Arthur M. Barat

The appellant purchased a new condominium townhouse and subsequently discovered serious water leaks and mold.

She sued the developer, municipality, and various engineers involved in the project for negligence and breach of contract.

The motion judge granted summary judgment dismissing the action against three sets of engineers, finding they owed no duty of care to the appellant under the Anns/Cooper test and that the Professional Engineers Act does not create a private law duty of care.

The Court of Appeal upheld the dismissal, noting the engineers had no contractual relationship with the appellant, their design was not shown to be negligent, and their limited on-site inspection duties did not require physical testing.

The appellant appealed the dismissal of her counterclaim and a subsequent motion to set aside the judgment.

At trial, the appellant asked the trial judge to recuse himself because his former law firm had represented one of the defendants over ten years prior.

The judge refused, noting he had no personal involvement in the file and a significant amount of time had passed.

The appellant and her counsel then left the courtroom, leading the judge to dismiss the counterclaim.

Days later, the judge realized he had a past association with another defendant and informed the parties, but later dismissed a motion to set aside the judgment as he was functus officio.

The Court of Appeal dismissed the appeals, finding no reasonable apprehension of bias and noting that the appellant's abandonment of the trial left the judge with no other option but to dismiss the counterclaim.

The appellants appealed a trial judgment finding they breached fiduciary duties owed to the respondents regarding the financing of a joint venture to construct an apartment building.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellants violated their duty of full disclosure, were in a serious conflict of interest, and made secret profits on a mortgage they set up.

The court also upheld the trial judge's calculation of the amounts owing between the parties.

The appellant appealed a trial judgment finding it breached a contract by failing to award a roofing subcontract to the respondent, who was the lowest bidder.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's conclusion that the bidding process created a binding contract.

The court also upheld the damages award and rejected the argument that the respondent failed to mitigate its loss.

The appellants appealed a summary judgment dismissing their action against the respondents for breach of fiduciary duty related to mortgage transactions.

The Court of Appeal dismissed the appeal, finding that the appellants failed to present material facts showing a breach of duty or causation of damages.

The Court noted the appellants defaulted on three mortgages due to lack of financial means, and there were no genuine credibility issues requiring a trial.

The appeal was dismissed with costs awarded to the respondents.

The appellant appealed a trial judgment finding it owed the respondent $22,987.50 based on unpaid invoices.

The appellant conceded the amount was owed and did not appeal the dismissal of its counterclaim.

The Court of Appeal held that while there was uncontradicted evidence a certified cheque was tendered, this did not undermine the conclusion that the full amount was owing based on the invoices.

The appeal was dismissed with costs.

The appellant employer appealed a judgment awarding the respondent employee damages for wrongful dismissal and slander.

The Court of Appeal held that the trial judge's factual findings, including that the dismissal allegations were not sincere and were motivated by a desire to remove long-serving employees, were open on the evidence and answered the employer's arguments.

The court also upheld the defamation finding, concluding that any qualified privilege was defeated by the equivalent of a finding of malice.

The respondent's cross-appeal for increased slander damages, punitive and aggravated damages, and damages for intentional infliction of mental distress was dismissed.

Commercial appeal arising from a manufacturing contract dispute over delayed and deficient mold production for an automotive supply program.

The appellant argued that the respondent's transfer of one mold to another subcontractor constituted accord and satisfaction and challenged the reasonableness of the respondent's mitigation costs.

The court rejected those arguments, holding that there was no agreement discharging the appellant's original obligations and that subcontracting completion was a necessary mitigation step in light of the delivery pressures imposed by the end customer.

The appeal was allowed only in part to correct the accounting by crediting the appellant with the unpaid final one-third contract amount for the transferred mold.

The respondent remained substantially successful and was awarded three-quarters of its appeal costs.