David Sherriff-Scott

Following the applicant's success on an application regarding the end date of a contract, the court determined the issue of costs.

The court found that the respondent's conduct, which included taking inconsistent positions throughout the dispute and failing to meaningfully engage in settlement negotiations, warranted an elevated costs award.

The court fixed the applicant's costs on a substantial indemnity scale in the amount of $99,855.00.

The plaintiff sought leave to issue an alias writ of seizure and sale and a notice of garnishment against a judgment debtor who had changed his name and used multiple aliases to evade enforcement of a judgment.

The defendant had been convicted of mail and wire fraud in the United States, ordered to pay restitution, and subsequently deported to Canada where he fraudulently obtained a name change.

After locating the defendant in Niagara-on-the-Lake through investigative efforts, the plaintiff brought an ex parte motion for leave to issue enforcement mechanisms in the defendant's legal name and known aliases.

The court granted the motion, finding that the plaintiff had satisfied the low evidentiary threshold for leave and that it was in the interests of justice to permit enforcement against the defendant's aliases to prevent further evasion.

The applicant sought a declaration regarding the end date of a contract for the supply of telephones, televisions, and multimedia terminals to the applicant's inpatient facilities.

The original agreement commenced in September 2003 for 9.5 years.

An amending agreement in 2009-2010 extended the term by 7 years to March 1, 2020, and introduced new multimedia terminals.

The respondent argued the contract contained an alternative term triggered upon completion of terminal installation in July 2014, extending the contract to January 2031.

The court applied principles of contract interpretation and found the alternative term was vague and unenforceable.

The court also found the respondent was precluded by the doctrine of election from asserting the alternative term, having previously relied on the contract's terms in the commission dispute.

The court declared the contract term to be September 1, 2003 to March 1, 2020.

The plaintiff, a home décor retailer, brought a motion for default judgment against the defendant landlord for breach of a 10-year commercial lease.

The defendant failed to complete required work and provide possession of a larger premises, and was noted in default.

The plaintiff sought a declaration that the lease was validly executed, specific performance of the lease, and damages.

The court found the lease valid and breached, granted specific performance, determining the property was "unique" due to the plaintiff's business needs and distributor agreements.

The court distinguished the case from the concerns raised in Argyll regarding long-term supervision of specific performance for commercial leases.

The claim for damages was adjourned until they fully crystallized.

The plaintiff, a former Minister of State, brought a motion to compel answers to questions refused during the examination for discovery of the defendants, a lawyer and his law firm.

The defendants had refused to answer questions based on solicitor-client privilege and parliamentary privilege.

The court held that asserting privilege was not a collateral attack on a previous order refusing to strike the claim.

The court upheld the assertion of parliamentary privilege regarding testimony before a parliamentary committee.

However, the court found the assertion of solicitor-client privilege to be overbroad and ordered the defendants to answer certain questions that did not reveal privileged communications.

Following the dismissal of the plaintiff's summary judgment motion regarding a commercial lease and parking dispute, the successful defendant sought costs of $586,141.79 on a substantial indemnity scale.

The court declined to award substantial indemnity costs, finding the plaintiff's conduct was not reprehensible and noting that Rule 49.10 limits a defendant to partial indemnity costs even when the plaintiff's claim is completely dismissed.

The court awarded the defendant costs of $398,000 on a partial indemnity basis, finding the time spent and hourly rates reasonable given the complexity and the $4.6 million claim.

The Professional Centre brought a motion for summary judgment against The Ottawa Hospital concerning the interpretation of parking provisions in a 49-year lease and related Memorandum of Agreement.

The Professional Centre alleged breaches regarding the availability of 250 parking spaces, remittance of revenue from 40 parking spaces, and unauthorized use of encroaching parking spaces and an access road.

The Hospital denied any breach, asserting it exercised contractual discretion in good faith.

The court dismissed all of the Professional Centre's claims, finding no breach of the lease, that the Hospital had an implied easement over the access road, and that the Professional Centre failed to prove damages, including a high vacancy rate, were caused by the alleged parking issues.

The plaintiff, Richcraft Homes Ltd., initiated an action against several defendants, including Urbandale Corporation, Urbandale Construction Limited, and Lawrence Weinstein, seeking declaratory relief for oppressive conduct, breach of contract, and punitive damages related to land development projects.

The defendants brought motions under Rule 21 to strike Richcraft's claims, arguing they failed to plead material facts supporting a reasonable prospect of success.

The court granted the motions, finding that Richcraft did not demonstrate compensable injury or a likelihood of threatened oppressive conduct, nor an independent actionable wrong for punitive damages.

Leave to amend was denied due to the absence of proposed amendments or supporting evidence.

The appellants, the Better Business Bureau of Ottawa-Hull Incorporated and Better Business Bureau of Ottawa-Hull Inc., appealed a Divisional Court decision that had allowed an appeal by Walsh Energy Inc. in a defamation action.

The trial judge had dismissed the defamation claim, finding that the BBB's D- rating assigned to Walsh was not defamatory and was protected by the defence of fair comment.

The Divisional Court reversed, finding the D- grade was defamatory and ordering a new trial on the issues of fair comment, malice, and damages.

The Court of Appeal allowed the BBB's appeal, finding that the Divisional Court erred in ordering a new trial on fair comment, as the record was sufficient to establish the defence.

The court also reduced the trial judge's costs award from $348,135.96 to $175,000 as being excessive and contrary to the fundamental objective of access to justice.

The parties sought directions concerning the form of the order following the disposition of an appeal in a defamation action.

The parties disagreed on the scope of issues to be sent back for re-trial.

The Divisional Court agreed with the appellant that the new trial judge should not be bound by the previous trial judge's findings on fair comment, malice, and damages, as the previous judge had been dismissive of the claims.

The court directed that the appellant's draft order be issued, remitting these issues for a full retrial without factual constraints.

The appellants, heating and air conditioning businesses, sued the Better Business Bureau (BBB) for defamation after the BBB assigned them a 'D-' rating on its website.

The trial judge dismissed the action, finding the rating was not defamatory and was protected by fair comment and qualified privilege.

On appeal, the Divisional Court held that the trial judge erred in law by failing to determine the plain and ordinary meaning of the rating, which was clearly defamatory.

The court also found that the BBB did not enjoy qualified privilege for general ratings published to the public.

The appeal was allowed, the trial judgment set aside, and the matter remitted for a new trial on the issues of fair comment, malice, and damages.

The defendant municipality brought a summary judgment motion seeking dismissal of an action alleging bad faith in cancelling a request for proposals for municipal garbage collection services.

The plaintiff bidder alleged that the municipality improperly relied on a privilege clause after negotiations with another bidder and after treating the plaintiff’s bid as the lowest based on a clarified unit price.

The court held that the municipality was contractually entitled to cancel the RFP pursuant to the privilege clause provided it acted in good faith and for legitimate municipal purposes.

Evidence showed the cancellation arose from legal concerns about the bidding process, bid compliance issues, and evolving municipal policy favouring waste diversion and recycling.

The court concluded there was no evidence capable of establishing bad faith and granted summary judgment dismissing the action.

Following earlier reasons granting relief in a dispute involving charitable corporations and trust‑like obligations over charitable assets, the successful applicants sought substantial indemnity costs against the respondent foundation.

The court considered allegations that the respondent had advanced reckless and unfounded accusations of dishonesty, breach of trust, and misappropriation during the proceedings.

It also reviewed the applicants’ unaccepted Rule 49 offer to settle and the complexity and importance of the litigation concerning charitable corporations, fiduciary duties, and the Charities Accounting Act.

The court concluded that the respondent’s conduct, including unsupported allegations and misrepresentations of fact, justified an award of substantial indemnity costs.

Costs of $454,686.19 were awarded to the applicants, and additional costs were awarded to the Public Guardian and Trustee.

The appellant sought a publication ban on the name of its employee, who had been acquitted of historical sexual abuse charges, in relation to evidence given at the Cornwall Public Inquiry.

The Commissioner refused the ban, finding the public interest in openness outweighed the employee's privacy interests.

The Divisional Court dismissed an application for judicial review, applying a reasonableness standard.

The Court of Appeal dismissed the appeal, holding that the Divisional Court correctly identified reasonableness as the standard of review and that the Commissioner reasonably applied the Dagenais/Mentuck test in balancing the protection of innocence against the public interest in an open inquiry.

The applicant sought judicial review of a ruling by the Commissioner of the Cornwall Public Inquiry denying a publication ban on the identity of one of its employees.

The Divisional Court determined the appropriate standard of review was reasonableness simpliciter.

The court found the Commissioner did not err in concluding the employee's identity was relevant to the inquiry's mandate, nor did he act unreasonably in applying the Dagenais/Mentuck test to deny the publication ban.

The application for judicial review was dismissed.

The appellants, including the builder and contractors, appealed a trial judgment awarding damages to the respondent condominium corporation for structural deficiencies in a block back-up wall.

The appellants argued the action was barred by res judicata, issue estoppel, and the six-year limitation period, and challenged the findings of breach of warranty and negligence.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the structural defects could not have been discovered earlier with reasonable diligence, and that the warranty clause, interpreted contra proferentem, did not limit claims to one year.

The damages assessment was also upheld.

The moving party sought an adjournment of its motion for leave to appeal an Assessment Review Board decision, pending the outcome of its concurrent request for a review of the same decision by the Board.

The respondents opposed the adjournment, arguing it would result in a multiplicity of proceedings and give the moving party 'two kicks at the can'.

The Divisional Court granted the adjournment, holding that parallel proceedings are authorized by statute and that administrative proceedings should be allowed to run their full course before judicial review is pursued.