David J. Kirwin

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.

The appellants challenged a trial judgment requiring repayment of money advanced by the respondents for the purchase of land intended for a matrimonial home, arguing the transfer was a gift rather than a loan.

The Court of Appeal upheld the trial judge's credibility findings and conclusion that the funds were advanced as a loan repayable when the appellants became financially able to do so.

Although the trial judge had not expressly addressed when that repayment condition was satisfied in the main reasons, the appellate court relied on the later finding made in fixing pre-judgment interest and granted an amendment to the statement of claim to conform to the issue actually litigated.

The limitation defence failed because the cause of action arose only when the appellant became financially able to repay.