J. Gardner Hodder

The appellant sought to compel the respondent bank to reinstate a chequing account that had been closed.

The appellant argued that section 627.17(1) of the Bank Act required the bank to maintain the account once opened.

The application judge rejected this argument, holding that section 627.17 pertains only to the opening of accounts, not their closure.

The Court of Appeal affirmed, finding no reviewable error and agreeing that the word "open" means to start something, not to continue it indefinitely.

The appeal was dismissed with costs of $15,000 payable to the respondent.

The applicant, Samer Bishay, sought an order under the Bank Act compelling the Bank of Montreal to reinstate his bank accounts, a trial on damages, and a Norwich Order for disclosure of information leading to the account closure.

The court found that s. 627.17 of the Bank Act only requires banks to open accounts under certain conditions, not to maintain them indefinitely, and that the common law right to terminate banking relationships on reasonable notice was not displaced.

The application was dismissed, including the request for a Norwich Order, as the applicant's claim was found to be speculative.

The appellant software company appealed the dismissal of its claim that the respondent breached a distribution agreement by copying the features and functionality of its software to create a derivative work.

The Court of Appeal upheld the trial judge's factual findings that no copying occurred and that the respondent's use of a marketing presentation was authorized.

The Court also found no error in the trial judge's evidentiary rulings, including the exclusion of an omnibus package of documents under the party admissions exception to the hearsay rule and the exclusion of an expert report that lacked necessity.

The appeal was dismissed.

The appellant appealed a judgment that found his refusal to transfer 33.15 shares in Futecan Canada Inc. to the respondent was oppressive and ordered the share transfer.

The central issue was the agreed-upon number of shares to be transferred.

The Court of Appeal found ample non-hearsay documentary evidence supported the application judge's finding that 33.15 shares were to be transferred, which would give the respondent a controlling interest and made commercial sense.

The appeal was dismissed, affirming the original judgment.

This action concerned a Distribution Agreement between MJL Enterprises Inc. (plaintiff) and SAL Marketing Inc. (defendant) for MJL's software, iSTAR.

The plaintiff sought damages for alleged breach of contract, including failure to market the software, non-payment of invoices for development work, and copying of software features.

The defendant maintained it was a standard distribution agreement, the software was not marketable, invoices were not properly approved per the contract, and no copying occurred.

The court found no breach of the Distribution Agreement by the defendant, that the invoices were not issued in compliance with the contract, and that there was no evidence of software copying, misrepresentation, fraudulent misrepresentation, or breach of confidence.

All claims for damages were dismissed.

The appellant purchased a restaurant from the respondent and subsequently sued for fraudulent misrepresentation regarding the restaurant's revenues.

The trial judge dismissed the action, finding no misrepresentation and stating the appellant should have verified the actual sales receipts provided to her.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge erred by ignoring formal admissions regarding the revenue representations and by improperly relying on the appellant's lack of due diligence as a defence to fraudulent misrepresentation.

The applicants sought to set aside a final arbitration award and obtain leave to appeal it, arguing the arbitrator exceeded jurisdiction by contravening a shareholders' agreement regarding share valuation and by granting relief against non-parties.

The respondent counter-applied to enforce the award.

The court found the arbitrator did not exceed jurisdiction, as the parties had consented to the arbitrator's jurisdiction over oppression, alter-ego, and fraudulent conveyance claims.

The arbitrator's valuation and liability findings, including holding non-parties liable as alter egos, were deemed within the scope of the consent order.

Leave to appeal on pre-judgment interest calculation was denied as a minor issue not meeting the statutory test.

The applicants' application and appeal were dismissed, and the respondent's counter-application to enforce the award was granted.

The defendant, the University of Western Ontario, brought a motion for summary judgment to dismiss the plaintiff's claim.

The plaintiff, a former Ph.D. student, alleged breach of contract and fiduciary duty due to inadequate supervision and misleading information about funding after his thesis supervisor died.

The court granted summary judgment, dismissing the action, on the basis that the plaintiff's complaints were academic issues that should have been resolved through the university's internal processes, subject to judicial review, rather than a civil action.

The court emphasized the university's expertise, the policy of judicial deference to academic decisions, and the more effective remedies available through internal university mechanisms.

The moving parties sought a stay of execution of an order vacating a certificate of pending litigation (CPL) on one property and a restraining order on another property, pending their motion for leave to appeal.

The court applied the three-part test for a stay.

The court found that the moving parties failed to establish a serious question to be tried that would meet the test for leave to appeal, and failed to demonstrate irreparable harm.

The motions for a stay and a restraining order were dismissed.

A dispute arose between a commercial landlord and tenant concerning the tenant’s attempt to exercise a lease renewal option and alleged arrears of additional rent.

The landlord refused renewal and ultimately locked the tenant out, causing a planned sale of the restaurant business to collapse.

The motion judge granted summary judgment for the tenant, awarding damages for loss of the business sale, arbitration and settlement expenses, the security deposit, and punitive damages, and dismissed the landlords’ counterclaim.

The landlords appealed on multiple grounds including refusal of an adjournment, improper notice of renewal, and alleged rent default.

The Court of Appeal rejected each ground and upheld the summary judgment.

The applicants sought to set aside or vary two interlocutory awards made by an arbitrator, arguing that the arbitrator made findings on unpleaded allegations, resulting in a 'trial by ambush.' The underlying arbitration involved a dispute over share ownership and unpaid dividends, where the arbitrator dismissed the applicants' summary judgment motion based on a limitation period defence.

The Superior Court dismissed the application, holding that the court should not interfere with interlocutory arbitral decisions to avoid piecemeal review.

Furthermore, the court found no procedural unfairness, as the issues had been properly pleaded and the applicants had the opportunity to call reply evidence but declined to do so.

The appellants sued the respondent physicians for damages, including the difference between their actual legal fees and the costs awarded in prior proceedings regarding the withdrawal of life support, as well as damages for various torts based on a pre-litigation letter sent by the respondents' counsel.

The motion judge dismissed the action as an abuse of process.

The Court of Appeal upheld the dismissal, finding that the claim for legal fees was barred by issue estoppel and the tort claims were barred by the doctrine of absolute privilege, as the letter was intimately connected to contemplated judicial proceedings.

Following summary judgment determining that a franchisor’s 12‑month termination notice to a long‑time franchisee was inadequate, the court determined the appropriate reasonable notice period and resulting damages.

The court rejected arguments that the notice period should correspond to a proposed franchise renewal term or to employment-law notice ranges exceeding 20 months.

While acknowledging that franchise relationships share characteristics with employment relationships, the court emphasized that franchisees remain independent contractors and must bear business risk.

Considering the length of the relationship, the franchisee’s satisfactory performance, the absence of bad faith, and the independent contractor status, the court held that 18 months’ notice was reasonable.

Damages equal to six additional months of income were awarded.

Following a prior judgment, the parties reached an agreement regarding costs arising from the motion and the action.

The court issued a costs endorsement confirming the parties’ consent.

The plaintiffs, acting personally and as substitute decision maker and litigation guardian for other parties, agreed to pay the defendant physicians a lump sum amount.

The order formalized the agreed costs payment resolving the outstanding costs issue between the parties.

Following the dismissal of motions to set aside service ex juris and to stay or dismiss an action for lack of jurisdiction, the court determined the appropriate costs award.

The successful party sought substantial partial indemnity costs.

The court reduced the claimed costs to reflect time spent on unsuccessful jurisdictional arguments, unnecessary steps, and work unrelated to the motions.

Costs were ultimately fixed at a reduced amount and apportioned severally among the moving defendants, reflecting their differing roles in the litigation, including the raising of a forum non conveniens argument.

The respondent, an assistant manager at Wal-Mart, was constructively dismissed after enduring months of abusive and demeaning treatment from her supervisor.

When she complained to Wal-Mart management, they deemed her complaints unsubstantiated and threatened her with reprisal.

At trial, a jury awarded substantial compensatory, aggravated, and punitive damages against both the supervisor and Wal-Mart.

On appeal, the Court of Appeal upheld the findings of liability and the compensatory and aggravated damages awards, finding that the supervisor intentionally inflicted mental suffering and Wal-Mart breached its duty of good faith and fair dealing.

However, the Court significantly reduced the punitive damages awards against both defendants, concluding that the original amounts were not rationally required to achieve the goals of punishment, denunciation, and deterrence in light of the high compensatory awards.

Foreign defendants moved to set aside service ex juris of a statement of claim and to stay or dismiss an Ontario action alleging fraudulent conveyance of wind turbine business assets.

The plaintiff had previously obtained judgment in Ontario for breach of a letter of intent to market turbines in Canada, and alleged the defendants transferred assets to avoid satisfying that judgment.

The court held that a presumptive connecting factor existed because a contract made and breached in Ontario was connected to the dispute regarding the asset transfer.

The defendants failed to rebut the presumption of jurisdiction and did not demonstrate that another forum, such as California, was clearly more appropriate under forum non conveniens principles.

Service ex juris and substituted service were upheld and the action was permitted to proceed in Ontario.

Following the dismissal of a proposed class proceeding and the granting of summary judgment in favour of the defendant, the court addressed the issue of costs.

The defendant sought partial indemnity costs of over $321,000, while the plaintiffs argued that a substantially lower award was appropriate and invoked s. 31(1) of the Class Proceedings Act, 1992, asserting the action raised a novel legal issue.

The court held that although the case contained some novel aspects, it was primarily a private financial dispute and not a public interest test case warranting a reduction of costs.

Applying the principles from Boucher v. Public Accountants Council for the Province of Ontario and Rule 57.01 of the Rules of Civil Procedure, the court assessed whether the claimed costs were fair and reasonable.

The court concluded that the defendant’s claimed costs exceeded what the unsuccessful plaintiffs could reasonably be expected to pay and fixed costs at $200,000 all inclusive.

The proposed representative plaintiffs sought certification of a class action alleging that fellows at a teaching hospital were contractually entitled to receive fellowship stipends on a tax‑free basis and that the defendant payroll management entity breached the employment contracts by later withholding income tax without grossing up compensation.

The defendant opposed certification and brought a motion for summary judgment dismissing the action.

The court held that although the defendant could be considered an employer within a common‑employer structure, there was no express, implied, or collateral contractual term guaranteeing tax‑free fellowship payments.

Because the alleged promise of tax‑free compensation could not be established and damages claims were untenable, the individual claims failed.

Certification was also denied because the key issues were individualized and the proposed plaintiffs were not adequate representatives.

Following dismissal of a counterclaim alleging wrongful dismissal and breach of contract and seeking $11.8 million in damages, the successful defendant by counterclaim sought substantial indemnity costs exceeding $299,000.

The court considered Rule 57 of the Rules of Civil Procedure and the principles governing cost awards under the Courts of Justice Act, including the effect of an unaccepted Rule 49 settlement offer and allegations of uncooperative litigation conduct.

Although the court accepted that some conduct of opposing counsel created additional expense, it declined to award substantial indemnity costs.

Applying the objective of fairness and reasonableness to the unsuccessful party, the court fixed costs on a partial indemnity basis.