $9,085 to the responding party within thirty days.

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 appellants, owners of private cottages on leased land in a provincial park, appealed a decision declaring them obligated to pay a portion of the grant in lieu of taxes paid by the Crown to the municipality under the Municipal Tax Assistance Act.

The appellants argued that prior lease agreements and correspondence constituted an agreement exempting them from this obligation.

The Court of Appeal dismissed the appeal, upholding the application judge's finding that no such agreement existed and affirming the Crown's right to enforce its statutory rights following a change in taxation policy.

Applicants who held private cottage interests on Crown land in a provincial park sought a determination that they were not obliged to reimburse the Crown for payments in lieu of municipal taxes.

The court held that s. 4(3) of the Municipal Tax Assistance Act created a statutory debt owed by tenants unless the parties had agreed otherwise, and no such agreement existed on the evidence.

The lease documents preserved the tenants' liability for taxes, rates, duties and assessments, and no implied variation could arise contrary to the written agreements.

The court also rejected waiver, promissory estoppel, and laches, finding no clear abandonment of rights, no representation altering legal relations, and no detrimental reliance.

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.

The appellants appealed an order granting the respondent leave to amend her statement of claim to add a derivative claim against an insurer on behalf of a corporation.

The respondent sought to recover her investment losses under a fidelity bond issued to the corporation, alleging the corporation's principal committed fraudulent acts.

The Divisional Court allowed the appeal, finding that the principal was the controlling mind of the corporation and could not defraud his own corporation.

As the proposed derivative claim was bound to fail, the respondent was not a proper complainant under the Business Corporations Act.

The plaintiff invested funds with a corporate entity, with another corporation acting as escrow trustee.

After losing her investment, she sued the escrow trustee, its principal, and others.

She also sued the insurer that had issued a fidelity bond to the escrow trustee.

The plaintiff successfully moved to add a derivative claim against the insurer on behalf of the escrow trustee under s. 246(1) of the Business Corporations Act.

The escrow trustee and its principal appealed.

The Divisional Court allowed the appeal, finding the plaintiff was not a proper complainant under s. 245(c).

The court held that the proposed derivative claim fell outside the scope of the fidelity bond because the principal was the controlling mind of the escrow trustee, not an employee, and could not have committed a fraudulent act against his own alter ego.

The applicant sought judicial review of a decision by the Assessment Review Board dismissing her property assessment appeals.

The Divisional Court dismissed the application, noting that judicial review is discretionary and the applicant failed to pursue the statutory right of appeal in a timely manner without explanation.

Furthermore, the application lacked merit as the Board reasonably dismissed the appeals after the applicant repeatedly failed to comply with rules regarding the Statement of Issues despite receiving proper notice.

The Court of Appeal issued an amended endorsement to include a costs provision that was inadvertently omitted from its original endorsement.

The appellants were ordered to pay costs to the respondents in the agreed-upon amount of $12,970 all-inclusive.

The appellants appealed a judgment holding them liable as guarantors of a line of credit extended to an automobile dealership.

They argued that a forged Acknowledgement provided to the bank vitiated their earlier guarantees.

The Court of Appeal dismissed the appeal, finding that the bank never sought to enforce the forged document, the appellants suffered no prejudice, and the guarantor knowingly provided subsequent valid Acknowledgements.

Arguments regarding breach of a side agreement and lack of independent legal advice were also dismissed.

The appellant appealed a confirmation order that credited the respondent mortgagee with $50,825.72 for utilities expenses.

The respondent cross-appealed the disallowance of credits for a $10,000 payment and $5,000 in legal fees.

The Court of Appeal allowed the appeal in part, reducing the utilities credit to $6,204.78 because the respondent failed to establish the reasonableness of the excess payments.

The cross-appeal was dismissed as there was no evidence to support the claimed credits for the bonus or legal fees.

The appellant appealed a trial judgment regarding the bankruptcy of Carnese Hardware Limited, raising issues of insolvency, the replacement of a general security agreement, and the transfer of two vehicles to the appellant and his wife.

The Court of Appeal dismissed the appeal, finding that the trial judge made no palpable and overriding error in her findings, which were supported by the evidence.

The appellant appealed a trial judgment that found him 50% contributorily negligent for his loss, despite also finding the respondent liable for negligent misrepresentation regarding a mortgage life insurance policy.

The appellant argued that a finding of negligent misrepresentation, which requires reasonable reliance, precludes a finding of contributory negligence.

The Court of Appeal held that the two findings can logically co-exist at law, as the focus of each analysis is different.

However, on the facts of this case, the trial judge's finding that the appellant acted unreasonably in failing to inquire about the insurance term was inconsistent with the reasonable reliance required for negligent misrepresentation.

The appeal was dismissed.

The appellants appealed a summary judgment order.

The Court of Appeal allowed the appeal, finding triable issues regarding whether the president of Lason Canada had a duty to disclose off-balance sheet payments and whether he participated in including tailwind revenues, both of which allegedly inflated the EBITDA calculation.

The summary judgment was set aside and the motion dismissed.