Barry Weintraub

Following a bifurcated trial where the plaintiffs were awarded damages for the defendants' breach of a commercial lease, the plaintiffs sought costs.

The plaintiffs had made an offer to settle that they beat at trial.

The court applied Rule 49.10 and awarded the plaintiffs partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing total costs at $906,704.33.

Following a trial on damages in a commercial dispute involving mall tenancy losses, the court issued supplementary reasons correcting calculation errors in the damages previously awarded.

The correction increased the total damages to $580,600.63 after identifying an arithmetic mistake relating to losses associated with inducing a replacement anchor tenant.

The parties jointly agreed to prejudgment interest under the Courts of Justice Act at a rate of 2.8%, resulting in prejudgment interest of $352,973.37 to January 15, 2026.

The plaintiffs’ remaining claims for damages were dismissed.

Costs were left to be determined following written submissions.

The plaintiff mall owners sought over $12 million in consequential damages following the defendant anchor tenant's early closure in breach of its lease.

The trial was bifurcated, with liability previously determined in the plaintiffs' favour.

The court assessed various heads of damages, applying the test for remoteness from Hadley v. Baxendale.

The court awarded $570,216.02, finding that certain tenant inducements and lost rent from specific departing tenants were reasonably foreseeable consequences of the sudden breach.

However, the court dismissed the majority of the claims, concluding that mall renovations were planned maintenance, several tenant failures were unrelated to the breach, and the claim for lost prospective tenants was speculative.

The appellant appealed a Director's Order issued by the Ministry of the Environment, Conservation, and Parks regarding a property in Guelph.

At the third Case Management Conference, the Ministry advised that the Order had been fulfilled.

The appellant requested additional time to review newly disclosed documents and determine how to proceed with the appeal.

On consent of the parties, the Tribunal granted the request and ordered the matter held in abeyance until the appellant requests a subsequent conference or until April 22, 2025.

The plaintiffs sought damages and declarations against multiple defendants, including Akzo Nobel N.V. (NV), for environmental contamination at 65 Heward Avenue, Toronto.

NV, a Netherlands corporation, moved under Rule 21.01(3)(a) to dismiss the action against it for lack of jurisdiction, arguing no real and substantial connection to Ontario.

The court found that the plaintiffs failed to establish any presumptive connecting factors (domicile, carrying on business, tort committed, or contract made in Ontario) linking NV to the province.

The court rejected the group enterprise theory and the argument that assuming liabilities or providing indemnities constituted carrying on business in Ontario for jurisdictional purposes.

Consequently, the claim against Akzo Nobel N.V. was stayed/dismissed.

The plaintiffs sought damages and declarations regarding environmental contamination at 65 Heward Avenue.

The defendants moved to strike the plaintiffs' amended statement of claim under Rule 21.01(1)(b) for disclosing no reasonable cause of action, arguing that the plaintiffs knew of the contamination upon purchase, the limitation period had expired, and the claim lacked sufficient particulars for negligence, strict liability, and statutory claims under the Environmental Protection Act.

The court dismissed the motion, finding that the defendants were not barred by delay or pleading over, the plaintiffs' knowledge of contamination was not fatal, the limitation period issue required evidence, and the claim provided sufficient particulars for all causes of action, including novel applications of strict liability.

The appellants appealed the Director's decision to issue a Certificate of Property Use (CPU) for a former industrial property in Guelph, arguing that the CPU failed to adequately address the risk of contaminated groundwater migrating offsite to their adjacent properties.

The Tribunal found that while there was a risk of contaminant migration to one of the adjacent properties (10 Kingsmill), there was no risk of migration to the other (490 York).

The Tribunal held that the CPU's groundwater monitoring program and contingency requirements provided sufficient safeguards to address the potential for adverse effects, and that implementing physical barriers would be premature and potentially harmful given the complex fractured bedrock environment.

The Tribunal ordered minor amendments to the CPU to reclassify two monitoring wells as downgradient and to require the City to provide advance notice of groundwater sampling to the adjacent property owners, but otherwise confirmed the CPU.

Electrolux Home Care Products Canada Inc. brought a motion to be added as a Party to an appeal regarding a Certificate of Property Use issued for a neighbouring property.

Electrolux is a defendant in related civil proceedings concerning historic contamination.

The Director and the City opposed the motion.

The Tribunal found that Electrolux had a genuine interest in the proceeding because the issue of historic contamination was relevant to both the Tribunal appeal and the civil proceedings.

The Tribunal granted Electrolux Party status, limited to providing evidence and submissions on the specific issue of historic contamination, and required it to shelter under the appellants' issue without altering the existing procedural schedule.

The Ontario Land Tribunal issued a procedural order to govern the proceedings leading up to a 9-day video hearing scheduled to commence on April 9, 2024.

The appeal concerns a Director's Order issued under the Environmental Protection Act requiring work to prevent, decrease, or eliminate an adverse effect from a contaminant.

The procedural order sets out deadlines for disclosure, witness lists, witness statements, expert meetings, and the filing of a hearing plan.

At a case management conference regarding an appeal of a Director's Order under the Environmental Protection Act, the Tribunal considered requests for party status from Electrolux Home Care Products Canada Inc., Florence Lane Residents Group Inc., and the City of Guelph.

Finding that all three entities had a genuine and direct interest in the proceeding and would assist the Tribunal, party status was granted to each.

The parties also provided an update on settlement discussions and a subsequent case management conference was scheduled.

The Ontario Land Tribunal held a Case Management Conference regarding an appeal of a Director's Order issued under the Environmental Protection Act.

The Tribunal granted party status to the City of Guelph, the Florence Lane Residents Group, and Electrolux Home Care Products Canada Inc., finding their participation necessary to effectively adjudicate the issues.

The Tribunal also directed the parties to revise two issues on the draft Issues List to ensure they are framed in a neutral context.

A further Case Management Conference and a nine-day merit hearing were scheduled.

The appellants appealed an order striking out their statement of defence and counterclaim after they repeatedly failed to comply with a settlement agreement and a subsequent court order enforcing it.

The Divisional Court dismissed the appeal, finding that the motions judge made no error in principle and properly exercised his discretion under Rule 60.12.

The court held that the process established by the motions judge to determine the remaining damages for breach of settlement within the existing action was fair, efficient, and proportionate.

Vista owned a shopping mall and leased space to Zellers, which operated a retail store.

Zellers notified Vista in February 2004 of its intention to cease operations in May 2004, although the lease did not terminate until April 2005.

Vista sued, claiming Zellers was obliged under "continuous use" clauses in the lease to operate until the lease ended.

The trial judge found that Zellers was entitled to close when it did, interpreting the continuous use obligation as qualified by the hours of operation clause.

The Court of Appeal reversed, holding that the continuous use obligation in sections 8.01 and 8.05 was not overridden by the hours of operation clause in section 8.01.1, and that Zellers breached its obligation by closing prematurely.

The appellants appealed a Director's Order requiring them to develop and implement a remedial action plan to address diesel contamination originating from a concrete batch plant.

The parties reached a settlement agreement requiring the installation of a barrier wall, additional groundwater monitoring, and financial assurance.

The Tribunal reviewed the Minutes of Settlement under Rule 201 of its Rules of Practice, found the agreement consistent with the purpose of the Environmental Protection Act to protect the natural environment, and dismissed the appeals, directing the Director to amend the order accordingly.

The appellant purchased a commercial property that was contaminated by hydrocarbons that had migrated from an adjacent former gas station property.

The respondents moved for summary judgment to dismiss the action as statute-barred under the Limitations Act, 2002, arguing that the appellant knew or ought to have known of the contamination more than two years before commencing the action.

The motion judge granted the motion, finding that the appellant had knowledge of the claim by March 9, 2012, or alternatively by March 30, 2012.

The Court of Appeal allowed the appeal, finding that the motion judge made palpable and overriding errors by equating the appellant's suspicion of contamination with actual knowledge of contamination, and by failing to consider the relevant circumstances of the multi-property transaction and the waiver of conditions.

The appellant municipality appealed a summary judgment decision finding that the respondent, a 25-year employee, was constructively dismissed and entitled to a 26-month notice period.

The appellant solely challenged the motion judge's findings regarding the respondent's efforts to mitigate her damages.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusions that the respondent's treatment was humiliating, that her decision not to apply for a job 50 km away was reasonable, and that her attendance at her brother's murder trial did not impermissibly hinder her job search.

The plaintiff sought summary judgment alleging constructive dismissal after the employer reorganized its transportation department and reassigned her from an operational engineering role to a largely administrative position while maintaining the same salary and title.

The court applied the constructive dismissal framework from Potter v. New Brunswick Legal Aid Services Commission and assessed whether a reasonable person would view the changes as substantially altering essential terms of employment.

It found that the reassignment fundamentally changed the nature and quality of the plaintiff’s duties from technical operational work to administrative functions, effectively eliminating the role she had performed for decades.

The court concluded that the employer’s unilateral change amounted to constructive dismissal.

Applying the Bardal factors, the court awarded 26 months’ reasonable notice and rejected the employer’s argument that the plaintiff failed to mitigate.

The defendants brought a motion for summary judgment dismissing an action alleging environmental contamination of the plaintiff’s property by petroleum hydrocarbons migrating from a neighbouring former gas station site.

The defendants argued the claim was statute‑barred under the Limitations Act because it was commenced more than two years after the claim was discoverable.

The court held that the plaintiff knew or ought reasonably to have known of the material facts supporting a claim by March 2012 through environmental investigations conducted during its due diligence period.

The later Phase II environmental report merely confirmed suspicions already known.

The court also rejected the argument that ongoing contamination constituted continuing damage that created a new limitation period due to lack of evidence of fresh damages.

Summary judgment was granted dismissing the action as out of time.

The appellants appealed a Director's Order requiring them to develop and implement a remedial action plan for diesel contamination on their property.

The parties agreed to an interim stay of the order's implementation requirement pending the appeal's resolution, while altering the compliance dates for the plan's preparation.

The Environmental Review Tribunal found it had jurisdiction to issue the interim order and that no statutory bar under the Environmental Protection Act prevented the stay, as it would not cause danger to health, safety, or the environment.

The Tribunal granted the interim stay on consent.

The appellant employer appealed a summary judgment granting the respondent employee damages for wrongful dismissal.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusions that an alleged amending agreement lacked evidentiary support, that 18 months' notice was appropriate, and that the employee was entitled to damages for her lost bonus.

The court also upheld the motion judge's imposition of a trust regarding mitigation income.