Eric Sherkin

The defendants, Toromont Industries Ltd. (and Toromont Cat) and Caterpillar Inc., brought motions for summary judgment to dismiss the plaintiff Haliburton Forest & Wildlife Reserve Ltd.'s claims for breach of contract, negligence, and negligent misrepresentation related to the purchase of forestry equipment.

Toromont relied on entire agreement (EA) and limitation of liability (LL) clauses in the sales contracts.

Caterpillar argued it was not a party to the sales contracts and that its limited warranty excluded liability.

The court granted partial summary judgment to Toromont, dismissing most of Haliburton's claims but allowing a claim under the Sale of Goods Act for the purchase price of the equipment to proceed.

The court granted full summary judgment to Caterpillar, dismissing all claims against it, finding no privity of contract for SGA claims, no reasonable reliance on representations, and no duty of care for pure economic loss.

Following dismissal of a trustee’s motion seeking directions to terminate certain condominium purchase agreements, the court addressed costs.

The purchasers sought costs against the trustee or alternatively against mortgagees who supported the trustee’s position.

The court held that although the mortgagees were not formal parties to the motion, they actively participated and had a direct financial interest in the outcome, making it appropriate to hold them responsible for costs.

The court also considered principles governing costs for self-represented litigants and limited recovery to proven disbursements where no foregone remunerative activity was demonstrated.

Costs were awarded to the purchasers and made payable jointly and severally by the mortgagees.

The court-appointed Trustee of an insolvent condominium development brought a motion for advice and directions, seeking permission to terminate pre-sale purchase agreements for buyers who had purchased two parking units, due to a shortage of parking spaces in the building.

The Trustee proposed that these buyers relinquish one parking space for a price reduction, or face termination of their agreements.

The court applied the test of balancing the equitable considerations of all stakeholders.

Finding that the mortgagees had accepted the risk of the parking shortage and that the purchasers would suffer significant financial hardship and loss of equity if their agreements were terminated, the court dismissed the Trustee's motion.

The bankrupt appealed a registrar’s order lifting the automatic stay under s. 69 of the Bankruptcy and Insolvency Act to permit a creditor’s civil action to proceed.

The creditor alleged that the debt arose from misappropriation of funds received in a fiduciary capacity, potentially falling within s. 178(1)(d) of the Act such that the debt could survive bankruptcy discharge.

The court held that the registrar properly applied the governing legal principles and correctly concluded that the pleadings disclosed a sufficient basis to lift the stay.

The bankruptcy court’s role was not to determine the merits of the underlying claim but only whether sound reasons existed to allow the action to continue.

The appeal was dismissed with costs.

A creditor brought a motion seeking relief from the statutory stay of proceedings under s. 69 of the Bankruptcy and Insolvency Act to pursue a civil action against an undischarged bankrupt.

The creditor alleged that proceeds from the sale of financed vehicles were required to be held in trust and were misappropriated by the bankrupt while acting in a fiduciary capacity.

The court considered whether the claim could potentially fall within the exception in s. 178(1)(d) of the BIA for debts arising from fraud, misappropriation, or defalcation while acting in a fiduciary capacity.

Finding sufficient parallels with cases involving trust breaches and potential fiduciary misconduct, the court concluded that it was equitable to permit the creditor to proceed with its action despite the bankruptcy stay.

The stay was lifted in relation to the creditor’s civil action, with costs reserved to the trial judge.