Hilary Claire Book

The applicant sought partition and sale of a property, asserting 50% beneficial ownership despite the respondent holding sole legal title.

The respondent denied beneficial ownership and raised limitation period defenses.

The court found the applicant to be a 50% beneficial owner based on evidence including a UK consent order from divorce proceedings and the respondent's own acknowledgments.

The court dismissed the limitation period defenses, finding the cause of action accrued when the respondent first refused to cooperate in the sale after a lien was discharged.

The court ordered the property's sale and an accounting of rents, but dismissed the applicant's claim to offset amounts owed under the UK consent order, citing lack of jurisdiction and delay.

The third party, an appraisal company, moved under Rule 21.01(1)(b) to strike a third party claim brought by the defendants for negligent misrepresentation.

The defendants alleged the appraiser negligently undervalued a property, causing a purchaser to back out of a sale.

The court granted the motion to strike, finding it plain and obvious that the claim could not succeed because the appraiser owed no duty of care to the defendants, having prepared the report exclusively for a lender, and because the defendants did not rely on the appraisal.

This is an appeal and cross-appeal arising from a trial judgment concerning oppression and conspiracy claims related to a condominium corporation.

The appellants (original defendants) challenged the trial judge's findings that claims against one defendant were not statute-barred, the award of punitive damages, and substantial indemnity costs.

The respondents (original plaintiffs) cross-appealed the prejudgment interest rate.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's decisions on all contested issues, including the application of limitation periods, the appropriateness of punitive damages for egregious conduct, and the discretion in awarding substantial indemnity costs and prejudgment interest.

Following a trial judgment in favour of the plaintiff, the parties made written submissions on the quantification of prejudgment interest and costs.

The court fixed prejudgment interest at the statutory rate of 1.3 percent.

The court awarded the plaintiff costs on a substantial indemnity basis, finding that the defendants engaged in egregious, scandalous, and outrageous conduct throughout the litigation, including misleading the court and breaching a court order.

The plaintiff's costs were fixed at $568,292.05.

Commercial List application concerning removal of a limited partnership's general partner for alleged breaches of fiduciary duty and breaches of the limited partnership agreement.

The court found the general partner entered into related party agreements without limited partner approval, co-mingled partnership funds, and used partnership assets for personal expenses and its own legal fees.

The court upheld special resolutions removing the general partner and appointing a replacement, emphasizing the fiduciary character of the general partner's role and the limited partners' loss of trust and confidence.

A cross-application for relief from forfeiture was dismissed, and ancillary declaratory and accounting relief was granted.

The applicant sought entitlement to stock options, arguing constructive dismissal from employment after one year when their role transitioned to a consulting position.

The respondent contended that the transition to a consulting role and subsequent departure were by mutual agreement, thus precluding option entitlement.

The court found no constructive dismissal, determining that the change in role was mutually agreed upon and contemplated by the original employment contract.

The applicant's subsequent departure after the consulting term was also deemed voluntary.

Consequently, the application for stock options was dismissed.

An online retailer of prescription eyewear based in British Columbia appealed an application judge's decision that found it was in breach of Ontario's Regulated Health Professions Act by dispensing prescription eyewear to Ontario customers without involving Ontario-licensed health care providers.

The Court of Appeal allowed the appeal, finding that the application judge erred in determining that sufficient constitutional connection existed between the respondent's online sales and Ontario's regulatory scheme.

The court held that while delivery of prescription eyewear falls within the continuum of dispensing activities, the mere delivery of product ordered online and processed in compliance with British Columbia's regulatory regime does not establish sufficient connection to apply Ontario's controlled act provisions to an out-of-province supplier.

The court emphasized that the discrete act of delivery has primarily a commercial aspect rather than a health care one, and that applying Ontario's legislation would effectively grant a monopoly over the importation of prescription eyewear into Ontario.

The defendant Dream Office Real Estate Investment Trust ("Dream REIT") moved to strike the plaintiff Europro (Kitchener) Limited Partnership's claim against it, arguing improper lumping of defendants and failure to disclose reasonable causes of action for breach of contract, negligent/intentional misrepresentation, negligence, or unjust enrichment.

Europro conceded the breach of contract claim but maintained the others.

The court dismissed the motion, finding that the claims for misrepresentation, negligence, and unjust enrichment were sufficiently pleaded, and that grouping the Dream defendants was not problematic in this context.

The defendants, BNT Canada, L.P., BNT Canada GP, Inc., and Bechtel Power Corporation (collectively "Bechtel"), brought a motion to transfer the action from Walkerton (Central West Region) to the Toronto Region under Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs, Bruce Power L.P. and Bruce Power Inc. (collectively "Bruce Power"), opposed the motion.

The court applied a holistic approach to the factors enumerated in Rule 13.1.02(2)(b), finding that the convenience of the parties, witnesses, and the court, along with advantages for securing a just, expeditious, and least expensive determination, and the availability of judges and court facilities, favored Toronto.

The court concluded that Bechtel had met the onus of demonstrating that Toronto was "significantly better" and that the transfer was in the interest of justice.

The motion to transfer the action to Toronto was granted.

A twin-engine aircraft lost power in its left engine during a flight from Ontario to Delaware and crashed in New York State, killing the two pilots and one passenger.

The pilots' estates sued the companies that inspected and maintained the engine and the engine manufacturer.

The manufacturer moved for summary judgment arguing that the United States General Aviation Revitalization Act of 1994 barred the claims because the aircraft was delivered more than 18 years prior to the accident.

The motion judge found that Ontario law applied because the crux of the claims involved negligent misrepresentation in repair instructions received and relied upon in Ontario.

The manufacturer appealed.

The plaintiff brought a motion for an interlocutory injunction to preserve $2 million seized by the RCMP in related criminal proceedings, which had previously been ordered paid into court in the civil proceedings.

The defendants brought a motion to strike the plaintiff's counterclaim under Rule 21.

The RCMP brought a motion to quash a summons directed at an RCMP officer to provide evidence for a pending contempt motion.

The court granted the interlocutory injunction, dismissed the motion to strike the counterclaim, and dismissed the RCMP's motion to quash the summons, providing directions for obtaining the necessary documents.

The defendants Teledyne Continental Motors Inc. and Teledyne Technologies Incorporated (CMI) moved for summary judgment to dismiss claims and cross-claims against them, arguing that a U.S. federal statute, the General Aviation Revitalization Act (GARA), imposed an 18-year limitation period that had expired.

The motion was opposed by other defendants, Aviation Technical Consultants (ATC) and Corporate Aircraft Restorations Inc. (CAR), who had cross-claimed against CMI for negligent misrepresentation.

The court, applying Ontario's choice of law rules, determined that the tort of negligent misrepresentation occurred in Ontario where CMI's allegedly faulty instructions were received and relied upon.

Consequently, U.S. law, including GARA, did not apply to bar the claims, and CMI's motion for summary judgment was dismissed.

The plaintiff, a mortgage lender, suffered a loss when a required postponement of a prior charge was not obtained, leaving it as a third mortgagee rather than a first mortgagee.

The title insurer acknowledged coverage and paid the bulk of the loss after the property was sold under power of sale.

The plaintiff sued to recover approximately $40,000 in disputed property maintenance expenses and legal fees incurred by its independently retained counsel, as well as a determination on the interest calculation.

The court reduced the claimed expenses and legal fees, finding that some costs lacked strict proof, involved personal benefit to the plaintiff's principal, and were unnecessary given the insurer's early concession of coverage.

The court also ruled that interest was to be calculated and compounded semi-annually.

The appellants challenged the refusal to stay an Ontario action arising from contractual arrangements negotiated and signed in Ontario concerning Nigerian oil and gas assets, while parallel proceedings had been commenced in Nigeria.

The Court of Appeal held that comity is not a stand-alone consideration but is embedded in the forum non conveniens analysis, and found no error in the motion judge's conclusion that Ontario had jurisdiction and that Nigeria was not clearly the more appropriate forum.

The court also refused to consider proposed fresh evidence consisting of reasons from the Nigerian court because those reasons were available before the motion below and did not satisfy the Palmer test.

The appeal was dismissed with costs.

The moving party sought enforcement of a settlement agreement requiring the bankruptcy trustee to pay $300,000 toward a previously awarded costs order.

The trustee argued the bankruptcy estate lacked sufficient funds and that payment would prejudice its ability to pay its own fees and ongoing litigation costs.

The court interpreted the settlement memorandum and held that the first $300,000 of the moving party’s costs were expressly not subordinated to the trustee’s fees and expenses.

The trustee’s failure to reserve those funds could not defeat the contractual arrangement.

The court ordered payment of $300,000 in trust to counsel holding a solicitor’s lien, with no costs of the motion.

Following an earlier decision granting relief from forfeiture in a loan dispute, the court addressed competing claims for costs between the parties.

The successful applicant sought partial indemnity costs of the application and requested that the award be set off against the loan repayment amount.

The respondent claimed full indemnity costs pursuant to a contractual debenture provision for enforcement expenses.

The court held that although contractual provisions for costs are generally respected, judicial discretion remains and may be exercised where the successful party has engaged in inequitable conduct.

Finding the respondent’s conduct unreasonable and inequitable, the court awarded the applicant partial indemnity costs and refused to enforce the respondent’s contractual entitlement to costs.

The appellants, an author and her company, appealed a decision granting the respondent television production company a declaration that an option agreement for the television rights to her books remained in effect.

The respondent had mistakenly paid a lower extension fee under the wrong contractual clause.

The application judge interpreted the contract to allow for cumulative extensions and granted the respondent relief from forfeiture for the mistaken payment.

The Court of Appeal dismissed the appeal, finding the application judge's reasons were adequate, his interpretation of the contract was correct, and he made no error in exercising his equitable discretion to grant relief from forfeiture.

Remarkable Energy Inc. pledged its feed-in tariff (FIT) contract with the Ontario Power Authority as security for a loan from Crosscurrent Energy Corp. Crosscurrent foreclosed on the security after Remarkable failed to respond to a notice of foreclosure within 15 days.

Remarkable applied for relief from forfeiture.

Crosscurrent argued Remarkable acted in bad faith by failing to negotiate a final price for the sale of the FIT contract.

The court found no bad faith, noted the demand for payment lacked proper details, and held the breach was not grave compared to the value of the FIT contract.

The court granted Remarkable relief from forfeiture.

The applicant sought declarations that the respondent had no right to terminate a commercial agreement of purchase and sale after the applicant failed to pay a second deposit on time, or alternatively relief from forfeiture.

The court held that the applicant did breach the agreement by not paying the deposit contemporaneously with the respondent taking possession under a related lease, but the breach was not material under the five-factor substantial failure of performance analysis.

The respondent's purported termination was therefore itself a breach.

However, the court refused to grant specific performance because the land was held only for investment and had already been flipped for a projected profit, making damages an adequate remedy, and also declined relief from forfeiture.

Costs were awarded to the applicant.

The plaintiff sought costs of $26,318.02 on a partial indemnity basis after successfully defeating the defendants' motion to stay the action on jurisdictional grounds.

The defendants did not dispute entitlement but argued the quantum was excessive, suggesting a range of $10,000 to $14,000.

The court found the time expended by the plaintiff was excessive for a partial indemnity award and fixed costs at $21,000 all inclusive.