David N. Vaillancourt

The defendant brought a motion for summary judgment to dismiss the plaintiff's claims regarding intellectual property rights in software, arguing the claims were barred by a quitclaim agreement and the expiry of the limitation period.

The court dismissed the motion, finding that significant credibility issues existed regarding the execution and knowledge of the quitclaim, as well as the discoverability of the claim, which could not be resolved fairly using the enhanced fact-finding powers under Rule 20.04.

The matter was directed to proceed to trial in the normal course.

The appellant commenced an action in 1989 alleging the respondents dumped coal tar that migrated onto its property between 1924 and 1958.

In 2014, the motion judge dismissed the 25-year-old action for delay under Rule 24.01, finding the delay after 2003 was inordinate and inexcusable, and that the appellant failed to rebut the strong presumption of prejudice given the unavailability of key witnesses and documents.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's application of the test for dismissal for delay or his costs awards.

In this proposed securities class action arising from the collapse of a public issuer, the plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of claims on behalf of purchasers of notes and shares in the primary and secondary markets.

Subject to one contested issue concerning former noteholders who had assigned their notes during the class period, the motions were unopposed or proceeded on consent.

The court granted leave and certified the action, holding that the substantive dispute over whether assigned noteholder claims vested in transferees under New York law should be postponed until after certification.

The court found it procedurally preferable and fair to defer that merits issue until after a defence was delivered, thereby avoiding interlocutory delay in a large and complex class proceeding.

Following trial, the successful plaintiff sought elevated costs on a full indemnity basis, alleging reprehensible conduct by the defendant including theft from his employer and litigation conduct that required strict proof and additional legal research.

The court held that while costs are discretionary, they must be fixed on a principled basis and guided primarily by reasonableness under Rule 57 of the Rules of Civil Procedure.

The court declined to award elevated or full indemnity costs, noting the defendant had already been sanctioned through criminal proceedings and had limited financial means.

Considering proportionality, access to justice concerns, and the modest scale of the litigation, the court fixed costs at $25,000 rather than the $44,874.55 sought.

The plaintiff employer brought a civil action against a former employee alleging conversion, fraud, and breach of fiduciary duty arising from systematic theft of store funds through manipulation of cash register void transactions.

The defendant had previously pleaded guilty to a criminal theft charge and paid partial restitution.

The court accepted the employer’s statistical analysis of business records showing excessive void transactions and found, on a balance of probabilities, that the defendant misappropriated $70,699.93.

The court further held the defendant occupied a position of trust as a night manager and therefore acted in a fiduciary capacity.

Judgment was granted for damages and a declaration that the debt arose from fraud while acting in a fiduciary capacity under the Bankruptcy and Insolvency Act and would survive bankruptcy; punitive damages were refused.

The appellant appealed a trial judgment finding that it had repudiated a contract by indicating it would no longer pay the agreed contract price.

The Court of Appeal upheld the trial judge's factual inference that the appellant's conduct, including repeatedly seeking lower quantities and prices, demonstrated an intention not to honour the contract price going forward.

The Court also upheld the finding that the respondent accepted the repudiation by cancelling a shipment and pursuing litigation, and effectively communicated this acceptance.

The appeal was dismissed with costs.