Michael Kavanagh

The plaintiff brought a motion for summary judgment against his former business partner for breach of a promissory note.

The defendant argued the contract was frustrated by a third-party fraud and challenged the escalatory interest rate, which reached 60%.

The court rejected the frustration defence as improperly pleaded and factually unsupported, and dismissed the plaintiff's claim for fraudulent misrepresentation.

The court enforced the promissory note's 60% interest rate, finding it did not violate the Criminal Code due to transitional provisions, and awarded the plaintiff over $3.6 million.

The appellants, representative plaintiffs in a certified class proceeding concerning universal life insurance policies, appealed the dismissal of their motion to amend their statement of claim and add a new common issue regarding an 'Investment Spread Claim'.

The motion judge refused the amendments on the basis that the claim was a new cause of action that was discoverable in 2016 and therefore statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld the motion judge's decision, agreeing that the claim was not captured by existing pleadings, was discoverable based on a 2016 repricing report, and did not engage a rolling limitation period as it involved discrete decisions rather than periodic breaches.

The plaintiffs in this class proceeding moved to amend their statement of claim to add a new cause of action related to an "investment spread" and sought certification of a new common issue.

The defendant opposed, arguing the claim was time-barred and the amendment would fundamentally alter the certified action.

The defendant also moved to strike portions of the plaintiffs' expert report as irrelevant.

The court dismissed the plaintiffs' motion to amend, finding the claim discoverable in 2016 and thus out of time, and that the amendment would cause non-compensable prejudice and delay.

The court granted the defendant's motion to strike the expert report portions related to the investment spread and profitability, deeming them irrelevant to the certified common issues.

The defendant brought a motion to preclude the plaintiff's expert witness, W. Steve Prince, from testifying regarding the commercial viability of an insurance policy.

The defendant argued Prince's opinion evidence was unnecessary and irrelevant, particularly concerning policy interpretation and profitability assumptions.

The court dismissed the motion, finding Prince's evidence potentially relevant to counter the defendant's assertion that such a policy was "absurd" in 1982, and also relevant if the legal remedy of rectification were required to assess the potential unconscionability of allowing the policy to remain in place.

The appellant appealed an order reducing and ultimately terminating her spousal support.

The respondent, a former police officer, had voluntarily retired at age 51 and successfully argued at first instance that this constituted a material change in circumstances.

The Divisional Court allowed the appeal, finding that the motion judge made a palpable and overriding error in concluding the parties had agreed to an early retirement date during their initial settlement.

The Court held that voluntary early retirement by a payor who retains the capacity to earn income does not constitute a material change in circumstances.

The Court also found errors in the motion judge's application of the rule against double-dipping and the imposition of a termination date on support for a disabled spouse.

The original spousal support order was reinstated.

The applicant sought declarations that a life insurance policy issued in 1982 should be enforced according to its original terms, including paid‑up value calculations appearing on the face of the policy.

The respondent insurer alleged that the paid‑up values in the policy were inserted in error and sought rectification to reduce them by a factor of five.

The record contained conflicting affidavit evidence and competing expert opinions regarding the intended structure of the policy and the calculation of paid‑up values.

The court held that the disputes involved material factual conflicts, credibility assessments, and complex issues relating to rectification and limitation periods.

As a result, the matter could not properly be resolved on an application record and required a trial.