Dennis M. Touesnard

The appellants appealed the dismissal of their application seeking to set aside employment agreements between the respondent corporation and an employee, alleging the agreements were oppressive and breached a family law undertaking.

They also appealed the refusal to remove the respondent as a trustee.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's factual findings that the undertaking had expired, the negotiations were not secretive, and the agreements were beneficial to the corporation.

The court also found no basis to interfere with the discretionary decision not to remove the trustee.

In a civil costs decision following settlement of the main action, one defendant sought partial indemnity costs against the co-defendant for both the action and a crossclaim.

The court treated the hearing as a motion for costs and applied the principles of fairness, reasonableness, and proportionality under the Rules of Civil Procedure and s. 131(1) of the Courts of Justice Act.

The court found the responding defendant's litigation position and delayed acceptance of the offer to settle caused unnecessary continuation of the proceeding and additional preparation costs.

While not granting the full amount requested, the court awarded an all-inclusive costs amount reflecting proportionality and the parties' relative success.

The applicants sought the sale of three multi-residential properties owned as tenants in common with the respondents, and an equal division of the proceeds.

The respondents brought a cross-application seeking an unequal division of proceeds based on an alleged settlement agreement negotiated by family members.

The court granted the applications for sale and dismissed the cross-application, finding that the family members who negotiated the alleged settlement lacked ostensible authority to bind the applicants, and that no final agreement had actually been reached.

The properties were ordered to be sold with proceeds divided equally.

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.

The plaintiff paving contractor sued the defendant general contractor for unpaid invoices and extras on a construction project (the Archmill project).

The plaintiff had also refused to perform work on a second, unrelated project (the Burgessville project) until it was paid for the first.

The court found that the plaintiff was entitled to payment for some, but not all, of the disputed extras on the first project.

However, the court also held that the plaintiff's refusal to work on the second project constituted an anticipatory breach of contract.

The defendant was awarded damages for the extra costs incurred to complete the second project, and the court allowed the defendant to equitably set off those damages against the amount owed to the plaintiff on the first project.

The plaintiff's claim for breach of trust under the Construction Act was dismissed.

Two brothers co-owned a family cottage and entered into a co-ownership agreement without legal advice.

When the plaintiff sought to sell his share, a dispute arose over the interpretation and validity of the buy-sell provision.

The plaintiff applied to enforce the provision or alternatively for a sale under the Partition Act, while the defendant applied for rectification of the agreement to match an earlier draft.

The Superior Court of Justice found the buy-sell provision void for uncertainty as it constituted an unenforceable agreement to agree.

The court dismissed the defendant's claim for rectification, finding no evidence of fraud or equivalent conduct.

Ultimately, the court ordered the sale of the property pursuant to the Partition Act and directed the net proceeds to be divided equally.

The defendant brought a motion to stay the plaintiff's action for breach of an agreement of purchase and sale, relying on an arbitration clause in the Tarion Addendum.

The court found that while the dispute fell within the scope of the arbitration agreement, the defendant had waived its right to arbitrate by attorning to the court's jurisdiction and actively participating in the litigation for over 16 months before bringing the motion.

The motion to stay was dismissed, and the defendant was ordered to pay costs.

The plaintiff sought costs of $14,946.31 on a partial indemnity basis following a successful wrongful dismissal action.

The defendant argued the costs were excessive, asserting the net recovery fell within the Small Claims Court jurisdiction and noting the plaintiff's failure on the moral damages claim.

The court rejected the defendant's calculation involving statutory deductions, finding the claim was not within Small Claims Court jurisdiction.

Taking into account the plaintiff's lack of success on moral damages, proportionality, and indemnification, the court fixed costs at $10,000 inclusive.

The moving parties sought leave to appeal an order regarding whether a court can issue a Certificate of Pending Litigation in the face of an arbitration agreement.

The Divisional Court granted the motion for leave to appeal.

As no costs submissions were made, no costs were ordered.

The plaintiff, a 22-year employee, claimed he was constructively dismissed when his employer allegedly demoted him from Regional Sales Manager to Project Manager.

The employer maintained that the plaintiff had always functioned as a Project Manager and that no demotion occurred.

Following a trial, the court found that the employer did not breach an essential term of the employment contract and did not evince an intention to no longer be bound by it.

The court concluded that the plaintiff voluntarily resigned, and the action for wrongful dismissal was dismissed.

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 applicants, purchasers of pre-construction residential units, sought a Certificate of Pending Litigation (CPL) after the respondent vendors terminated the agreements of purchase and sale, relying on an early termination condition, and subsequently offered the units at a 25% price increase.

The respondents argued the court lacked jurisdiction due to a mandatory arbitration clause in the Tarion Warranty.

The court held it retained jurisdiction to issue a CPL under the Courts of Justice Act despite the arbitration clause.

The court granted the CPL, finding a triable issue regarding the respondents' reliance on the early termination condition and concluding that damages might not be an adequate remedy given the unique location and advantageous pricing of the units in a rapidly rising real estate market.

The plaintiff pharmacy sued the defendant retirement residence for breach of contract, alleging the defendant failed to properly deliver a notice of non-renewal to terminate their pharmacy services agreement.

The trial was bifurcated to determine the sole issue of liability: whether the defendant's representative hand delivered the notice to the plaintiff's president on June 16, 2020.

After assessing the credibility of the conflicting witness testimony, the court found on a balance of probabilities that the notice was hand delivered.

The plaintiff's action was dismissed.

The plaintiff employee brought a motion for summary judgment in a wrongful dismissal action under the Simplified Procedure.

The defendant employer alleged just cause for termination based on performance and behavioural issues.

The court found no genuine issue requiring a trial regarding cause, as the employer failed to provide sufficient evidence of misconduct warranting summary dismissal, and set the reasonable notice period at 14 months.

However, because the Simplified Procedure prevented cross-examination on affidavits, the court found a genuine issue regarding mitigation of damages and the value of lost benefits, ordering a minitrial to resolve those specific issues.

Two brothers filed competing applications regarding the buy-sell provision of a cottage co-ownership agreement.

One brother sought to enforce the written agreement, while the other sought rectification based on a prior draft.

The respondent argued the matter should proceed to trial due to factual disputes.

The court determined that the matter could not be resolved on a paper record due to conflicting evidence and credibility issues regarding the drafting and execution of the agreement.

The court ordered the applications consolidated and directed them to proceed to trial.

The plaintiff brought a motion under Rule 25.11 to strike three paragraphs from the defendants' Statement of Defence in an action for negligence and defamation arising from a workplace harassment investigation.

The plaintiff argued the paragraphs were irrelevant, argumentative, speculative, and inserted merely for colour.

The court found that paragraphs 9 and 35 were relevant to the defences of justification, fair comment, and causation of damages, and declined to strike them.

However, the court struck paragraph 20, which alleged the plaintiff refused to pay the defendants' invoice, finding it irrelevant to any cause of action or defence.

The motion was granted in part.