J. Van Wiechen

This is a costs endorsement following an appeal where the appellants successfully set aside a finding that a revenue misrepresentation claim was encompassed within the original statement of claim, thereby preserving a Limitations Act defence.

Both parties claimed to be the successful party and sought costs of $20,000.

The court found that success was divided, as the appellants did not get the claim dismissed but did preserve a significant defence.

The court awarded the appellants $10,000 for the appeal and $1,500 for costs submissions, and ordered each party to bear their own costs for the motion below.

The plaintiff brought a motion for leave to amend its statement of claim to add allegations of revenue misrepresentation related to a share purchase agreement.

The defendants opposed, arguing the amendments asserted a new cause of action after the expiry of the limitation period and were barred by a survival clause in the agreement.

The court granted the motion, finding that while the original pleading lacked the factual matrix for the new claim, the defendants had elicited the necessary material facts during discovery, meaning it was not a new cause of action.

The court also held that the survival clause did not bar the claim as it only required the claim to arise within two years, not that notice be given.

This endorsement summarizes the conclusions of an initial case conference, directing the parties to prepare a consent order to convert an application into an action.

The order is to outline the filing of pleadings, the use of existing affidavits and cross-examinations in lieu of discoveries, the exchange of affidavits of documents, and a case timetable.

The endorsement also addresses the responding parties' desire to bring a summary judgment motion on a limitation issue, advising them to assess its potential to substantially shorten or simplify a trial versus the risk of unnecessary delay.

The appellant employer appealed a trial judgment awarding the respondent employee $500,000 in damages for non-delivery of shares pursuant to an employment contract.

The appellant argued there was no evidence of the shares' liquidity to support the valuation.

The Court of Appeal dismissed the appeal, noting the liquidity issue was raised for the first time on appeal and the appellant had called no evidence at trial.

The court upheld the trial judge's reliance on the respondent's testimony regarding the company's value and the adverse inference drawn against the appellant for failing to call its president to testify.

In a wrongful dismissal action by a short-service senior construction employee, the court rejected the employer's unpleaded argument that the employment contract was void for alleged misrepresentation of qualifications.

Applying the Bardal factors, and taking into account the employer's bad-faith contractual conduct and pre-employment misrepresentations about corporate value and promised equity, the court fixed reasonable notice at eight months.

The court also found a clear contractual breach where the employer failed to issue the promised 5% shareholding and accepted evidence that the employee had been told those shares were worth $500,000.

Damages of eight months' salary plus $500,000 for the unissued shares were awarded.

The respondents sought an adjournment of an application due to the sudden illness of their counsel.

A law clerk for the respondents emailed the court requesting the adjournment, implying it would be on consent, without copying the applicants' counsel.

In reality, the applicants opposed the adjournment without specific terms, leading to an unexpected contested hearing.

The court expressed strong displeasure at the misleading communication and failure to copy opposing counsel.

The court granted the adjournment but largely denied the applicants' requested terms, as they amounted to interim relief not previously sought.

However, the court awarded $500 in costs to the applicants due to the unnecessary hearing time caused by the respondents' poor communication.