Hayley Peglar

Following a successful appeal that set aside a summary judgment and remitted the matter for trial, the Court of Appeal received written submissions on the costs of the summary judgment motion.

The appellant sought $100,000 on a partial indemnity basis, while the respondent argued for a lower amount due to alleged duplicative steps.

The Court fixed the costs of the summary judgment motion payable to the appellant at $80,000 inclusive of disbursements and HST.

Following the dismissal of the plaintiff's $27 million breach of contract claim on summary judgment, the successful defendant sought costs on a substantial indemnity basis.

The defendant relied on the plaintiff's conduct and a pre-litigation offer to settle for $70,000.

The court found the plaintiff's conduct was not reprehensible and held that Rule 49 cost consequences do not apply to pre-litigation offers.

The court awarded the defendant partial indemnity costs fixed at $180,000, applying a reduction to the defendant's claimed hours and rates for proportionality.

The defendant, Recipe Unlimited Corporation (Cara), brought a motion for summary judgment to dismiss the plaintiff, Jack Ganz Consulting Ltd.'s (JGC), claims for breach of contract and common law reasonable notice.

The court found that JGC had waived the automatic renewal clause of its consulting agreement with Cara, causing the agreement to terminate.

The court also determined that JGC was not a dependent contractor, primarily due to its admission of no financial dependency on Cara and the significant other business interests of its principal, Jack Ganz.

Consequently, JGC's claims for breach of contract and common law reasonable notice were dismissed.

A minor claim regarding a projector and inventory was also dismissed due to lack of evidence.

The plaintiff, Jack Ganz Consulting Ltd. (JGC), brought a motion for an order compelling the defendant, Recipe Unlimited Corporation, to produce additional documents for inspection under Rules 30.06 and 30.08.

The defendant resisted, arguing that the plaintiff was attempting to vary a prior scheduling order, that issue estoppel applied, that sufficient discovery had already occurred, and that the requests were speculative and irrelevant, particularly in the context of a pending summary judgment motion.

The Master found jurisdiction to hear the motion and that issue estoppel did not apply.

However, the Master largely denied the plaintiff's specific requests for further production, concluding that the plaintiff had already received substantial discovery and that many of the requested documents were not relevant or proportionate to the pending summary judgment motion, or that the plaintiff had not provided convincing evidence of their existence or necessity.

Costs were ordered to be "in the cause."

The plaintiff sought leave to amend its statement of claim to plead, in the alternative, breach of the defendant's obligation to give reasonable notice of termination of a consulting agreement, without alleging new facts.

The defendant opposed, arguing it raised a statute-barred new cause of action or lacked particulars.

The court granted leave to amend, finding it was an alternative theory of damages based on existing facts, not a new cause of action, and that sufficient material facts were pleaded.

The plaintiff was ordered to pay $5,000 in costs for the amendment.

The defendant's cross-motion to dismiss the action for non-compliance with a costs order was denied, but its motion to strike certain evidence was granted, with $1,000 costs awarded for that portion.

A commercial landlord sought declarations that a tenant failed to validly exercise an option to extend a lease and was therefore an overholding tenant.

The tenant brought a competing application seeking a declaration that it had validly exercised the option or alternatively that the option remained exercisable.

The court reviewed the law governing the exercise of lease renewal or extension options and the requirement for clear and unequivocal acceptance communicated to the landlord.

Interpreting the lease and rider provisions together, the court found that written notice delivered by courier within the rider’s timeline satisfied the contractual requirements and unambiguously exercised the extension option.

The landlord’s arguments concerning timing, delivery method, authority of the signatory, and use of the term “renewal” instead of “extension” were rejected.