David P. Chernos

The plaintiffs sought leave to appeal a $52,000 costs order made against them following their successful motion to amend the statement of claim.

The plaintiffs argued the motions judge misapplied the 'indulgence' principle by awarding costs against the successful moving party.

The Divisional Court dismissed the application, finding no conflicting decisions or reason to doubt the correctness of the highly discretionary, fact-specific costs award.

The court held the stringent test for leave to appeal under Rule 62.02(4) was not met.

The appellant appealed a case management master's order compelling answers to various discovery questions in litigation arising from the crash of a Bombardier Global 5000 aircraft and a subsequent insurance coverage dispute.

The appellant argued the questions were irrelevant because the case turned solely on contractual interpretation of a pilot training clause and also asserted statutory privilege over information related to a Transportation Safety Board investigation.

The court held that the circumstances of the accident, pilot training, and statements provided to the Transportation Safety Board were relevant to issues raised in the pleadings, including whether simulator time satisfied the contractual pilot training requirement.

The court further held the statutory privilege argument was improperly raised for the first time on appeal and, in any event, the public interest in the proper administration of justice outweighed the claimed privilege.

The master's discovery orders were upheld.

Appeals and cross-appeals arising from the collapses of two airlines operating leased aircraft and leaving substantial unpaid airport and civil air navigation charges.

The Court held that legal titleholders were not personally liable for unpaid navigation charges under s. 55 of the Civil Air Navigation Services Commercialization Act because 'owner' was limited to persons with legal custody, control, or possession in the statutory context.

However, the seizure and detention remedies under s. 56 of that Act and s. 9 of the Airport Transfer (Miscellaneous Matters) Act operated against aircraft owned or operated by the defaulting airlines and could not be defeated by leasing arrangements or by separating attached engines.

The remedies extended to security posted in substitution for the aircraft, subject to the motions judges’ supervisory discretion to craft fair terms.

Interest continued to run until payment, posting of security, or bankruptcy.

The respondents, having been largely successful on the main appeals concerning the interpretation of seizure and detention remedies under the Airport Transfer (Miscellaneous Matters) Act and the Civil Air Navigation Services Commercialization Act, sought costs totaling over $631,000.

The court declined to award costs to any party.

The court reasoned that the proceedings raised novel issues of statutory interpretation that engaged the public interest, the respondents were not completely successful as their cross-appeals were dismissed, and the appellant airport authorities acted reasonably in bringing the appeals given the lack of established jurisprudential authority.

The appellants appealed a decision finding oppressive conduct and breach of fiduciary duty.

The motion judge found that the corporation was represented to the respondent investor as the owner of a specific technology, but the individual appellant deliberately withheld title to the patents for his own purposes.

The Divisional Court upheld the findings, noting that the investor was entitled to rely on the representations made and that the doctrine of reasonable expectations applied.

The court also upheld the remedy, which included declaring the corporation the owner of the process and directing an accounting for profits derived from a related contract.

The appeal was dismissed.