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Appeal dismissed; trial judge made no palpable and overriding errors in rejecting fiduciary duty and unjust enrichment claims.
The appellants, a fertility doctor and her professional corporation, appealed the dismissal of their action against a former colleague for breach of fiduciary duty and unjust enrichment regarding a government funding application.
The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings.
The court upheld the trial judge's conclusions that no fiduciary duty existed due to the absence of an undertaking to act in the beneficiary's best interests, and that there was a juristic reason for any enrichment because the funding application was made honestly and in accordance with the parties' agreement at the time.
The Court of Appeal held that when restoring an action to the trial list, only delay subsequent to a consent timetable requires explanation.
The appellant appealed a Superior Court decision that set aside a master's order reinstating his action to the trial list.
The action had been dismissed for delay multiple times and reinstated on consent.
The parties agreed to a fourth timetable with a consent order under Rule 48.14(4) requiring the appellant to meet an August 18, 2016 deadline for restoration.
The appellant met the deadline and the master reinstated the action.
The appeal judge allowed the respondents' appeal, but the Court of Appeal reversed, holding that the master correctly focused on delay subsequent to the consent order rather than the entire history of delay.
The court affirmed that the respondents' consent to the order was binding and that there was no relevant delay requiring explanation.
The court allowed the appeal and dismissed the action for delay, finding the Master erred by ignoring the defendants' lack of knowledge regarding key witnesses' deaths when consenting to a timetable.
The appellants (defendants) appealed a Master's order that restored an action to the trial list, arguing that the Master erred by failing to find non-compensable prejudice due to the plaintiff's unexplained delay and the deaths of key defence witnesses.
The court found that the Master made a palpable and overriding error by not considering that the appellants were unaware of the witnesses' deaths when they consented to a new timetable, and by not considering the entire period of delay.
The court concluded that the plaintiff failed to provide an acceptable explanation for the overall delay and that the deaths of the key witnesses constituted non-compensable prejudice.
The appeal was allowed, and the action was dismissed.
