John Martin Buhlman

The appellant, a property developer, purchased contaminated land in 1990 and commenced an action in January 2004 seeking damages for soil contamination.

The motion judge granted summary judgment, finding the action was statute-barred because the appellant had actual knowledge of the contamination by April 1991, triggering a six-year limitation period that had expired long before the action was commenced.

The appellant appealed, arguing the motion judge erred in principle, made palpable and overriding errors of fact, and failed to consider whether its continuing nuisance claim was statute-barred.

The Court of Appeal dismissed the appeal, holding that the appellant's knowledge of contamination in 1991, albeit to an uncertain extent, was sufficient to trigger the limitation period, and the appellant was not required to know the full extent of the contamination for the period to begin running.

The court considered the allocation and quantum of costs following summary judgment in favour of Canadian Pacific Railway Company (CPR), where the third party, Canada Colors and Chemicals Limited (CCCL), sought costs from the plaintiff, 863880 Ontario Limited.

The court found that exceptional circumstances justified ordering the plaintiff to pay CCCL’s costs, but not the full amount claimed.

The court directed a revised calculation, holding the plaintiff responsible for half of CCCL’s reasonable costs up to the discontinuance of a related third party claim, and all reasonable costs thereafter, subject to a 20% reduction and further specific deductions.

The defendant, Canadian Pacific Railway Company (CPR), brought a motion for summary judgment to dismiss an action by 863880 Ontario Limited (863) as statute-barred.

The action sought damages for TCE contamination on a property purchased by 863 from CPR's predecessors.

CPR argued 863 had sufficient knowledge of the contamination by April 1991, triggering the six-year limitation period. 863 contended it only gained full knowledge in 1998.

The court found that 863 had actual knowledge of the contamination in April 1991, sufficient to trigger the limitation period, as perfect or complete knowledge of the extent or source of damage is not required.

The motion for summary judgment was granted, and 863's action against CPR was dismissed.

The defendant brought a motion to compel the plaintiff to answer two refused questions during discovery and to produce environmental documents (Environmental Site Assessments and Risk Assessment Documents) related to alleged property contamination.

The defendant argued these documents were relevant to the pleaded issue of contamination in the Fresh as Amended Statement of Defence and Counterclaim.

The plaintiff argued the documents were not relevant or that sufficient documents had already been produced.

The court found the requested documents relevant to the issue of contamination and granted the defendant's motion, ordering production of the documents and re-attendance for discovery, with costs awarded to the defendant.

The Harmon Defendants brought a motion to strike the claim against them in the 'Monster Claim'.

The plaintiff, Premium Trust, claimed repayment of a loan but failed to allege any direct contract or duty owed by the Harmon Defendants to Premium Trust.

The court found that the pleading did not sufficiently disclose a cause of action against the Harmon Defendants.

The court struck the relevant paragraph of the claim and granted the plaintiff leave to amend the pleading.

The defendants brought motions to strike three related actions commenced by investors who financed movie productions.

The plaintiffs alleged breach of contract, breach of trust, gross negligence, and negligent misrepresentation against various corporate and individual defendants.

The court struck the breach of contract claims against the Nightingale defendants as there was no privity of contract.

The court also struck certain gross negligence and breach of trust claims where insufficient particulars were pleaded.

However, the court upheld the majority of the claims for breach of trust, gross negligence, and negligent misrepresentation against the individual directors, finding they were adequately pleaded.

The plaintiffs were granted leave to amend their pleadings.

The plaintiff brought a motion to proceed with examinations for discovery in the main action separately from the third party claim.

The main action involved allegations of negligence against environmental consultants for failing to identify contamination prior to the plaintiff's purchase of the property.

One defendant issued a third party claim against previous owners, causing significant delays in scheduling discoveries.

The court granted the motion, finding no overlap in liability issues between the main and third party claims, and held that the plaintiff should not be prejudiced by further delays caused by the third party proceedings.

The defendants moved to discharge a Certificate of Pending Litigation registered by the plaintiff over land in Mississauga, arguing that the plaintiff had no interest in the land, that there was material non‑disclosure in the ex parte application for the CPL, and that the plaintiff delayed unreasonably in seeking the certificate.

The plaintiff asserted that the parties had long contemplated the transfer of land for the construction of a Greek Orthodox church pursuant to agreements dating back to 1980.

The court held that the totality of the evidence demonstrated a reasonable claim to an interest in the land and a triable issue supporting the CPL.

The court further found that the plaintiff had provided sufficient disclosure on the ex parte motion and that the delay in seeking the CPL was reasonably explained.

Balancing the equities and the absence of demonstrated hardship to the defendants, the court concluded that maintaining the CPL was just.

The Minister of Municipal Affairs and Housing brought a motion to quash an application for judicial review commenced by a landowner regarding a Minister's zoning order and a declaration of provincial interest.

The Minister argued the application should be dismissed for delay or prematurity, or alternatively, that portions of the supporting affidavits should be struck.

The Divisional Court dismissed the motion, finding no unexplained delay, concluding it was not a clear case of prematurity to be decided by a single judge, and leaving the evidentiary issues for the panel hearing the merits.

The respondent sought costs of $61,000 following a successful appeal regarding the Ontario Municipal Board's jurisdiction to order a joint board.

The Divisional Court denied the costs request, finding that the respondent caused unnecessary steps and lengthened the proceeding by failing to raise the jurisdictional issue at first instance or during the initial leave to appeal application.

Consequently, the court ordered each party to bear its own costs.

The appellants appealed a decision of the Ontario Municipal Board (OMB) refusing to order a joint board under the Consolidated Hearings Act (CHA) for a proposed golf course and residential development on the Oak Ridges Moraine.

The Divisional Court held that the OMB correctly determined it lacked jurisdiction to order a joint board because the potential hearings under the Ontario Water Resources Act were exempt under the applicable regulations.

Furthermore, the Court found that the OMB had the discretion under s. 24(2) of the CHA to refuse to order a joint board and made no error in exercising that discretion.

The appeal was dismissed.

The applicant sought leave to appeal from a decision of the Ontario Municipal Board (OMB) which concluded that it did not have jurisdiction to order a consolidated hearing under s. 25(2) of the Consolidated Hearings Act.

The court found that the prerequisites for leave were met, as the correctness of the OMB's decision was open to serious debate and the matter was of sufficient importance.

Leave to appeal was granted and the appeals were ordered to be consolidated with an existing appeal.

The appellants sought to enforce an Illinois arbitration award in Ontario against the respondents and to obtain judgment on contractual indemnification obligations.

The application judge enforced the award against the primary debtor but dismissed the application against the other respondents.

On appeal, the Court of Appeal upheld the refusal to enforce the arbitral award against the respondents because they lacked proper notice.

However, the Court allowed the appeal regarding the indemnification claim, setting aside the dismissal and staying the application to refer the indemnification dispute to arbitration pursuant to the parties' agreement.

The defendant reported a spill of cooling tower water to the Ministry of the Environment.

A provincial officer telephoned the defendant to demand a written report about the spill.

The defendant refused, arguing that such a demand must be made in writing by a Director under the Environmental Protection Act.

The defendant was charged and initially convicted of obstructing a provincial officer, but was acquitted on appeal.

The Court of Appeal dismissed the Crown's appeal, holding that a provincial officer does not have the statutory authority to demand additional information by telephone, as such powers are reserved for the Director or must be exercised during a physical inspection.

The Ontario Pork Producers Marketing Board brought a motion for leave to intervene in an appeal concerning the jurisdiction of the Normal Farm Practices Protection Board to regulate farming practices versus municipal zoning bylaws.

The appellant consented to the intervention, while the respondent municipality opposed it.

The Court of Appeal granted the motion, finding that the proposed intervenor could provide a broader public interest perspective on the relative rights of the province and municipalities to control farming operations.

Leave to intervene was granted subject to conditions, including no addition to the record and no duplication of the appellant's arguments.

In an addendum to judgment regarding costs of an appeal, the respondents sought costs totaling $132,145.72.

The appellants opposed, seeking a stay of costs for one insolvent respondent, arguing for the application of the pre-2002 party and party costs regime, and challenging the hourly rates of junior counsel.

The Court of Appeal dismissed the stay request, held that the new costs grid under O. Reg. 284/01 applies retrospectively to services rendered before January 1, 2002, and reduced the hourly rates for certain junior counsel.

Total costs of $122,998.02 were awarded to the respondents on a partial indemnity basis.

The appellants, holders of debentures issued by BCED, appealed a trial judgment finding that a series of corporate reorganizations and asset transfers did not breach a successor obligor clause in the trust indenture.

The clause prohibited BCED from transferring 'all or substantially all' of its assets unless the transferee assumed the debenture debt.

The Court of Appeal dismissed the appeal, holding that the asset transfers did not meet either the quantitative or qualitative threshold to constitute 'all or substantially all' of BCED's assets.

The Court also found that a subsequent guarantee and foreclosure did not constitute a prohibited 'transaction' under the trust indenture, as the indenture expressly permitted BCED to incur and secure senior indebtedness.

The appellants appealed a trial judgment dismissing their claim for losses allegedly sustained due to misrepresentations by a municipal solicitor.

The trial judge found no evidence of misrepresentation, largely based on the credibility of the appellants' principal, and concluded that reliance on the alleged misrepresentation would have been unreasonable.

The Court of Appeal found no error in these findings and dismissed the appeal with costs.