David M. Sundin

The Court of Appeal for Ontario dismissed Enbridge Gas Inc.'s appeal, upholding the Divisional Court's finding that the 1957 franchise agreement between Enbridge and the County of Essex had not expired under the rule against perpetuities.

The court found that the Ontario Energy Board (OEB) erred in law by misapplying the rule against perpetuities, focusing on the duration of the right rather than the vesting of the interest.

The court also held that the Divisional Court was not bound by its earlier decision in Dawn-Euphemia and that the OEB could not impose a new franchise agreement unless the existing one had lapsed or was about to lapse.

The plaintiffs sought specific performance of three Agreements of Purchase and Sale for neighboring homes, alleging the defendant wrongly repudiated the contracts.

The defendant brought a cross-motion for summary judgment, seeking dismissal of the action, discharge of a Certificate of Pending Litigation, and damages.

The court found that the plaintiffs were ready, willing, and able to close the transactions, and that the defendant acted in bad faith by prematurely terminating the agreements, refusing a reasonable extension, and attempting to rely on a "time is of the essence" clause despite its own conduct and a conflicting document registration agreement.

The court granted the plaintiffs' motion for summary judgment, ordering specific performance, and dismissed the defendant's cross-motion.

The appellant appealed an order directing insurance proceeds to be paid out of court to the Estate of Walter Ardis.

The appeal raised two main issues: the application judge's refusal to adjourn the insurance proceeds application to be heard concurrently with a related will validity application, and the determination of insurable interest under the insurance contract.

The Court of Appeal found that the application judge erred by proceeding with the insurance proceeds application while the validity of the underlying will was still in dispute, and by failing to properly consider the Estate of Margaret Ardis's potential interest in the insurance proceeds, particularly concerning the timing of her death relative to the fire and her interest in the house's contents.

The appeal was allowed, the order set aside, and the matter remitted for a joint hearing of both applications.

This decision addresses costs following a successful application where the proceeds of a joint bank account, held by the deceased and his daughter Nicole Rocheleau, were declared an asset of the estate rather than a personal gift to Nicole.

Nicole, an estate trustee, sought her costs from the estate, arguing the litigation arose from the testator's actions.

The court denied Nicole's request for costs from the estate, finding she acted in her self-interest and not for the benefit of the estate.

The court awarded partial indemnity costs to the applicant, payable personally by Nicole, due to Nicole's unreasonable conduct during the litigation and her pursuit of a personal benefit.

The plaintiff brought a motion to prevent the administrative dismissal of his action for delay, establish a timetable, and amend his Statement of Claim to add a claim for shares in lieu of cash payment and to add a new corporate defendant.

The defendants opposed the amendment for shares, arguing it was a new cause of action barred by the Limitations Act, 2002.

The court found that the proposed amendment arose from the same factual situation as the original claim and was therefore not a new cause of action.

The court granted the motion to amend the pleadings, finding no non-compensable prejudice to the defendants.

The applicant sought a determination regarding the proceeds of a joint bank account formerly held by the deceased, Louis Rocheleau, and his daughter, Nicole Rocheleau.

The court found that the presumption of a resulting trust in favour of the estate was not rebutted by Nicole Rocheleau.

She failed to establish that the proceeds or the beneficial right of survivorship were the subject of a valid and completed inter vivos gift, specifically lacking proof of donative intent, acceptance of the gift prior to the donor's death, and the donor's capacity to gift Rachel Rocheleau's interest.

Consequently, the funds in the joint account were deemed an asset of Louis Rocheleau's estate.

The plaintiff brought a motion seeking to add its subcontractor as a defendant to an existing construction dispute after a tunnel collapse caused additional project costs.

The proposed defendant argued the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that the plaintiff knew or ought to have known of a potential negligence claim when the tunnel collapse occurred and was therefore required to act with due diligence within two years of that event.

Discoverability did not extend the limitation period merely because the plaintiff later learned of the defendant’s alleged negligence through a statement of defence.

The motion to add the proposed defendant was denied as statute‑barred.

The appellant, acting as power of attorney for his incapacitated father, appealed an application judge's order that released frozen joint funds to the respondent wife, granted her sole authority over a jointly owned Florida property, awarded her $900 per month in spousal support, and ordered the appellant to personally pay $13,500 in costs.

The Court of Appeal allowed the appeal in part.

The court upheld the release of the joint funds and the personal costs award based on the appellant's litigation conduct.

However, the court ordered the partition and sale of the Florida property nunc pro tunc, finding the appellant had authority to sever the joint tenancy.

The court also reduced the spousal support award to $300 per month, noting the application judge failed to consider the father's capacity to pay.

On a Rule 21 motion, the moving defendant sought to strike a claim arising from an exclusive distribution agreement on the basis of privity of contract after an alleged corporate takeover of the original contracting party.

The responding party also sought leave to amend and to file evidence.

The court held that evidence was inadmissible on the motion, but allowed the proposed amendment and declined to strike the contract-based claims because it was not plain and obvious they had no reasonable prospect of success, including on a novel theory that obligations could flow through a merger, acquisition, or common directing mind.

The tortious interference claim was struck for failure to plead the necessary third-party element.

No costs were awarded given the mixed result.