Dennis M. Touesnard

The court considered whether to rescind an agreement of purchase and sale for farmland and a residence, where the defendant failed to register a severance as required, preventing the plaintiff from regaining title to the house.

The court found the defendant breached a fundamental condition of the agreement and ordered a new severance application, with rescission as an alternative remedy if the severance could not be obtained.

The court also addressed allocation of severance costs, property taxes, and the removal of a fence.

The Ken Breau Corporation, a Dairy Queen franchisee, sought a declaration that DQC Canada Inc. breached its statutory obligations of fair dealing and good faith under section 3 of the Arthur Wishart (Franchise Disclosure) Act, 2000, and sought to restrain DQC from awarding a new restaurant to another franchisee within eight kilometres of its territory.

The court found that DQC had not breached its obligations, as the Franchise Agreement clearly defined the applicant’s territory and DQC’s actions were consistent with both the contract and commercial standards.

The application was dismissed.

The appellant appealed the dismissal of her motion to add three individual respondents as defendants in her wrongful dismissal action, alleging they were common employers.

The motion judge found the claim against them statute-barred due to the expiration of the limitation period, as the appellant knew or ought to have known the material facts supporting her claim at the time of termination.

The Court of Appeal upheld this decision, finding no reversible error in the motion judge's application of discoverability and common employer principles, and dismissed the appeal.

The plaintiffs, vendors of a property, moved for summary judgment against the defendants, purchasers, for breach of an Agreement of Purchase and Sale (APS).

The defendants failed to close the deal, citing an unfulfilled requisition regarding oil and gas leases on title.

The court found that the oil and gas leases did not go to the root of title, and therefore, the unfulfilled requisition did not provide a valid defence for the defendants' failure to close.

The court granted summary judgment on both liability and damages, finding that the plaintiffs had reasonably mitigated their losses by reselling the property.

Damages were assessed based on the difference in sale prices and other related expenses, excluding claims for personal time, mileage, and storage.

The appellant, Ekum-Sekum Incorporated (Brantco Construction), appealed a trial judge's finding that equitable set-off was available to the respondents, Lanca Contracting Limited et al., arguing that the respondents did not come to court with clean hands.

The Court of Appeal found that the two construction contracts were related, making equitable set-off available.

The trial judge had properly exercised discretion, recognizing both parties' contract breaches but not finding unclean hands.

The appellate court also upheld the trial judge's finding that a claimed breach of trust under the Construction Lien Act was not proven, as funds were adequately accounted for.

The appeal was dismissed, as the appellant failed to establish a palpable and overriding error of fact or an extricable error of law.

Following the dismissal of the plaintiff's breach of contract claim after a liability trial, the defendant, Revera Inc., sought partial indemnity costs.

The plaintiff acknowledged entitlement to costs but disputed the amount.

The court, applying Rule 57.01 of the Rules of Civil Procedure, assessed the reasonableness of the claimed costs, noting that a costs award is not a simple mathematical calculation.

The judge found the time docketed by the defendant's counsel and the extent of senior counsel involvement to be excessive for the simplicity of the factual dispute, despite the significant amount in issue ($1.4 million).

The court awarded partial indemnity costs significantly lower than requested, emphasizing that the unsuccessful party should not bear the cost of "overpreparation" or unnecessary senior counsel involvement.

The plaintiff, Jetstream Environmental Solutions, sued the defendants, Normerica Realty Corporation and Normerica Inc., for breach of contract and unjust enrichment related to emergency waste removal services after a roof collapse at Normerica's plant.

The court found a clear and unambiguous contract existed between the parties, based on their prior working relationship and Normerica's directive to "do whatever it takes" to resolve the emergency.

The court found Normerica liable for breach of contract, rejecting their retrospective complaints about the work and billing process as disingenuous.

Judgment was granted in favour of Jetstream for the full outstanding amount plus interest, and the construction lien was declared properly placed.

The appellants appealed a trial judgment awarding the respondents general damages of $75,000 and punitive damages of $75,000 for defamation.

The trial judge found that the appellant, a City manager, made defamatory statements about the respondents' business during a meeting with a supplier representative, acted maliciously in response to complaints the respondent had made about him, and abused his position as a public officer.

The Court of Appeal upheld the findings of defamation, malice, and abuse of position, but set aside the punitive damages award, finding that the trial judge failed to analyze whether the compensatory damages were adequate to achieve the objectives of retribution, deterrence, and condemnation.

The appeal was allowed in part.

The defendant, Ryszard Musiala, brought a motion for summary judgment seeking to dismiss the plaintiff Trustee's claim, lift a Certificate of Pending Litigation on a property, and declare no interest for the bankrupt or Trustee in the property.

The plaintiff, J.P. Graci & Associates Ltd., as Bankruptcy Trustee, opposed the motion, arguing that genuine issues requiring a trial existed regarding the beneficial ownership of the property and the legal impact of a lump-sum mortgage payment made by Musiala.

The court found significant inconsistencies in Musiala's evidence and insufficient facts to confidently determine the parties' interests or the application of equitable remedies like subrogation.

Consequently, the motion for summary judgment was dismissed, as a trial was deemed necessary to resolve the complex factual and legal disputes and avoid inconsistent findings.

The appellant appealed a motion judge's decision declining to approve the sale of property (79 Bramsteele Road, Brampton, Ontario) by a court-appointed receiver to the appellant.

The property was owned by a religious charitable organization that became insolvent.

The receiver entered into an agreement to sell the property to the appellant, but the motion judge declined approval, instead establishing a process to permit assignment of the first mortgage held by the respondent mortgagee.

The Court of Appeal found the motion judge erred in applying the second Soundair duty by failing to properly consider the interests of creditors and the appellant as purchaser.

The court allowed the appeal and ordered a new hearing.

A homeowner appealed a lower court decision that upheld a greenhouse operator's use of storing and grinding wood on-site as an accessory use under the local zoning bylaw.

The homeowner sought a declaration that the wood storage and grinding operations violated the zoning bylaw.

The Court of Appeal upheld the lower court's decision, finding that storing and grinding wood for heating greenhouses constitutes a natural and normal incident of operating a greenhouse and therefore qualifies as an accessory use under the bylaw definition.

The court rejected the homeowner's argument that a restrictive interpretation of "naturally and normally incidental" was required.

On appeal from a motion judge's decision to enforce a settlement agreement, the appellants challenged the motion judge's finding that a verbal settlement agreement had been reached between the respondent's counsel and the litigation administrator of the deceased defendant's estate on February 9, 2016.

The appellants argued that the motion judge erred in failing to apply Rule 49.09, in finding there was no genuine issue regarding intent to create a legally binding agreement, and in failing to consider whether the settlement should be enforced.

The Court of Appeal dismissed the appeal, finding that Rule 49 did not apply as no Rule 49 offers were served, that the motion judge's finding of a binding agreement was supported by detailed reasons with no palpable and overriding error, and that the motion judge had fully considered all relevant factors regarding enforcement.