Ian MacLeod

This appeal concerns a commercial dispute between The North West Company LP (NWC) and Classic Furs Company Ltd. (CF) over the supply of coyote furs for use in Canada Goose parkas.

The trial judge found a contract existed and that NWC breached it in several respects, but also found in NWC’s favour on unpaid invoices.

Both parties appealed aspects of the damages assessment and liability findings.

The Court of Appeal allowed CF’s appeal in part, finding that the trial judge erred in concluding that certain furs were delivered, and recalculated damages accordingly, including an award of punitive damages against NWC.

This case involved a dispute over a verbal contract for the supply of coyote furs between a fur marketing company and a fur manufacturing company.

The marketing company sued for unpaid invoices, and the manufacturing company counterclaimed for breach of contract, misrepresentation, fraud, deceit, and conspiracy.

The court found a binding oral contract for a specific quantity of furs at a fixed price.

The marketing company breached the contract by failing to deliver the agreed quantity and by unilaterally increasing the price.

The court adjusted the marketing company's claim for unpaid invoices, granted the manufacturing company a refund for poor quality furs on one invoice, and relieved it from paying two other disputed invoices.

Claims for negligent misrepresentation, fraud, deceit, and conspiracy were dismissed due to insufficient evidence.

Minimal damages were awarded to the manufacturing company for the breach of contract due to lack of reliable quantification and mitigation evidence.

A third-party claim against an individual was also dismissed.

The plaintiff sued her gynecologist for medical malpractice after suffering a ureteric injury during a laparoscopic hysterectomy.

The plaintiff alleged the defendant was negligent in failing to detect the injury during surgery and in failing to consider the possibility of a ureteric injury and consult a urologist when the plaintiff presented with post-operative complications.

The court found no breach of the standard of care during the surgery, as the injury was likely a thermal ischemic injury that was not visually observable.

While the court found the defendant breached the standard of care by failing to consider a ureteric injury and consult a urologist post-operatively, the action was dismissed because the plaintiff failed to prove causation.

The court concluded that earlier urological intervention would not have altered the plaintiff's medical outcome or prevented the need for subsequent repair surgery.

The plaintiffs sought leave to amend their Statement of Claim, approximately 15 years after its issuance, to include particulars from expert reports regarding the defendant Ontario's alleged negligence in placing predatory inmates with the plaintiff Paul Bruno and failing to remove them.

Ontario opposed, arguing the amendments constituted a new, statute-barred cause of action.

The court, applying Rule 26.01 of the Rules of Civil Procedure and a "factually oriented" approach to "cause of action," found that the proposed amendments clarified existing claims and did not introduce new material facts or a new cause of action.

The court noted that the issues had been engaged during discovery and expert exchanges, thus causing no non-compensable prejudice to Ontario.

The motion to amend was granted.

The Court of Appeal allowed Her Majesty the Queen's appeal, remitting the case for a new trial due to insufficient reasons from the lower court.

In this costs endorsement, the Crown sought $25,000 in appeal costs, while the respondents requested no costs.

The court awarded no costs for the appeal, citing the regrettable outcome of a new trial and the respondent's limited resources compared to the state.

The costs of the first trial were remitted to the judge hearing the new trial.

This is an appeal from a Master's decision regarding an undertakings and refusals motion.

The appellant, Classic Furs Company Ltd., sought to compel The Northwest Company LP and its employee Jason White to answer certain refused questions and provide further documentation related to shipping, customs, and supplier invoices for coyote furs, as well as accounting treatment of invoices.

The Master had largely ruled in favour of the respondents.

The Superior Court dismissed the appeal, upholding the Master's discretionary decisions on sufficiency of production and findings of irrelevance for the requested documents and questions, applying the palpable and overriding error standard for discretionary matters and correctness for relevance.

This ruling addresses the issue of costs following a nine-day trial where Her Majesty the Queen in Right of Ontario was found liable to the plaintiffs, with Paul Bruno found 15% contributorily negligent.

The plaintiffs sought $407,074.81 in costs and disbursements, while the defendant proposed $166,365.99.

The court determined partial indemnity rates for counsel, made specific reductions for time spent on claims against dismissed defendants, resolved prior interlocutory motions, and travel time.

The court fixed fees at $210,900.00 plus HST, and disbursements at $105,000.00, for a total award of $343,317.00.

The court declined to reduce costs due to contributory negligence, finding the plaintiff's contribution minimal and not significantly increasing litigation costs or affecting settlement chances.

The College of Physicians and Surgeons initiated an investigation into a psychiatrist, SJO, concerning boundary violations and the receipt of confidential information from a patient (Patient A), who was a former College employee.

SJO resisted producing Patient A's medical records, arguing patient-psychiatrist privilege and a conflict of interest for the College due to parallel investigations.

The court dismissed SJO's application for an injunction, holding that the College's statutory investigatory powers under the Regulated Health Professions Act and Health Professions Procedural Code override common law claims of privilege and patient confidentiality in this regulatory context.

The court ordered SJO to produce the patient's medical records and communications to an external investigator, with strict confidentiality protocols to limit College staff access.

In a professional negligence class action regarding tax opinions provided for a timeshare donation program, the plaintiff brought a refusals motion seeking production of internal law firm memoranda.

The defendant law firm claimed quality assurance privilege and solicitor-client privilege over communications with its Ethics and Standards Committee.

The court held that a law firm can assert quality assurance privilege on a case-by-case basis using the Wigmore criteria.

After inspecting the documents, the court found they were privileged but ultimately irrelevant, and dismissed the refusals motion.

The defendant law firm in a certified class action brought a motion to compel the representative plaintiff to answer questions refused during his examination for discovery.

The plaintiff argued the questions related only to individual issues, not common issues.

The court granted the motion, holding that the representative plaintiff is subject to the same discovery obligations as any plaintiff in a normal proceeding and must answer questions relevant to his own individual issues, even if he can refuse questions relevant only to other class members' discrete individual issues.

The defendant, Dr. Nicholas Peter Plaskos, moved for summary judgment to dismiss a medical malpractice action, arguing the claim was statute-barred under the Limitations Act, 2002.

The plaintiffs, Ms. Lewis and her sons, alleged delayed diagnosis due to a failure to order an MRI.

The court found that the plaintiffs' counsel did not exercise objective reasonable diligence in reviewing hospital records, leading to a delayed discovery of Dr. Plaskos's potential involvement.

Consequently, the claim against Dr. Plaskos was deemed statute-barred and dismissed.

A case conference endorsement in a commercial dispute over a $10 million commission.

The plaintiff sought to proceed to mediation, which the defendants opposed.

The court declined to order mediation for unwilling commercial parties, noting it would waste time and money.

The court issued general case management directions and specific deadlines for the examination for discovery of a third party and for the defendants to answer overdue undertakings.

The Crown sought summary judgment to dismiss two actions brought by the plaintiffs, Paul Alexander Cooper and Candice Hopkins, as statute-barred under the Proceedings Against the Crown Act and the Limitations Act, 2002.

One action had been administratively dismissed, which the plaintiffs sought to set aside.

The court set aside the administrative dismissal to deal with both actions concurrently.

The plaintiffs argued that Mr. Cooper's alleged incapacity suspended the limitation period.

The court rejected the incapacity argument, finding the evidence from a chiropractor insufficient and unqualified.

Both actions were ultimately dismissed as statute-barred due to failure to provide proper notice to the Crown and expiry of the basic limitation period.

The plaintiff brought a motion for leave under Rule 48.04(1) to bring a subsequent motion to strike a pleading in the defendants' Fresh as Amended Statement of Defence.

The plaintiff argued leave was not required because the action had been struck from the trial list.

The court held that leave was still required and denied the motion, finding no significant or unexpected change in circumstances to justify the delay of over three and a half years since the impugned pleading was delivered.

The defendants sought costs following their substantially successful motion to compel the production of documents over which the plaintiff claimed privilege.

The plaintiff argued that costs should be in the cause or that no costs should be awarded due to divided success.

The court found that the defendants were overwhelmingly successful based on the number of documents ordered produced and the issues resolved.

Applying the factors under Rule 57.01, the court fixed the defendants' costs at $30,000 on a partial indemnity scale, payable within 30 days.

The defendants brought a motion to compel production of documents from the file of the plaintiff's subrogating insurer and to examine a representative of the insurer.

The plaintiff claimed solicitor-client, litigation, and settlement privilege over the documents.

The court reviewed the documents and ordered production of those where the dominant purpose was claims assessment rather than litigation defence, and those where the settlement privilege exception applied.

The court also ordered the examination of the insurer's representative, finding the action was brought for the insurer's immediate benefit.

The applicant, Best Theratronics Limited, sought leave to appeal to the Divisional Court from an interlocutory order denying an injunction that would compel the respondent, Canadian Nuclear Laboratories Limited (CNL), to continue supplying irradiated cobalt.

The motion judge had applied the three-part test for injunctions, finding a serious issue to be tried but concluding that irreparable harm was not substantiated and the balance of convenience favoured CNL due to the applicant's substantial payment arrears.

The court, applying Rule 62.02(4) of the Rules of Civil Procedure, found no conflicting decisions on the issues pertaining to injunctions in supply agreements and no good reason to doubt the correctness of the motion judge's discretionary order.

The court also noted the applicant's failure to expedite the pending arbitration.

Consequently, the motion for leave to appeal was dismissed.

The defendants successfully defeated the plaintiff's motion for an injunction regarding the processing and delivery of radioactive Cobalt-60.

The defendants sought costs of $69,000 on a partial indemnity basis, while the plaintiff argued for $25,000 or deferral to arbitration.

The court considered the complexity of the technical and legal issues, the high value of the goods involved, and the urgency of the motion.

The court fixed costs payable by the plaintiff to the defendants at $45,000 for fees and $6,000 for disbursements on a partial indemnity scale.

The plaintiff sought an interlocutory injunction preventing the defendants from terminating a cobalt irradiation services agreement and requiring continued supply of irradiated Cobalt‑60 pending arbitration.

The defendants terminated the agreement after the plaintiff failed to pay approximately $4 million in overdue invoices despite a contractual requirement that invoices be paid within 30 days.

Applying the RJR‑MacDonald test, the court held that although a limited serious issue existed regarding whether providing only 30 days’ notice to cure default complied with the duty of good faith, the plaintiff failed to demonstrate irreparable harm and the balance of convenience strongly favoured the defendants.

The court found that cancer treatment supply would not be disrupted because the product could be sourced elsewhere and existing supplies remained usable.

The motion for an injunction was denied.

The plaintiff, a resident of Switzerland with no assets in Ontario, sought court approval for a third-party Litigation Funding Agreement (LFA) to pursue a complex commercial action against the defendants.

The defendants opposed the LFA, arguing it could allow the funder to recover more than 50 percent of the proceeds, and brought a cross-motion for security for costs.

The court found that while third-party funding is not per se objectionable in commercial litigation, the specific terms of this LFA were unfair to the plaintiff and constituted champerty and maintenance.

The motion to approve the LFA was dismissed without prejudice, and the cross-motion for security for costs was deferred.