J. Brian Casey

The appellants appealed a trial judgment finding them liable for over $10 million for fraudulent misrepresentation and other torts.

The sole ground of appeal was that the trial judge erred in refusing their request for an adjournment on the eve of trial to retain new counsel, after they had filed notices of intention to act in person.

The Court of Appeal dismissed the appeal, finding that the trial judge properly balanced the competing interests, including the appellants' ability to defend themselves, the prejudice to the respondent, and the public interest in the efficient resolution of trials.

Following a successful appeal based on the respondent's failure to properly serve the originating documents, the parties could not agree on the disposition of costs below.

The Court of Appeal ordered that the costs below, fixed at $100,000, be in the cause of the new application, provided the respondent proceeds with the application within three months.

The appellant, a Kyrgyz company wholly owned by the Kyrgyz Republic, appealed an order declaring that the Republic had an equitable interest in shares held by the appellant and ordering their seizure to satisfy an arbitral award.

The Court of Appeal allowed the appeal, finding that the Republic was not properly served with the initiating documents.

Service on the Republic's embassy in Washington D.C. did not comply with the mandatory and exhaustive service provisions of the State Immunity Act, and the court could not validate service using provincial rules of civil procedure.

Supplementary reasons addressing implementation and costs following an appeal decision regarding a condominium dispute.

The court ordered a trial of an issue to determine the difference in value between a two-storey and three-storey townhouse unit.

The court denied prejudgment interest on the valuation amount, finding the loss crystallized on the date of the appeal decision.

The court also allocated trial and appeal costs among the parties, applying modified Sanderson orders to account for successful and unsuccessful claims against various defendants.

The appellant purchased a condominium townhouse advertised as three storeys, but later discovered the third floor was illegally built into the common element attic space.

She sued the condominium corporation, the property manager, her real estate lawyers, and the vendor.

The Court of Appeal held that the condominium corporation was liable for negligent misstatement for issuing a clean estoppel certificate despite the illegal third floor.

The court upheld the finding of solicitor negligence against the appellant's real estate lawyers for failing to review the vertical survey plans.

Damages were reassessed to compensate the appellant for the lost opportunity of owning a three-storey unit, and punitive damages against the vendor were upheld.

The defendants brought a motion to strike the plaintiffs' statement of claim, which alleged malicious prosecution, negligent investigation, and other torts arising from criminal charges related to a 1992 arson.

The court found the 63-page statement of claim to be prolix, repetitive, argumentative, and replete with evidence, violating the rules of pleading.

The court struck the entire statement of claim but granted the plaintiffs 60 days leave to amend, providing detailed guidance on how to properly plead the causes of action.

The court declined to strike the negligent investigation claims without leave to amend, noting the law in this area is unsettled.

The applicant sought to extend an ex parte Mareva injunction freezing certain shares of a Canadian mining company and associated dividend payments pending enforcement of an international arbitration award.

The award, issued under ICSID Additional Facility Rules, required a foreign state to pay damages for unlawful expropriation.

The moving party argued that shares nominally held by a state‑owned enterprise were beneficially owned by the state and risked being moved beyond the reach of enforcement.

The court found a strong prima facie case that the shares were held for the benefit of the state and that there was a real risk of dissipation or removal of assets.

The Mareva injunction was extended for 90 days and the associated dividend payments ordered held in trust.

The appellant lawyer was sued for defamation by the opposing party in a former matrimonial proceeding.

The lawyer sought to use documents provided to him by his former client to defend the defamation action, and moved for relief from the deemed undertaking rule.

The motion judge dismissed the motion and ordered the lawyer to return the documents to his former client.

The Court of Appeal allowed the appeal, holding that the deemed undertaking rule did not apply because the documents were not obtained under the discovery rules, but rather provided by the client to her own lawyer.

The Court also set aside the order to return the documents, as neither party had requested that relief.

Following the dismissal of a class proceeding, the Attorney General for Canada sought costs against the plaintiffs' solicitors, arguing the plaintiffs had not given informed consent regarding costs exposure.

The motions judge ordered the solicitors to personally indemnify the defendants for costs, finding that uninformed consent equated to a lack of authority to commence the action.

The Court of Appeal allowed the solicitors' appeal, holding that a failure to advise on costs does not invalidate the authority conferred by a client to commence proceedings, and that breach of warranty of authority could not put the defendants in a better position than if the impecunious plaintiffs had provided informed consent.

The appellant, a secured creditor, appealed an order approving a receiver's proposed purchase agreement and technology license agreement for the assets of the respondent companies.

The appellant argued that the proposal was identical to one previously rejected by another judge.

The Court of Appeal dismissed the appeal, finding that the new proposal differed significantly and that the motion judge appropriately applied the Soundair principles in approving the transaction, given the changed circumstances and the need to sell the subsidiary as a going concern.

The appellant appealed a decision regarding whether a letter sent by its counsel constituted a proper tender to stop the running of interest and entitle it to a mortgage discharge.

The Court of Appeal dismissed the appeal, finding the tender was defective because it was not an unconditional offer to pay and the proposed costs were to be held in trust for the appellant rather than the respondent.

The respondent was awarded costs of the appeal on a substantial indemnity basis.

The appellant bank issued an irrevocable and transferable letter of credit.

The letter of credit was transferred to the respondent, who subsequently presented documents for payment.

The appellant refused to pay, citing discrepancies in the documents and a lack of notice regarding the transfer.

The motions judge granted summary judgment in favour of the respondent on liability and ordered the appellant to pay costs, including a Sanderson order for the co-defendant's costs.

The Court of Appeal dismissed the appeal, finding that notice of the transfer was not required under the terms of the credit or the UCP 500, and that the documentary discrepancies were minor and immaterial.

The Court also upheld the costs awards, including the Sanderson order.

The plaintiff sued the defendants for negligence and breach of fiduciary duty regarding the transfer of shares.

The defendants pleaded that the plaintiff failed to mitigate her damages by not seeking a court order to freeze the account.

The plaintiff claimed she relied on her solicitor's advice.

The defendants then brought a third-party claim against the solicitor for contribution and indemnity under the Negligence Act.

The motion judge struck out the third-party claim as disclosing no cause of action.

The Court of Appeal dismissed the appeal, holding that a defendant cannot claim contribution from a plaintiff's solicitor for advice given regarding the mitigation of damages caused by the defendant's own wrong.

The defendants, eight major financial institutions, successfully defended an appeal of a decision denying certification of a class action regarding mortgage contracts.

The defendants sought their costs of the appeal.

The plaintiffs argued that no costs should be awarded, asserting the proceeding was a test case and involved a matter of public interest under section 31(1) of the Class Proceedings Act.

The Divisional Court rejected the plaintiffs' arguments, finding the case was not a test case, did not raise a novel point of law, and was not a matter of public interest, but rather involved individual commercial mortgage contracts.

The court awarded the defendants modified partial indemnity costs fixed at $20,000 per defendant.

The appellants appealed the dismissal of their motions to certify eight separate class proceedings against various financial institutions.

The claims alleged that the respondents incorrectly interpreted mortgage provisions regarding partial prepayment rights and early discharge penalties.

The Divisional Court upheld the motion judge's decision, finding that the pleadings failed to disclose a cause of action as they relied on implied terms not supported by the express language of the mortgages.

The court also agreed that the proposed classes were overly broad, individual issues overwhelmed any common issues, and a class proceeding would be unmanageable and not the preferable procedure.

The appellant, the sole shareholder of a bankrupt hotel, appealed a vesting order and an order approving the sale of the hotel's assets by a court-appointed receiver.

The appellant argued that the receiver failed to disclose the identity of the principals behind the purchaser, which tainted the sale process.

The purchaser brought a motion to quash the appeal, arguing it was moot because the vesting order had already been registered on title under the Land Titles Act.

The Court of Appeal held that once a vesting order is registered on title without a stay, its attributes as a court order are spent and it becomes a conveyance, rendering any appeal from the order moot.

The Court also dismissed the appeal on the merits, finding that the identity of the purchaser's principals was not material to the receiver's sale process.

The appellants, Ontario residents, sold a Florida lot to the respondents.

A dispute arose, and the respondents obtained a default judgment in Florida for US$260,000 after the appellants failed to properly defend the action.

The respondents sought to enforce the judgment in Ontario, which had grown to approximately C$800,000.

The Supreme Court of Canada held that the 'real and substantial connection' test applies to the recognition and enforcement of foreign judgments.

The Court found that the Florida court properly took jurisdiction and that the appellants failed to establish the defences of fraud, natural justice, or public policy.

The appeal was dismissed, and the foreign judgment was enforced.

Following the release of the judgment in two related appeals, the respondents submitted written submissions on costs.

The appellant elected not to file responding submissions.

The Court of Appeal awarded costs to the respondents for the leave application, the application to introduce fresh evidence, and both appeals, fixing the total amount at $50,000 all inclusive.

The appellant bank appealed a trial judgment holding it liable for the unauthorized transfer of $4 million of the respondent's funds.

The appellant argued the trial judge erred by relying on hearsay evidence to reject its defences of acquiescence, ratification, and contributory negligence, by failing to draw an adverse inference, and by not reducing damages.

The Court of Appeal dismissed the appeal, finding the out-of-court statements were properly admitted to show the respondent's state of mind, not for their truth.

The court also upheld the trial judge's findings on the adverse inference and damages.

Dalimpex Ltd. appealed a Divisional Court order staying its civil action against Agros and others pending arbitration in Poland, and a Superior Court judgment provisionally recognizing a Polish arbitral award in favour of Agros.

The Court of Appeal dismissed the first appeal, holding that the identity of the arbitral tribunal and the scope of the arbitration clause were matters best left to the arbitral tribunal where it is arguable that the dispute falls within the agreement.

The Court allowed the second appeal, setting aside the provisional judgment and adjourning the enforcement application pending the final disposition of Dalimpex's appeal of the arbitral award in the Polish courts.