Kevin Lawrence MacDonald

The applicant, Altus Group Limited, sought to set aside an arbitration award in favor of the respondent, 3GS Incorporated, on the grounds of fraud.

Altus alleged that a key witness for 3GS, Lisa Robbins, lied under oath about her criminal convictions during the arbitration.

The court found that Ms. Robbins did indeed give dishonest testimony regarding her criminal record.

However, the court ultimately dismissed the application, concluding that Ms. Robbins' fraudulent evidence was not material to the outcome of the arbitration, as the arbitrator's decision was primarily based on Altus's own knowledge and concealment of its breach, and the credible testimony of 3GS's principals, Alan and Ann Gordon, which was untainted by Ms. Robbins' dishonesty.

Following a judgment in favour of the plaintiff (HC) for breach of contract and dismissal of the defendant's (K) counterclaim, this decision addresses costs.

HC sought substantial indemnity costs, arguing its complete success, K's unmeritorious counterclaim, and K's conduct in protracting proceedings.

K contended the claimed costs were excessive and that HC had only mixed success.

The court found HC entirely successful and entitled to partial indemnity costs up to its first Rule 49 offer, and substantial indemnity thereafter.

The court drew an adverse inference against K for failing to provide its own bill of costs when challenging HC's quantum and made a minor adjustment for limited duplication of counsel.

Following a trial to determine the Gross Rentable Area of a leased premises, both parties claimed success and sought partial indemnity costs.

The court found the defendant to be the successful party, as the determined area was significantly higher than the plaintiff's position, resulting in substantial additional rent over the lease term.

The court awarded the defendant costs but reduced the claimed amount due to excessive photocopying disbursements and time spent on an unsuccessful argument regarding BOMA standards.

A municipal councillor brought a defamation action against the mayor and several councillors arising from a public council statement and related legal opinion criticizing the councillor’s blog posts about senior municipal staff.

The court held the statements were not defamatory and were substantially true in substance, as the plaintiff’s blogs contained disparaging criticism of staff contrary to the municipal code of conduct.

Even if defamatory, the publications were protected by qualified privilege because they were a measured response to the plaintiff’s public letter to the editor and were made to correct the public record.

The court found no evidence of malice and noted the defendants relied in good faith on legal advice before publishing the statement.

The action was dismissed.

In a commercial lease dispute concerning a hospital building developed through a public-private partnership, the court determined the gross rentable area used to calculate annual basic rent.

The lease projected a gross rentable area of 135,000 square feet but failed to properly define that term, and the landlord's architect never issued the certificate contemplated by the lease.

Applying modern contractual interpretation principles and limiting surrounding-circumstances evidence to objective facts known at the time of contracting, the court held that the parties intended gross rentable area to correspond to the architect's gross floor area concept rather than the entire building area urged by the defendant.

The court fixed the gross rentable area at 142,907.5 square feet and left the parties to calculate rent payable from October 1, 2013 onward.

The franchisor defendants brought a motion for summary judgment seeking dismissal of a franchisee action and judgment on a counterclaim following termination of four franchise agreements without notice.

The franchisees alleged breaches including failure to provide notice and violation of the duty of fair dealing under the Arthur Wishart Act.

The court held the terminations were justified due to substantial defaults amounting to acts of bankruptcy and rejected arguments based on estoppel and statutory good faith.

The plaintiffs also failed to produce basic financial documentation capable of proving lost profits, rendering their damages claim unsustainable.

Summary judgment was granted dismissing the action, while the counterclaim was left for trial due to disputed facts.

The applicant brought a motion for directions regarding whether a prior court order required the commencement of a fresh action with new pleadings, productions, and examinations for discovery in a dispute concerning the calculation of gross rentable area under a commercial lease.

The respondent opposed the need for a new action and sought to proceed directly to trial on an expedited basis.

The court found that the dispute centered on expert methodology rather than the parties’ intentions or lease validity, and that the lease contained a mechanism for determining gross rentable area.

The court also noted prejudice to the property owner caused by ongoing litigation preventing the sale of the building.

Directions were issued converting the matter into an action proceeding to expedited trial and treating prior application evidence as partial discovery.

The parties brought cross-appeals from orders of a Master in a long-standing construction dispute over failed heat pumps.

The defendants appealed the Master's refusal to allow them to amend their statement of defence to withdraw an admission that the personal defendants were partners, and the requirement to provide particulars for other amendments.

The plaintiff appealed the Master's order restricting its examination for discovery to a specific personal defendant, and sought leave to appeal the Master's costs award.

The Divisional Court dismissed the defendants' appeal, finding the Master correctly applied the test for withdrawing an admission.

The Court allowed the plaintiff's appeal, holding the Master lacked jurisdiction to restrict discovery without consent, and varied the costs award from $5,500 to $25,000 due to the Master's failure to provide reasons for drastically reducing the costs sought by both parties.

During a civil jury trial, the court addressed a dispute between counsel regarding the form of jury questions on damages.

The plaintiff argued that the jury should only be asked about general, aggravated, and punitive damages, while the defendants submitted that the questions should reflect the damages discussed in the charge, including general, nominal, and contemptuous damages.

The court held that there was no prejudice to the plaintiff in directing the jury to consider the specific types of damages addressed in the charge.

The jury questions would therefore separately reference general, nominal, and contemptuous damages to align with the jury instructions.

During a jury trial in a defamation action arising from statements published by municipal officials, the plaintiff sought a jury instruction permitting an adverse inference from the defendants’ failure to call two municipal officials as witnesses.

The court reviewed the principles governing adverse inference where a party fails to call a witness, including the requirement that the witness be under the exclusive control of the party and that the evidence not be otherwise available.

The court found the witnesses were equally available to both parties and were not under the defendants’ exclusive control.

As a result, the circumstances did not justify the rare step of instructing the jury that an adverse inference could be drawn.

During a defamation trial involving a municipal councillor and the mayor along with other councillors, the plaintiff sought to introduce a report by the municipal Integrity Commissioner into evidence.

The defendants objected to its admissibility.

The court ruled the report inadmissible, finding that it did not meet the necessity and reliability criteria for the principled exception to hearsay.

The court noted that under the Municipal Act, the Integrity Commissioner is not a compellable witness, meaning the defendants would be unable to cross-examine him.

The court concluded that admitting the report would be highly prejudicial and could lead the jury to afford the untested opinion undue weight.

In a defamation action brought by a municipal councillor concerning a statement published by town council and later republished by a newspaper, the plaintiff sought to introduce similar fact evidence relating to a separate defamation action previously commenced and later discontinued by one of the defendants.

The plaintiff argued that the earlier litigation had been characterized as SLAPP litigation and was relevant to establish malice.

The court held that the prior action had minimal probative value in determining whether the impugned statement was defamatory or whether available defences applied.

The court further concluded that admitting the evidence risked sidetracking the jury trial into collateral issues unrelated to the pleadings.

The motion to admit the similar fact evidence was therefore dismissed.

The applicant subtenant sought a permanent or interlocutory injunction to enforce an exclusivity clause in its commercial sublease, which granted it the exclusive right to operate a karaoke club.

The respondent sublandlord had leased another unit to a co-respondent for a restaurant with karaoke.

Finding material facts in dispute, the court ordered the application to proceed to trial.

Applying the RJR-MacDonald test, the court granted an interlocutory injunction restraining the co-respondent from providing karaoke services pending trial, finding a serious issue to be tried, irreparable harm to the applicant's business, and the balance of convenience favouring the applicant.

The applicant landlord sought a determination that the tenant was required to contribute to construction cost overruns under two offers to lease for commercial space in a shopping centre.

The agreements provided that the tenant would pay excess hard construction costs above a specified amount per square foot if such costs were approved in advance by the tenant or incurred under approved contracts.

The court held that the tenant’s prior approval of construction contracts or excess costs was a clear condition precedent to any obligation to pay cost overruns.

Because the landlord failed to obtain such approval before construction was completed, the tenant was not liable for any excess costs.

The court also held, obiter, that if liability had arisen, the cost of constructing the underground garage would have been included as part of the hard construction costs.

The plaintiff, an assistant store manager, was terminated for just cause after failing to prevent a workplace safety violation where a wheelchair-bound employee was lifted to a second floor using an order picker forklift.

The court applied the McKinley contextual approach and found that while the plaintiff's failure to stop the lift was serious misconduct, it did not strike at the heart of the employment relationship to justify summary dismissal.

The court awarded the plaintiff 10 months' salary in lieu of notice, but declined to award aggravated or moral damages.

In a commercial dispute concerning allegedly defective heat pumps installed in condominium projects, the defendants moved to withdraw an admission in their Statement of Defence that certain individual defendants were partners in the corporate defendant.

The court applied the three‑part test for withdrawing admissions, requiring a triable issue, a reasonable explanation for the admission, and absence of non‑compensable prejudice.

The defendants failed to provide credible affidavit evidence explaining the admission and did not satisfy the requirements of the test.

The motion to withdraw the admission was dismissed.

The court permitted certain amendments to the Statement of Defence, required further particulars for others, and imposed a discovery plan after the parties were unable to agree.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Based on the submissions of the parties, the court fixed the total costs at $8,000.

The appellant vendor appealed a trial judgment finding that its failure to construct a cathedral ceiling in a new home was a fundamental breach of the agreement of purchase and sale.

The Court of Appeal upheld the trial judge's conclusion, noting that the cathedral ceiling was a crucial feature of the contract and the vendor's unilateral change provision did not apply to fundamental changes.

The court also rejected the argument that the purchasers affirmed the contract by delaying their rescission, finding that they rescinded within a reasonable time after learning of the change.

The appeal was dismissed and the purchasers were entitled to the return of their deposit.