Dennis M. Touesnard

The defendant bankruptcy trustee brought a motion for summary judgment to dismiss the plaintiff's action for conversion and negligence on the basis that the two-year limitation period had expired.

The plaintiff claimed a half-interest in a boat that her bankrupt husband had purportedly gifted to their son, which the trustee subsequently seized and sold.

The court found that the trustee took possession of the boat on May 30, 2011, and the statement of claim was issued exactly two years later on May 30, 2013, making it within the limitation period.

The court also noted that the alleged conversion likely occurred when the boat was sold, not when possession was taken.

The motion for summary judgment was dismissed.

A contractor commenced an action to enforce payment of the balance owing under a contract for the supply and installation of polyurethane spray foam insulation at an industrial property.

The defendants refused payment alleging extensive overspray damage to equipment and asserting that the balance had been forgiven due to deficient workmanship.

The court found that significant overspray occurred and that the contractor’s workmanship was substandard, but rejected the alleged agreement to forgive the balance and found the defendants had continued using the equipment without remediation while preventing the contractor from attempting cleanup.

Applying a reasonable reduction to account for the deficiencies, the court awarded the contractor a reduced balance of the contract price and dismissed the defendants’ counterclaim.

The contractor was also granted a construction lien for the amount of judgment and partial indemnity costs.

The plaintiffs, private lenders, advanced mortgage funds to the defendants for the purchase of a farm and equipment, secured by a general security agreement (GSA) on the equipment.

The defendant who sold the farm and equipment later removed and sold some of the equipment after the purchasers defaulted and the plaintiffs took possession of the farm.

The plaintiffs sued the seller for conversion and the purchaser for fraudulent misrepresentation.

The court found that property in the equipment passed to the purchaser on closing, giving the plaintiffs a valid GSA.

The seller was found liable for conversion and ordered to pay $35,533 in damages.

The claims against the purchaser and the seller's counterclaim and crossclaim were dismissed.

The successful appellant sought costs of the trial and the appeal.

The respondents argued that no trial costs should be awarded because the judgment amount fell within the Small Claims Court jurisdiction.

The Divisional Court rejected this argument, noting the Small Claims Court limit was $10,000 when the claim was issued, the defendants had launched a $65,000 counterclaim, and the plaintiff had made a reasonable early offer to settle for $15,000.

Applying the principle of proportionality, the court awarded the appellant trial costs fixed at $25,000 and appeal costs fixed at $10,000.

The defendant brought a summary judgment motion seeking dismissal of an action for specific performance and damages arising from a failed real estate transaction, and alternatively sought discharge of a certificate of pending litigation.

The purchaser failed to close on the contractual closing date due to a series of unforeseen issues beyond its control, though the vendor refused to close the following day.

The court held that allegations that the vendor acted in bad faith by relying on the “time of the essence” clause to terminate the contract raised genuine issues requiring a trial.

However, the court concluded the property was acquired for investment purposes and the purchaser failed to establish that the property was unique.

The certificate of pending litigation was therefore discharged while the underlying action proceeded.

The applicant filed a human rights application alleging sex discrimination and reprisal in her employment.

The respondent requested that the application be dismissed under s. 45.1 of the Human Rights Code, arguing that an inspection and orders by an Occupational Health and Safety Inspector dealt with the substance of the application.

The Tribunal denied the request, finding that the Inspector's orders related to machine safety and worker representation, and did not address the applicant's specific allegations of discriminatory treatment or workplace harassment.

The appellant contractor appealed a trial judgment that dismissed his claim for unpaid renovation fees and the respondents' counterclaim for defective work, while ordering the appellant to pay substantial indemnity costs.

The Divisional Court allowed the appeal, finding the trial judge erred in law by implying a contractual term requiring the appellant to provide warranties, which contradicted the express written terms of the contract.

The court set aside the trial judgment, dismissed the counterclaim, and awarded the appellant his unpaid invoices totaling $22,727.54.

The appellant appealed a summary judgment decision in favour of the respondent bank regarding a loan default.

The appellant sought to introduce fresh evidence, including an affidavit from a signing officer, to argue the loan was intended for a company rather than him personally.

The Court of Appeal dismissed the appeal, finding the fresh evidence was available prior to the summary judgment hearing and lacked sufficient detail to be meaningful.

The court held the appellant failed to put his best foot forward, and the motion judge made no errors in granting summary judgment.

The appellant appealed a summary judgment granted in favour of the respondent bank.

The appellant, who was self-represented at the motion, sought to adduce fresh evidence explaining his failure to defend the motion due to personal circumstances and asserting that his employer was responsible for two of the three loans in dispute.

The Court of Appeal admitted the fresh evidence, finding that the appellant's self-represented status and personal circumstances justified his failure to adduce the evidence earlier.

The Court allowed the appeal in part, setting aside the judgment regarding the two disputed loans and remitting the matter back to the Superior Court.

The moving parties brought a motion to review an order of a single judge of the Court of Appeal, which refused an extension of time to apply for leave to appeal.

The moving parties had claimed at trial that they intended only to provide a character reference for the main borrowers, but the trial judge rejected their evidence.

Their appeal to the Divisional Court was dismissed.

The Court of Appeal agreed with the single judge that there was no basis for granting an extension of time, as the proposed leave motion raised only issues of credibility and had no chance of success.

The motion was dismissed with costs fixed at $3,000.

The appellants co-signed a bank loan for a third party who subsequently defaulted and declared bankruptcy.

The bank obtained judgment against the appellants at trial.

On appeal, the appellants argued the trial judge demonstrated a reasonable apprehension of bias and failed to properly assess conflicting evidence regarding their understanding of the loan documents.

The Divisional Court dismissed the appeal, finding no apprehension of bias and no palpable and overriding error in the trial judge's factual findings.

However, the court granted judgment on the appellants' crossclaim against the primary borrower, which the trial judge had overlooked.

The appellants co-signed a loan for a third party who subsequently defaulted.

The respondent bank obtained judgment against the appellants at trial.

On appeal, the appellants argued the trial judge demonstrated a reasonable apprehension of bias and made palpable and overriding errors in finding they understood their obligations as co-signers.

The Divisional Court dismissed the appeal, finding no apprehension of bias and deferring to the trial judge's factual findings that the appellants were informed of their liability.

However, the court granted the appellants' crossclaim against the primary borrower, which the trial judge had overlooked.