Frederick Scott Turton

Defendants moved for a declaration that service ex juris of a statement of claim in Barbados was invalid.

The plaintiffs had personally travelled from Ontario to Barbados and hand-delivered the claim to the foreign defendants.

The court held that Rule 17.05(3)(b) of the Rules of Civil Procedure requires service in a contracting state to comply with the Hague Service Convention.

Article 10(c) of the Convention requires a document to be transmitted through judicial officers, officials, or other competent persons of the destination state and does not permit a litigant to personally travel abroad and effect service.

The purported service was therefore invalid, the noting in default was set aside, and the plaintiffs’ cross‑motion validating service was dismissed.

The appellants appealed a summary dismissal of their claim that the respondent condominium corporation wrongfully registered liens against their units for unpaid common expenses.

The motion judge dismissed the wrongful registration claim but ordered a trial on the respondent's claim for legal fees related to the liens.

The appellants argued the dismissal might foreclose their ability to contest the legal fees at trial.

The Court of Appeal allowed the appeal to clarify the order, ensuring the appellants can argue both entitlement and amount of the legal fees at trial.

The motion judge's costs order was set aside and reserved to the trial judge.

The defendants appealed a Small Claims Court decision awarding the plaintiff damages for constructive dismissal and unpaid invoices, and finding the individual defendant personally liable.

The Divisional Court upheld the finding of constructive dismissal but set aside the wrongful dismissal damages because the plaintiff failed to adduce any evidence of lost income following his termination.

The court also set aside the finding of personal liability against the individual defendant, as it was not pleaded and the plaintiff had the onus to establish he contracted with the individual rather than the corporation.

The appeal was allowed in part.

The plaintiff brought motions under Rules 5.04 and 26.01 of the Rules of Civil Procedure seeking leave to amend statements of claim in two related actions.

In the 1997 action, the proposed amendments clarified allegations relating to enforcement of a foreign arbitration award.

The court held that the amendments did not introduce a new cause of action but merely provided further particulars and clarification of facts already pleaded, and therefore granted leave to amend.

In the 1998 action, the plaintiff sought to add allegations that a mortgage registered against the defendant’s property was fraudulent and void.

The court found these amendments introduced new causes of action long after the limitation period had expired and refused leave.

Following a trial where the plaintiff was awarded $24,442.42 in damages for personal injury, the court determined the issue of costs.

The defendants argued the plaintiff should be denied costs under Rule 76.13 for failing to use the simplified procedure.

The court found it was reasonable for the plaintiff to have commenced and continued the action under the ordinary procedure, as the damages claimed were originally well above the $50,000 threshold.

The court awarded the plaintiff partial indemnity costs of $36,771.98, reducing the requested amount to account for duplication of efforts caused by the plaintiff's team approach to litigation.

The plaintiff sued the defendant fitness club for a finger amputation injury sustained while using a vertical leg press machine.

The plaintiff alleged his foot slipped off the machine's platform because he had stepped in a puddle of water near a water fountain.

The court found the defendants breached their duty under the Occupier's Liability Act because there was no evidence their maintenance system was actually implemented on the day of the accident.

The court also found the plaintiff was 50% contributorily negligent for failing to ensure his shoes were dry before using the heavy weight machine.

Damages were assessed at $48,884.84 and apportioned equally, resulting in a judgment of $24,442.42 for the plaintiff.

The appellants appealed a trial judgment dismissing their action to discharge a debenture registered against their land.

The trial judge had found that while the ten-year limitation period under the Limitations Act had expired, equitable considerations prevented the appellants from succeeding.

The Court of Appeal allowed the appeal, holding that the trial judge erred by deciding the case on equitable grounds that were neither pleaded nor argued.

Furthermore, the Court held that equitable considerations cannot trump the clear statutory language of sections 4 and 15 of the Limitations Act, which extinguish the right and title to land after ten years.

The debenture was ordered discharged.

The defendants appealed and the plaintiff cross-appealed a trial judgment finding the defendants liable for breach of a settlement agreement and breach of trust under the Construction Lien Act.

The defendants argued that the settlement agreement released the primary corporate defendants from liability, precluding a finding of breach of trust.

The Court of Appeal dismissed the appeal and allowed the cross-appeal, holding that the settlement agreement did not extinguish the primary corporate defendants' liability, as the parent company's liability was as a surety.

The trial judge's judgment was upheld.

The plaintiff sued the defendants for unpaid invoices and a promissory note.

The parties reached a settlement agreement, but the defendants failed to comply with its terms.

The plaintiff then obtained default judgment in the action, which was later set aside because a waiver of defence was still in place.

The plaintiff subsequently sought to enforce the settlement agreement.

The Court of Appeal held that by electing to pursue default judgment, the plaintiff made a binding election at common law to treat the settlement agreement as repudiated and to proceed with the litigation.

Consequently, the plaintiff was precluded from later seeking to enforce the settlement.

The appellant appealed a decision by the Director's Delegate cancelling its Certificate of Revival under the Business Corporations Act.

The Delegate found the certificate invalid because the mandatory consent of the Minister of Finance was not attached to the Articles of Revival.

The Divisional Court dismissed the appeal, holding that the Delegate's decision was reasonable and that the appellant was afforded procedural fairness.

The appellants appealed a summary judgment dismissing their action to discharge a 1979 debenture registered against their lands, which they claimed was unenforceable due to expired limitation periods.

The motion judge had found the debenture was not statute-barred because a receiver had been appointed and its validity was determined in a prior fraudulent conveyance action.

The Court of Appeal allowed the appeal, finding the motion judge erred in her legal conclusions and that the record did not support summary judgment for either party.

The cross-motion for summary judgment was dismissed, and the matter was ordered to proceed to trial.

The appellants appealed a trial judgment regarding a promissory note, arguing statutory defences under the Bills of Exchange Act for failure to present the note and notify the guarantor of dishonour.

The Court of Appeal dismissed the appeal, finding that the appellants failed to plead these statutory defences at trial and did not seek leave to amend their pleadings upon discovering the relevant evidence.

The court noted that the appellants' prior conduct of making payments on the note could infer a waiver of presentment, and without amended pleadings, the respondent had no need to reopen the case.

The appellant appealed an order staying its action for an accounting against a mortgagee.

The Court of Appeal dismissed the appeal, finding that the motion judge properly exercised her discretion to stay the proceeding as a redundancy, since the appellant's allegations of wilful default could be pursued in the ongoing deficiency action.

In supplementary reasons settling the order of a previous appeal, the Court of Appeal fixed the judgment awarded to the respondent franchisee at $208,632.26 and the appellant franchisor's counterclaim at $94,200, along with respective prejudgment interest.

Because the respondent ultimately recovered less than its trial settlement offer, the court varied the trial costs award from a solicitor and client basis to a party and party basis, reaffirming that distributive costs awards should be avoided.

The appellant appealed convictions and sentences imposed by a Justice of the Peace.

On consent, the Court of Appeal allowed the appeal, set aside the convictions on three counts and ordered them permanently stayed.

The sentences on two other counts were reduced to $3,500 each.

The appellant landlord appealed a trial judgment awarding the respondent tenant damages for rent paid and the return of a mistaken payment.

The tenant had agreed to terminate its commercial lease early but continued paying rent until the termination date.

Before that date, the landlord leased the premises to a new tenant.

The trial judge found this constituted an eviction, entitling the tenant to the return of rent paid for the overlapping period.

The trial judge also ordered the return of a mistaken payment, rejecting the landlord's claim for set-off as the alleged tax liabilities had not crystallized.

The Court of Appeal agreed with the trial judge on both issues and dismissed the appeal.

The appellants appealed from a judgment of the Superior Court of Justice and a subsequent costs order.

The Court of Appeal dismissed the appeal, finding that the motion judge had thoroughly canvassed the appellants' objections to a master's report and made no palpable and overriding error of fact or error of law.

Costs of the appeal were fixed at $25,000.

The moving party brought a motion before the Divisional Court to appeal a Superior Court judge's refusal to grant leave to appeal.

The Divisional Court dismissed the motion, holding that it lacked jurisdiction to hear the appeal.

The court distinguished previous case law where leave was refused by a Divisional Court judge, noting that section 21(5) of the Courts of Justice Act did not apply to a Superior Court judge's refusal.

Costs were awarded to the responding party on a partial indemnity basis.

The respondent, an Ohio corporation, obtained a consent decree and a contempt order against the appellant, an Ontario corporation, in a U.S. District Court for trade-mark infringement.

The respondent sought to enforce these non-monetary foreign orders in Ontario and was granted summary judgment.

On appeal, the Court of Appeal allowed the appeal and dismissed the motion for summary judgment.

The Court held that even if the rules for enforcing foreign non-monetary judgments were relaxed, the foreign orders in this case were too ambiguous in their material terms, particularly regarding their extra-territorial application, to be enforced by Ontario courts.

The franchisor, Print Three, appealed a trial judgment finding it liable for fundamental breach of a franchise agreement and breach of a duty of good faith.

The franchisee, Shelanu, had entered into a subsequent oral agreement regarding royalty rebates, which Print Three later refused to honour.

The Court of Appeal upheld the enforceability of the oral agreement despite an entire agreement clause, finding the parties had amended their written agreement by conduct.

The Court also affirmed that a duty of good faith exists in franchisor-franchisee relationships.

However, the Court found the trial judge erred in concluding that Print Three's establishment of a new franchise concept breached this duty, and further erred in finding a fundamental breach that excused Shelanu from future performance.

The appeal and cross-appeal were allowed, and damages on the franchisor's counterclaim were reassessed.