Helmut R. Brodmann

The appellant appealed from a partial summary judgment that limited the respondents' liability to $2 million pursuant to a liability cap in a personal services contract.

The appellant argued the motion judge erred in interpreting the contract by relying on subsequent conduct of the parties and in extending the liability cap to respondents who were not parties to the original contract.

The Court of Appeal upheld the motion judge's interpretation, finding no error in principle and affirming that the contract was extended to apply to the construction phase and that the liability cap was intended to benefit all respondents.

This costs endorsement addresses the quantum of costs for M. Sullivan & Son Limited and Dent Engineering (Michael Dent, Dent Engineering Ltd., and 1009044 Ontario Ltd.) following their successful motions for consequential relief.

The court rejected the plaintiff's argument to cap costs based on settlements with other defendants, emphasizing that these motions involved distinct issues and factual matrices.

Applying Rule 57.01, the court fixed M. Sullivan & Son Limited's costs at $15,000 and Dent Engineering's costs at $6,000, inclusive of disbursements and HST, to be paid by the plaintiff.

Mississippi River Power Corporation (MRPC) sued WSP Canada Inc. and other defendants following the failure of a penstock in a hydroelectric facility.

WSP Canada Inc. (collectively "Walker") moved for partial summary judgment to limit its liability to MRPC to $2,000,000, citing an insurance covenant in their professional services contract.

MRPC argued there were two distinct contracts or that the covenant did not apply to the construction phase.

Other defendants brought responding motions seeking to extend this liability limitation to them.

The court found there was one extended professional services contract, that the insurance covenant applied to limit Walker's professional liability to $2,000,000, and that the benefit of this limitation extended to the other defendants to prevent subverting the risk allocation and avoid injustice.

Partial summary judgment was granted, limiting the liability of Walker and the remaining defendants to MRPC to $2,000,000.

The appellants appealed a contempt of court order finding them in breach of a restoration order issued by Lahaie J. The appellants had been convicted under the Conservation Authorities Act for interfering with and removing material from wetlands.

The restoration order required them to rehabilitate and restore the wetlands to conform with guidelines set by the Mississippi Valley Conservation Authority within six months.

The appellants argued the order was ambiguous and did not clearly specify what they were required to do.

The Court of Appeal upheld the contempt finding, holding that the order was sufficiently clear when read in context with the judge's reasons, and that the appellants deliberately and wilfully disobeyed the order rather than being unable to comply with it.

The applicants, beneficiaries of an estate, brought a motion without notice for payment out of court of funds previously paid by the respondent financial institution by way of interpleader.

The funds were traceable to a former advisor who had misappropriated money from multiple clients.

The court reserved its decision, requiring the applicants to serve the financial institution, obtain its consent, and file evidence confirming that other potential victims of the fraud no longer had an interest in the funds.

The plaintiff brought a motion for summary judgment seeking $102,898.22 for an alleged breach of a lease agreement by the defendant.

The defendant contended that an early termination clause from the original lease was carried forward into a subsequent lease amending/extension agreement.

The court found that the early termination clause was a specific, time-sensitive provision that had expired and was not implicitly incorporated into the new agreement.

Consequently, the plaintiff's motion for summary judgment was granted.

The applicants sought an order requiring the Canada Revenue Agency to return funds seized from a tax debtor and pay them into court pending the outcome of a related proceeding.

The applicants alleged the tax debtor had misappropriated the funds from an estate.

The court dismissed the application, finding that even if it had jurisdiction to make the order, there was no need to do so because the funds were secure in the hands of the Receiver General and did not require preservation by payment into court.

The insured sought summary judgment declaring that an all‑risk property and business interruption insurance policy covered losses arising from the preventive shutdown and repair of a hydroelectric penstock after a similar penstock failed due to defective welding.

The insurer had indemnified losses from the failed penstock but denied coverage for preventive repairs and business interruption relating to the second penstock.

The court held that the policy excluded the cost of rectifying defects in workmanship and that no insured loss had yet occurred because the second penstock had not suffered physical damage.

The court also rejected reliance on statutory mitigation obligations and the doctrine of imminent peril, finding the risk of failure was foreseeable but not inevitable.

The insurer’s cross‑motion for summary judgment was granted and the action dismissed.

The respondent beneficiary brought a motion seeking an order to compel the estate trustees to make an interim distribution of the estate's assets before the passing of accounts.

The estate trustees had refused to make the distribution after the respondent objected to their compensation and threatened litigation over the sale of the deceased's residence.

The court dismissed the motion, finding that the estate trustees had not acted with mala fides and reasonably exercised their discretion to withhold distribution until their accounts were approved by the court.

The defendant moved for summary judgment seeking a declaration that his motor vehicle insurance policy with the third-party insurer was in full force and effect when he struck the plaintiff pedestrian.

The insurer brought a cross-motion for summary judgment, arguing the policy was validly terminated for non-payment of premiums prior to the accident.

The court found that the defendant had implicitly agreed to the premium amount by paying it for three months before defaulting.

The court also accepted the insurer's calculation of the 30-day notice period required by the Statutory Conditions.

The insurer's cross-motion was granted, and the defendant's motion was dismissed.