Jim Holloway

The appellant, a housing corporation, appealed a motion judge's decision striking its claims against a manufacturer and seller of a defective toilet flushing system.

The appellant sought damages for excess water costs resulting from system failure.

The Court of Appeal upheld the motion judge's decision, holding that: (1) the manufacturer could not be sued under the Sale of Goods Act as it was not a seller in privity with the purchaser; and (2) the claim in negligence was for pure economic loss, which is not recoverable in tort absent exceptional circumstances not present here.

The court confirmed that such disputes are customarily dealt with by contract, not tort.

The appellant company entered into an agreement with the respondent mining company to introduce business opportunities in exchange for a commission.

The appellant claimed an $8,080,000 commission after the respondent invested in a third-party company.

The motion judge granted summary judgment dismissing the claim, finding that the respondent and the third party had introduced themselves before the appellant's involvement and that the appellant only provided publicly available information.

The Court of Appeal agreed with the motion judge's findings and dismissed the appeal.

The Ottawa Community Housing Corporation (OCHC) sued Sloan Valve Company and Wolseley Canada Inc. for damages related to the alleged failure of the Flushmate System, asserting claims for breach of warranty under the Sale of Goods Act, negligence, and negligent misrepresentation.

The defendants brought a Rule 21 motion to strike OCHC's claims for breach of implied warranty against Sloan and negligence against both defendants, arguing that implied warranties under the Sale of Goods Act require privity of contract and that pure economic loss from non-dangerous, shoddy goods is not recoverable in negligence.

The court granted the defendants' motion, striking both the implied warranty claim against Sloan and the negligence claims against both defendants, affirming that privity is required for implied warranties under the SGA and that economic loss for non-dangerous goods is not recoverable in negligence.

OCHC was granted leave to amend its pleading regarding negligent misrepresentation.

Appeal from a summary judgment decision enforcing settlement agreements between Mars Canada Inc. and the appellants regarding the sale of grey market Mars products in Canada.

The appellants challenged the enforceability of the settlement agreements as being in restraint of trade, the motion judge's jurisdiction to order a reference on damages, and the award of substantial indemnity costs.

The Court of Appeal upheld the motion judge's decision, finding the settlement agreements reasonable under the Tank Lining test, confirming the court's jurisdiction to order a reference under Rule 20.04(3) on summary judgment, and affirming the substantial indemnity costs award based on the appellants' reprehensible conduct.

Following a summary judgment finding the defendants liable for breaching two settlement agreements by importing and selling goods bearing the plaintiff's trademarks, the plaintiff sought costs on a substantial indemnity basis.

The court found that the defendants brazenly breached their agreements and engaged in reprehensible litigation tactics that maximized costs and delay.

The court awarded the plaintiff costs of $225,000 on a substantial indemnity basis.

The defendants sought leave under Rule 39.02 of the Rules of Civil Procedure to file an expert affidavit after conducting cross-examinations in relation to a pending summary judgment motion.

The plaintiff opposed the request, arguing the expert report was inadmissible, failed to meet the Rule 39.02 test, and did not comply with Rule 39.01(7).

The court applied the flexible, contextual approach articulated in First Capital Realty Inc. v. Centrecorp Management Services Ltd. and found the proposed evidence relevant, responsive to matters raised during cross-examination, and supported by a reasonable explanation for the delay.

The court also concluded the plaintiff would suffer no non‑compensable prejudice because the summary judgment hearing had not yet been scheduled and the plaintiff could respond and cross‑examine the expert.

Leave was therefore granted to file the affidavit and expert report, subject to confidentiality and further scheduling directions.