Ivan Y. Lavrence

The plaintiff landlord brought a motion under Rule 5.04 to add a newly incorporated company as a defendant, alleging it received assets, business opportunities, and benefits through fraudulent conveyances after the tenant abandoned leased premises.

The proposed defendant argued that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that the presumption of discovery under s. 5(2) was rebutted because the proposed defendant corporation did not exist at the time of the underlying events.

Given uncertainty regarding when transfers occurred and when the plaintiff could reasonably have discovered the claim, the court found a triable issue of discoverability.

Leave was therefore granted to add the corporation as a defendant with permission to plead a limitations defence.

In a certified class action arising from a fire and explosion in an underground electrical vault at a residential complex, the defendant utility appealed a Master’s order compelling answers to refusals given during examinations for discovery.

The appeal concerned whether the defendant was required to disclose details of internal and expert investigations and to answer questions regarding its theory of causation.

The court held that the defendant failed to establish a factual basis for litigation privilege over investigative information and expert findings.

The court further held that under Rule 31.06(3) of the Rules of Civil Procedure, a party must disclose expert findings, opinions, and conclusions at discovery unless it undertakes not to call the expert at trial.

The Master’s order requiring answers to discovery questions and disclosure of investigative information was upheld.

The plaintiff brought a motion under subrule 5.04(2) and rule 26.01 of the Rules of Civil Procedure seeking leave to amend its statement of claim to add a new defendant in a property contamination dispute.

The proposed defendant opposed the amendment on the basis that the applicable limitation period under the Limitations Act, 2002 had expired.

The court held that the moving party failed to provide sufficient evidence to rebut the presumption of discoverability under s. 5(2) of the Act, including evidence of when the claim was discovered or what investigative steps had been taken.

Because the evidentiary record did not establish any doubt about the expiry of the limitation period, the proposed claims were considered clearly statute barred.

The motion to amend was dismissed, though the moving party was permitted to renew the motion with proper evidence within 45 days.

The appellant appealed a trial judgment awarding it $203,000 in damages for breach of contract, negligent misrepresentation, and breach of fiduciary duty arising from mortgage advances.

The appellant sought the full amount of the mortgage advances ($2.7 million).

The respondents cross-appealed, arguing the action should be dismissed due to novation.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge correctly applied a common sense view of causation in determining that the substitution of a new debtor broke the chain of causation, and that the novation argument failed because the appellant's claim was based on the Mortgage Administration Agreement, not the loan itself.

The appellants appealed an application judge's interpretation of a profit-sharing clause in agreements concerning commercial real estate properties.

The application judge had held that 'net profit' included revenue earned and that mortgage and loan interest were 'non-recovered costs'.

The Court of Appeal allowed the appeal in part, finding that the application judge erred by imposing an interpretation of 'net sale proceeds' that was not argued and was inconsistent with the unambiguous language of the clause.

The Court also held that mortgage and loan interest were not 'non-recovered costs' within the meaning of the agreements.

The appellant tenant terminated a commercial lease, arguing the landlord failed to complete the building in accordance with the schedule.

The trial judge found the tenant acted unreasonably and not in good faith by failing to consider other contractual options, such as completing the work itself and deducting the cost from rent.

The Court of Appeal upheld the liability finding but allowed the appeal on damages in part, reducing the damages award by the $50,000 it would have cost to complete the building.

The cross-appeal on damages was dismissed due to the landlord's failure to mitigate.