John W. McDonald

The appellant, a distributor of the respondent's products, appealed a summary judgment that dismissed its action and granted judgment on the respondent's counterclaim for approximately $430,000 in unpaid product purchases.

The motion judge found that the respondent properly terminated the distribution agreement based on the appellant's breach, including failure to honour customer orders and circulation of disparaging letters about the respondent.

The Court of Appeal upheld the summary judgment, finding no genuine issue for trial and rejecting the appellant's allegations of misuse of confidential information and interference with contractual relations.

The defendant, having been successful in the proceeding, sought costs on a partial indemnity basis in the amount of $91,766.46.

The plaintiff submitted that $60,000 was a reasonable amount but provided no meaningful explanation or costs outline to support this figure.

The court considered the factors under Rule 57.01, the complexity of the $50 million claim, and the principles of proportionality and reasonable expectations.

Finding no basis to deviate from the defendant's requested amount, the court ordered the plaintiff to pay costs of $91,766.46.

On a summary judgment motion arising from the termination of a non-exclusive distribution agreement, the court held there was no genuine issue requiring a trial on the distributor's claims for wrongful termination, misappropriation of confidential information, solicitation, breach of good faith, and interference with contractual relations.

The court found that the contract expressly permitted termination without cause on 60 days' notice, that the moving party did not breach the duty of honest contractual performance under Bhasin, and that the responding party's evidence of bad faith and confidential information misuse was inadmissible, speculative, or insufficiently particularized.

The court also held that the responding party anticipatorily breached the agreement by stating it would not pay outstanding invoices, which independently justified termination for cause.

Summary judgment was granted dismissing the action and allowing the counterclaim for unpaid invoices with contractual pre- and post-judgment interest at 15 percent.

The applicants, a group of Essar Steel Algoma entities under CCAA protection, moved for court approval of a Term Sheet with Cliffs Mining Company for the supply of iron ore pellets.

The motion was opposed by USW Locals and Algoma retirees, who sought disclosure of commercial terms and objected to provisions preventing disclaimer of the agreement and allowing Cliffs to terminate if an Essar Global entity acquired Algoma.

The court approved the Term Sheet, finding it beneficial for Algoma's restructuring by ensuring a stable and technically suitable iron ore supply.

The court dismissed the objections, emphasizing the urgency of approval, the confidentiality of pricing, and that the Term Sheet's provisions did not unlawfully fetter judicial discretion under CCAA section 32 or unduly prejudice stakeholders.

During a negligence trial against their former lawyers, the plaintiffs attempted to lead evidence on claims not explicitly pleaded in their statement of claim, specifically concerning property at the "Holdway mill" and the promptness of pursuing those claims.

The defendants objected on grounds of relevance.

The court ruled that the statement of claim, as pleaded, did not encompass these additional claims and therefore precluded the plaintiffs from exploring these issues without an amendment to their pleadings.

The court emphasized the fundamental principle that a litigant must have notice of the case against them and clarified that raising an issue in a defence does not elevate it to a claim.

The appellant travel agency appealed a summary judgment dismissing its claims for breach of contract, misappropriation of confidential information, and inducing breach of contract against a former employee and her new employer.

The Court of Appeal upheld the motion judge's finding that the restrictive covenant, which prohibited the employee from soliciting 'or accepting business' from the appellant's clients, was an unenforceable non-competition clause due to its broad wording and lack of a temporal limitation.

The court also found no error in the motion judge's conclusion that the appellant failed to prove the misappropriation of confidential information.

The appeal was dismissed.

The defendants were successful on a motion for summary judgment dismissing the plaintiff's action.

The parties could not agree on costs.

The plaintiff argued each party should bear its own costs because the defendants could have brought their motions earlier and the action was novel.

The court rejected these arguments, finding the action lacked merit and was not novel in a way that would displace the usual costs rules.

The court awarded the defendants their costs on a partial indemnity basis, fixing Murphy's costs at $37,760.38 and Goliger's costs at $46,911.91.

The plaintiff travel agency sued a former employee and her new employer for breach of a restrictive covenant, misappropriation of confidential information, and inducing breach of contract.

The defendants brought motions for summary judgment to dismiss the action.

The court found the restrictive covenant was an overly broad and unenforceable non-competition clause, as it lacked temporal limits and restricted accepting business from any of the plaintiff's clients.

The court also dismissed the claims for inducing breach of contract and breach of confidence, finding no enforceable contract existed and the information shared by the employee did not possess the requisite quality of confidence.

The defendants' motions for summary judgment were granted and the action was dismissed.

Following an unsuccessful motion by the plaintiff to compel answers to questions refused at an examination for discovery, the court determined the issue of costs.

The moving party argued that costs should be in the cause, but the court rejected that position.

The responding party had been entirely successful on the motion and was therefore entitled to costs on a partial indemnity scale.

The court found the responding party’s bill of costs reasonable and ordered payment forthwith.

The defendant bank brought a motion for security for costs against a corporate plaintiff claiming over $1.8 million in damages arising from an alleged breach of duty after the bank took possession of the plaintiff’s premises pursuant to a bankruptcy application.

Evidence established that the plaintiff had no significant assets and an unpaid prior judgment owed to the defendant.

The court held that once a prima facie case for security for costs under Rule 56.01(d) was established, the plaintiff bore the onus of proving both impecuniosity and that it could not raise funds from shareholders or associates.

The plaintiff failed to provide sufficient evidence regarding the financial circumstances of its shareholders or its inability to raise funds.

The court ordered the plaintiff to post $10,000 as security for costs, failing which the action would be stayed.

Tobacco producers commenced a proposed class action alleging that federal and provincial governments failed to enforce tobacco taxation and excise legislation, allowing contraband tobacco markets to flourish and causing economic losses to lawful producers.

The plaintiffs advanced claims in misfeasance in public office and negligence, asserting that public officials deliberately failed to enforce statutory regimes to placate certain communities.

The defendants moved under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the amended statement of claim for disclosing no reasonable cause of action.

The court held that the pleading failed to allege the essential elements of misfeasance in public office, including deliberate unlawful conduct and bad faith by specific officials.

It further concluded that the statutory schemes governing tobacco regulation did not create a private law duty of care owed to tobacco producers and that recognizing such a duty would improperly subject government policy decisions to tort liability.

The amended statement of claim was struck and the action dismissed.

The appellant brought a proposed class action alleging oppression.

The motion judge found that the Ontario Business Corporations Act (OBCA) did not apply because the corporation in question, Birch Mountain, was an Alberta corporation and the appellant was not a complainant under the OBCA.

The motion judge also found that Alberta was the convenient forum.

The Court of Appeal agreed, noting that the action concerned an Alberta corporation, Alberta law applied, and the Alberta courts were already supervising the corporation's bankruptcy and asset sale.

The appeal was dismissed.

The appellant bank appealed a trial judgment awarding the respondent damages for losses arising from forged cheques drawn on its account by an employee.

The bank argued that a verification of account clause in the banking agreement provided a complete defence.

The Court of Appeal dismissed the appeal, finding that the clause did not clearly and unambiguously apply to forged cheques, which are wholly inoperative under s. 48(1) of the Bills of Exchange Act.

The respondent's cross-appeal for additional compensatory and punitive damages was also dismissed due to insufficient evidence and lack of basis for punitive damages.

The appellants appealed the dismissal of their motion to add two further plaintiffs to the action.

The Court of Appeal upheld the motion judge's finding that the two-year limitation period had expired and that this was an attempt to add new parties rather than correct a misnomer.

The appeal was dismissed, though the court noted that the validity of an assignment agreement between the appellants and a third party remained undetermined.

In a supplementary endorsement following an oral judgment, the Court of Appeal for Ontario addressed the allocation of proceeds of realization under the respondent bank's debt instruments.

The parties agreed that the proceeds should be allocated first to expenses, second to interest, and third to principal, which the court ordered.

The court declined to consider the balance of the appellants' supplementary submissions as they went beyond the scope of the court's invitation.

KJS took an assignment of National Bank's debt and security and realized on the portions provided by the appellants.

The trial judge awarded judgment to KJS for the shortfall.

On appeal, the Court of Appeal upheld the trial judge's interpretation of the share purchase agreement, finding that the appellants breached their obligations and could not claim the benefit of the KJS security.

However, the Court allowed the appeal in part to vary the damage calculation, finding that KJS was not entitled to mitigate its damages by taking an assignment of the debt instruments.

The cross-appeal was dismissed.

The appellants appealed an order dismissing their motion to add party plaintiffs and granting the respondent's motion for partial summary judgment.

The motion judge dismissed the appellants' motion because they failed to file a confirmation form and did not request leave under rule 48.04(1), without permitting submissions on these issues.

The Court of Appeal allowed the appeal, finding the motion judge's orders must be set aside on grounds of natural justice and fair procedure.

The applicant applied for a liquor licence for additional outdoor capacity of 68 for its premises.

A resident objected to the application, prompting a hearing.

At the hearing, the parties presented Minutes of Settlement wherein the objector withdrew his objection in exchange for conditions being placed on the licence regarding noise control and patio supervision.

The Board approved the application subject to the agreed-upon conditions.

The appellant commenced a second action against the respondents to realize on a judgment for deposit monies obtained in a prior action.

The respondents successfully moved for summary judgment, filing five affidavits while the appellant filed no evidence.

On appeal, the Court of Appeal dismissed the appeal, finding no genuine issue for trial as the appellant failed to put its 'best foot forward' by filing evidence or conducting cross-examinations.

The court also declined to interfere with the motion judge's costs award.

The appellant appealed the dismissal of its action for damages and breach of confidence against the respondent.

The appellant had provided the respondent with confidential discount information belonging to a third-party medical network during a business pitch.

The respondent subsequently contracted directly with the third party, excluding the appellant.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant was not the entity entitled to the confidence and that the respondent had not misused the information, as it was used exactly for its intended purpose of evaluating the third party's services.