Donald R. Good

Following a successful motion for leave to appeal, the defendants sought costs on a partial indemnity basis.

The plaintiffs agreed the amounts were reasonable but argued payment would create a tremendous financial burden due to their impecuniosity.

The court fixed the costs as requested but, exercising its discretion under Rule 57.03(1), ordered that the costs be payable following the final resolution of the matter by the Divisional Court.

The plaintiffs brought an action for damages and injunctive relief in nuisance against their neighbours, alleging that smoke and odour from the defendants' outdoor wood burning furnace interfered with the use and enjoyment of their property.

The plaintiffs suffered from severe, pre-existing respiratory illnesses.

The court applied the two-part test for private nuisance from Antrim Truck Centre, finding that while the interference might be substantial given the plaintiffs' special vulnerabilities, it failed the objective test of being unreasonable to an ordinary occupier.

The action was dismissed.

Following trial, the court determined costs relating to both the main action for unpaid invoices and the defendant’s counterclaim alleging damages relating to contaminated feed.

The plaintiff obtained judgment on the main action and successfully defended the counterclaim.

The court applied the principles governing costs under Rules 49 and 57 of the Rules of Civil Procedure, emphasizing proportionality, reasonableness, and the expectation of the losing party.

Substantial indemnity costs were awarded for the main action due to a valid Rule 49 offer to settle, while partial indemnity costs were awarded for defending the counterclaim because no reprehensible conduct justified elevated costs.

The court reduced certain expert disbursements and fees as excessive or unnecessary before fixing total costs.

A group of farmers brought an application seeking a declaration that a Crown corporation administering agricultural support programs was bound by the two‑year basic limitation period under the Limitations Act, 2002 when attempting to recover program overpayments.

The applicants argued that, as a Crown agent rather than the Crown itself, the corporation could not rely on the statutory exemption from limitation periods applicable to Crown claims related to economic programs.

The court held that references to the Crown in s. 16(1)(j)(i) of the Act include Crown agents acting within the scope of their statutory authority.

As the debt claims arose from government economic programs administered by the corporation as a Crown agent, the exemption applied and the two‑year limitation period did not bar recovery proceedings.

The application was dismissed with costs.

A commercial feed supplier sued for payment of unpaid invoices for rabbit feed supplied to a rabbit farm.

The defendant admitted the invoices but counterclaimed for negligence and breach of contract, alleging the feed was contaminated with vomitoxin (DON) causing illness and increased mortality among rabbits.

The court held that the defendant failed to prove on a balance of probabilities that the feed caused the mortality spike, preferring expert evidence suggesting rabbits were relatively tolerant to the levels detected.

The court also rejected claims for breach of an implied condition of merchantable quality under s. 15 of the Sale of Goods Act because no industry tolerance level existed and causation was not established.

Judgment was granted for the supplier for the unpaid invoices with statutory interest, and the counterclaim was dismissed.

The plaintiff, assignee of a debt owed by the defendants under minutes of settlement, sued for the outstanding principal and accumulated interest.

The defendants acknowledged the principal debt but sought equitable relief from the accumulated interest under section 98 of the Courts of Justice Act, arguing they withheld payment because the plaintiff failed to provide proper notice of the assignment.

The court found that the defendants' conduct in withholding payment was not reasonable and that the contractual interest rate did not constitute a penalty or forfeiture.

Judgment was granted in favour of the plaintiff for the principal and accumulated interest.

The defendants appealed an order of a Master dismissing their motion for a sealing order over various motion materials in a consolidated commercial dispute involving allegations of conspiracy, defamation, and misuse of confidential business information.

The appellants argued the Master misapplied the jurisprudence governing sealing orders and improperly rejected affidavit evidence under rule 39.01(4) of the Rules of Civil Procedure.

The court held that the Master committed no palpable and overriding error and correctly applied the open courts principle and the test articulated in Sierra Club of Canada v. Canada (Minister of Finance).

The evidence did not establish that the documents contained confidential or commercially sensitive information warranting the extraordinary remedy of a sealing order.

The appeal was dismissed.

The Burnbrae defendants brought a motion for summary judgment to dismiss the plaintiffs' claims against them.

The plaintiffs, who were competitors in the egg industry, alleged that Burnbrae conspired with others to drive them out of business by supplying deficient eggs, misusing confidential information, and interfering with contractual relations.

Applying the new summary judgment framework from Hryniak v. Mauldin, the court found no evidence to support the plaintiffs' sweeping allegations against Burnbrae.

The court concluded that Burnbrae's actions were legitimate competitive behavior and dismissed the action against the Burnbrae defendants.

The defendants brought a motion for partial summary judgment seeking dismissal or striking of allegations concerning manipulation of egg grading data and conspiracy in the Ontario egg industry.

The plaintiffs alleged the defendants deliberately altered grading machine settings to include cracked or dirty eggs in Grade A packages and conspired with other industry participants to harm the plaintiffs’ business and restrict competition.

The defendants argued the plaintiffs had produced no admissible evidence and had failed to put their best foot forward.

The court held that the case involved complex factual disputes, credibility issues, expert evidence concerning egg grading technology, and significant outstanding documentary production including large volumes of electronic records.

Applying the Rule 20 summary judgment framework and the “full appreciation” test, the court concluded the motion was premature and that the issues required the full machinery of a trial.

The moving defendants sought a sealing order under subsection 137(2) of the Courts of Justice Act to seal various motion materials, transcripts, and future filings in a commercial civil action.

The court applied the confidentiality order test from Sierra Club of Canada v. Canada (Minister of Finance), requiring proof that disclosure would pose a serious risk to an important commercial interest and that the benefits of confidentiality outweigh the open court principle.

The only supporting evidence was an affidavit from counsel asserting that certain documents contained proprietary commercial information, but the affidavit relied on belief and unsupported assertions contrary to subrule 39.01(4) and the best evidence rule.

The court found insufficient evidence of a real and substantial risk to commercial interests and declined to give weight to the contested statements.

The motion for a sealing order was dismissed.

The defendant mortgagee brought a motion for summary judgment dismissing the plaintiff mortgagor’s action alleging an improvident power of sale of farm property, or alternatively for security for costs.

The plaintiff argued that the mortgagee failed to take reasonable precautions to obtain true market value and relied on outdated appraisals when selling the property, while a retrospective expert appraisal suggested a significantly higher value.

The court held that evidentiary gaps, including untested appraisal evidence and unanswered allegations regarding the conduct of the mortgagee’s solicitor, created genuine issues requiring a trial.

The court also refused security for costs, finding the moving party failed to establish any ground under Rule 56.01.

Both branches of the motion were dismissed.