Heidi Polowin

The defendant territorial government brought a motion to dismiss or permanently stay a wrongful dismissal action commenced in Ontario by a former employee who had worked in Nunavut.

The court applied the jurisdiction simpliciter test from Club Resorts Ltd. v. Van Breda to determine whether a real and substantial connection existed between the dispute and Ontario.

The plaintiff relied on factors including recruitment activities, an Ottawa liaison office, the use of an Ontario-based investigator, and the administration of disability benefits in Ontario.

The court held these did not establish that the defendant carried on business in Ontario and therefore no presumptive connecting factor existed.

In any event, the court found that Nunavut would clearly be the more appropriate forum under the doctrine of forum non conveniens.

The defendant appealed a master's order granting a nunc pro tunc declaration deeming a statement of claim issued on the date it was received by the court, despite the registrar refusing issuance due to non-compliance with the rule requiring personal attendance.

The claim and filing fee had been delivered to the court office by courier on the final day of the limitation period, but the registrar returned the documents rather than contacting counsel.

The court held that the master's order corrected a procedural irregularity under the Rules of Civil Procedure rather than extending the limitation period under the Limitations Act, 2002.

The plaintiff had made a good faith effort to commence the action within the limitation period and the defendants suffered no prejudice apart from losing a technical limitation defence.

The appeal was dismissed.

During a criminal trial for trafficking in a substance represented as crack cocaine, the court ruled on two voir dires concerning evidentiary admissibility.

First, the Crown sought to admit police Booking Summary Reports and associated mug shots as business records under s.30(1) of the Canada Evidence Act without calling the identification officer who created them.

The court held that the records were administrative in nature and not caught by the investigative-record exclusion in s.30(10), making the mug shots admissible as reliable business records.

Second, the Crown sought to introduce non‑expert recognition evidence from a police officer who claimed to recognize one accused from surveillance photographs based on a brief prior interaction.

Applying the “prior acquaintance/better position” test from appellate authority, the court concluded the officer lacked sufficient familiarity to provide a reliable basis for recognition and excluded that evidence.

Following dismissal of a civil action arising from a business relationship dispute, the successful defendants sought costs on a substantial indemnity basis, arguing that the plaintiff advanced shifting legal theories and made a late allegation of fraud that was not proven.

The court reviewed the principles governing costs under Rule 57.01 of the Rules of Civil Procedure and the consequences of a rejected Rule 49 offer to settle.

Although unfounded fraud allegations can justify substantial indemnity costs for the entire proceeding, the court found the late fraud allegation was more a misguided attempt than bad faith litigation conduct.

The court therefore declined to award substantial indemnity costs for the entire action but applied the usual Rule 49 consequences.

Costs were fixed as partial indemnity up to the offer date and substantial indemnity thereafter.

The plaintiff alleged that he was induced to leave secure employment by fraudulent misrepresentations that he would become a partner in a siding installation business and share profits.

During trial the theory shifted to deceit and fraudulent misrepresentation, with the plaintiff claiming the defendants planned from the outset to terminate him after he secured new builder clients.

The court held the evidence did not support allegations of fraud, misrepresentation, or a partnership agreement.

The plaintiff was engaged as a commissioned salesperson entitled to a percentage of profits from business he personally generated.

Claims based on unjust enrichment also failed because obtaining new business was precisely the work for which the plaintiff was paid.

Following dismissal of an application seeking removal of a fence demarcating a right of way, the court determined the appropriate costs award.

The successful respondent sought substantial indemnity costs exceeding $30,000, arguing the applicant pursued untenable legal positions and rejected reasonable settlement offers.

The court held that while the respondent was entirely successful and entitled to costs, the case was not sufficiently exceptional to justify substantial indemnity costs.

Applying the principles of reasonableness under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court reduced the claimed amounts and fixed costs at a fair and reasonable level.

The applicant property owner sought a declaration allowing her to remove a fence and erect locked gates on a right of way located on her property, which was used by the respondent embassy to access its rear parking lot.

The court found that the issue of the fence was res judicata due to a 1992 court order mandating its installation.

Furthermore, applying the principles of easement law, the court held that erecting locked gates would substantially interfere with the respondent's unimpeded access to its property, which had been established by historical use and previous agreements.

The application was dismissed.

The defendant, a former investment advisor, brought a motion for summary judgment to dismiss the plaintiff employer's action for breach of contract.

The plaintiff sought to recover amounts paid to settle a client's lawsuit, relying on an indemnity clause in the defendant's employment contract.

The defendant argued the claim was statute-barred under s. 18 of the Limitations Act, 2002, which imposes a two-year limitation period for contribution and indemnity claims running from the date the first alleged wrongdoer is served.

The court dismissed the motion, finding that the plaintiff's action was for breach of contract, not a claim for contribution and indemnity between wrongdoers.

Therefore, s. 18 did not apply, and the limitation period began to run when the settlement was reached, making the action timely.

The plaintiff brought a motion for summary judgment for possession of six properties and judgment on the covenants of five collateral mortgages.

The defendants opposed the motion, arguing that the transaction was part of a joint venture business arrangement with the plaintiff's principal's son, rather than a conventional mortgage, and disputed that the full $1,100,000 was advanced.

The court applied the 'full appreciation test' under Rule 20 and found no genuine issue requiring a trial for the majority of the claims.

The court held that the mortgages were valid and that most of the funds were advanced as claimed, granting summary judgment for possession and the debt, excluding a disputed $33,000 lender's fee and certain legal accounts.