Gerard Chouest

The appellant trustee in bankruptcy appealed the dismissal of its motions for summary judgment and to strike portions of the respondent's claim.

The respondent, an interim receiver, sued the appellant for breach of fiduciary duty.

The appellant argued the claim was statute-barred and an abuse of process.

The Court of Appeal upheld the motion judge's finding that the limitation period did not begin until the respondent received withheld reports containing material facts, and found no error in the dismissal of the abuse of process motion.

The appeal was dismissed.

Following reasons on the underlying application, the court determined the appropriate costs award.

Applying s. 131(1) of the Courts of Justice Act and the discretionary factors in Rule 57 of the Rules of Civil Procedure, the court emphasized the result of the proceeding, the reasonableness of the steps taken, and proportionality.

Although the respondent argued that the applicants’ legal fees were high relative to his own expenses, the court found the applicants’ partial indemnity bill of costs and disbursements generally reasonable.

Exercising its discretion, the court fixed partial indemnity legal fees at $65,000 plus HST and disbursements.

The respondent was ordered to pay total costs of $84,092.17.

A municipality sought an order requiring demolition of a waterfront structure constructed on Lake Rosseau, asserting that the respondent had built a boathouse with living accommodations in violation of zoning and planning by-laws.

The respondent argued the structure was a water aerodrome registered with Transport Canada and therefore immune from municipal regulation under the doctrine of interjurisdictional immunity.

The court examined the chronology of events, the respondent’s intentions, and the actual use and design of the structure.

It concluded the aerodrome registration was an attempt to circumvent municipal zoning restrictions and that the structure functioned as a boathouse rather than an aeronautical facility.

The court held that municipal planning and zoning laws applied and ordered demolition of the structure.

In a Commercial List case conference concerning potential refusals motions, the court addressed whether interlocutory motions to compel answers to refused discovery questions should be scheduled.

The case management judge emphasized the court’s inherent jurisdiction and the proportionality principles in the Rules of Civil Procedure to control litigation and allocate scarce judicial resources.

The court held that a Commercial List case management judge may decline to schedule refusals motions and instead direct that, if a refusal later proves improper at trial, an adverse inference may be drawn against the refusing party.

Such directions may bind the parties at trial unless the trial judge determines otherwise to prevent injustice.

In a complex commercial fraud and negligence action involving multiple defendants, the court issued a case conference memorandum addressing the status of discovery, mediation, expert reports, and pre‑trial procedure.

The court directed timelines for completion of undertakings and remaining examinations for discovery.

It encouraged the parties to consider avoiding refusals motions due to limited judicial resources and proposed an alternative approach allowing trial judges to address refused questions if necessary.

The parties were instructed to advise the court whether they would forego refusals motions or proceed with them.

The court also directed the parties to contact a judge to schedule a lengthy trial and to return for a further case conference if mediation failed.

In a Commercial List case conference, the court addressed procedural issues arising during case management of complex banking litigation.

A related action commenced by another party against the plaintiff bank had not been disclosed at an earlier case conference, prompting the court to require an explanation and direct counsel to attend a further appointment to address potential motions and case coordination.

The court also addressed discovery disputes, including requests to examine additional representatives and disagreements about whether discovery rights had been exhausted.

Timetables were set for written motion materials regarding discovery disputes, interrogatories, expert reports, and a forensic accounting report.

The court emphasized the importance of transparency in case management and minimizing interlocutory motions in complex litigation.

The defendants brought motions for summary judgment to dismiss the plaintiff's putative class action regarding a leveraged charitable donation program, arguing the claim was statute-barred.

The plaintiff alleged he relied on the defendants' tax opinions to participate in the program, which the CRA later disallowed.

The court dismissed the motions, finding a genuine issue for trial regarding when the plaintiff discovered his claim, particularly given the ongoing solicitor-client relationship with the defendant law firm that was representing him against the CRA while potentially in a conflict of interest.

The respondents issued a notice of action against the appellant within the two-year limitation period under the Warsaw Convention but failed to serve it within the six-month period under the Rules of Civil Procedure.

The master granted an extension of time for service, which was affirmed by the Divisional Court.

The appellant appealed, arguing the claim was extinguished under Article 29 of the Convention.

The Court of Appeal dismissed the appeal, holding that once a claim is issued within the two-year period, the Convention is satisfied and subsequent procedural requirements, including time for service, are governed by the Ontario Rules.

The plaintiffs commenced an action for damages arising from destroyed cargo within the two-year limitation period under the Warsaw Convention, but failed to serve the statement of claim on the defendant airline within the time required by the Rules of Civil Procedure.

The defendant appealed a master's order extending the time for service, arguing that the action was not 'brought' within the meaning of Article 29 of the Convention because it was not served within two years.

The Divisional Court dismissed the appeal, holding that 'brought' means initiating the legal proceeding, not initiating and serving it, and that Ontario procedural rules govern the extension of time for service.

The appellant air carrier appealed a trial judgment awarding the respondent damages for spoiled vaccine cargo.

The vaccine was destroyed after the carrier failed to refrigerate it during a delay in transit, despite clear instructions.

The Court of Appeal upheld the trial judge's finding that the carrier's failure to explain the lack of refrigeration, combined with the clear instructions and availability of coolers, supported an adverse inference of recklessness and knowledge of probable damage.

Consequently, the carrier was not entitled to limit its liability under the Warsaw Convention.

The applicant airline sought judicial review of an interlocutory order from the Small Claims Court, which had dismissed its motion to dismiss the respondent's lost baggage claim based on the two-year limitation period in the Warsaw Convention.

The Divisional Court dismissed the application for judicial review, noting that the relief under the Judicial Review Procedure Act is discretionary and the applicant failed to show why the matter should not proceed to trial.

The appellant airline appealed an order arising from a cargo damage dispute and argued the respondent had failed to establish a prima facie case of actual knowledge that damage would probably result from re-routing the cargo.

The Court of Appeal accepted the legal premise of that submission but held the evidentiary record supported the motion judge's conclusion that such a prima facie case had been established.

The court further held that an adverse inference could properly be drawn from the appellant's failure to call witnesses with personal knowledge, and that the appellant's limited evidence did not raise a genuine issue for trial.

The appeal was dismissed with costs.