Duncan Jared Brown

The court considered whether to dismiss the plaintiffs' action for delay under Rule 48.14 of the Rules of Civil Procedure.

The plaintiffs argued that the delay was due to their former counsel and the conduct of the defendants, and that they always intended to prosecute the action.

The court refrained from deciding the motion, directing that the former counsel be served with the motion materials and given an opportunity to respond, as the allegations against him could affect his interests and the fairness of the process.

The First Nations moved to vary costs awards against the Estate of William Albin Herold, seeking to make Jeffrey S. Herold, the Estate Trustee, jointly and severally liable for over $190,000 in costs.

This motion was brought under Rule 59.06(2)(a) after the First Nations discovered that Mr. Herold had personally received a transfer of Lot 35, the property forming the basis of the Estate's claim to certain islands, a fact not disclosed during the original litigation.

The Court of Appeal dismissed the motion regarding Supreme Court of Canada costs, stating it lacked authority, but granted the variation for its own costs awards.

The court found that the non-disclosure was a material fact, not a mere irregularity, and that Mr. Herold was the true litigant, satisfying the "person of straw" test for imposing costs on a non-party.

This is a costs endorsement following a successful appeal by the Attorney General of Canada and several First Nations against the Estate of William Albin Herold.

The Court of Appeal had previously allowed the appeals and set aside the lower court orders.

In this endorsement, the court fixed the costs of the proceedings below at $154,530.76, awarded to the appellant First Nations, as the Attorney General of Canada did not seek costs below.

The court also varied its previous appeal costs award, granting the full $43,000 (inclusive of disbursements and taxes) to the appellant First Nations, with no costs awarded to the Attorney General of Canada on appeal, in accordance with a prior agreement between the parties.

The Estate of William Albin Herold claimed ownership of three islands in Lake Katchewanooka, arguing they were conveyed as part of Lot 35 by Letters Patent in 1868, despite having separated from the mainland due to rising water levels.

The application judge found in favour of the Estate, applying a "Flooding Principle" to fix the boundary and concluding that treaties with First Nations did not affect the Crown's right to sell.

The Court of Appeal allowed the appeals by the First Nations and the Attorney General of Canada, finding that the application judge made extricable errors of law by failing to objectively ascertain the parties' intentions in the Letters Patent, misapplying the Flooding Principle, and not properly considering the Crown's treaty obligations.

The appellate court concluded that the Letters Patent did not convey the islands, as they were physically separate, separately identified, and subject to specific Crown obligations under Treaty 78.

An applicant sought a determination of rights under an employment agreement, alleging that a termination for cause provision violated the Employment Standards Act, 2000 (ESA), rendering the entire early termination clause void and entitling him to common law notice for the unexpired term of a fixed-term contract.

The court found that a valid employment contract was concluded.

While the "termination for cause" provision did not comply with the ESA due to a lower "just cause" standard compared to the ESA's "wilful misconduct," the court held that this specific clause was severable from the rest of the early termination provisions.

The "termination without cause" provision, which was ESA-compliant, remained valid and governed the early termination.

As the applicant never commenced employment and did not work for more than three months, he was not entitled to any notice, pay in lieu of notice, benefits, or severance pay under the ESA.

The court also noted that the employer's actions could be understood as negligent misrepresentation, but this was coincidental to the ESA violation.

The appellant, a lawyer, appealed from a summary judgment order dismissing his action to collect an account for legal services in the amount of $51,493.37.

The appellant's sole ground of appeal was that the motion judge erred in concluding there was no material non-disclosure or fraudulent representation by the respondents regarding the release of the account or during the assessment proceeding.

The Court of Appeal found no error in the motion judge's findings of fact, which were fully supported by evidence, including that the respondent was aware of the appellant's outstanding action 14 months before signing the release, that the appellant was aware of the assessment proceeding, and that the respondents were entitled to rely on counsel's representations.

The appeal was dismissed with costs fixed at $15,000.

The plaintiffs, Mi5 Print & Digital Communications Inc. and 2214264 Ontario Inc., sought an interlocutory injunction against their former key employee, Craig Larmer, and other defendants for breach of fiduciary duties, misappropriation of confidential information, and solicitation of clients.

Larmer, a Vice-President, abruptly resigned and diverted Mi5's clients to his wife's reactivated business, LCS Imaging, and other defendants (Pyxalis Inc., Ronald Morgan, Barrie Williams, and Marvin Foy Marketing Incorporated).

The court applied the three-part test for interlocutory injunctions, finding a strong prima facie case against Larmer due to his fiduciary role and clandestine pre-resignation activities.

The Pyxalis defendants were found to have knowingly assisted Larmer.

The court also found irreparable harm due to the difficulty in quantifying loss of goodwill and damaged client relationships, and that the balance of convenience favored granting the injunction to restore fairness.

An interim interlocutory injunction was granted for one year, restraining the defendants from engaging in new activities with the specified clients, subject to existing contracts, and requiring strict accounting.