Eric Mayzel

The applicant, Competition Motors Limited (CML), sought to set aside an arbitral award from an Appeal Panel under the National Automobile Dealer Arbitration Program (NADAP) Rules, pursuant to sections 46(1)3 and 6 of the Arbitration Act, 1991.

CML argued the Appeal Panel exceeded its jurisdiction by applying an incorrect standard of review (correctness on facts without deference, akin to a de novo hearing) when reversing an initial arbitral decision that found Toyota Canada Inc. (TCI) unreasonably withheld consent to CML's dealership sale.

The court dismissed CML's application, finding that the issue raised was not one of true jurisdiction under s. 46(1)3, and even if it were, the Appeal Panel acted within its mandate by interpreting and applying the NADAP Rules' unique correctness standard for both law and fact, which allows for a re-evaluation of evidence to reach a "better" conclusion without conducting a full de novo trial.

The court also dismissed the procedural fairness argument as it was contingent on the jurisdictional claim.

The appellants, several Turtle Jack's restaurant franchisees, appealed a motion judge's order that set aside an Associate Judge's decision to add a new defendant (11554891 Canada Inc.) and allow amendments to their statement of claim regarding supplier contributions to an advertising fund.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that adding the new party and allowing the amendments would constitute an abuse of process due to inordinate delay, the dubious nature of the claims, and the fact that the amendments introduced new, statute-barred claims.

The court also upheld the costs award against the appellants.

Following a successful appeal setting aside a Master's order that amended pleadings and added a defendant, the successful appellants sought costs.

The court found the amounts sought excessive because the appellants were unsuccessful on several grounds of appeal and the costs of the underlying motion were fixed at $5,000.

The court awarded the TRG defendants $13,000 and the added defendant $12,000, inclusive of the underlying motion costs.

The defendants appealed a Master's order that granted the plaintiffs leave to amend their statement of claim to add new defendants and new claims regarding supplier contributions to an advertising fund, and ordered related documentary production.

The Superior Court of Justice allowed the appeal in part.

The court found that adding a new corporate defendant on the eve of trial constituted an abuse of process given the extensive delays in the nine-year-old franchise dispute.

The court also held that the Master erred in allowing the amendments regarding supplier contributions, as they constituted a new cause of action that was statute-barred and not legally tenable under the clear terms of the franchise agreements.

The Master's orders adding the new party and allowing the supplier contribution amendments were set aside.

The defendants brought a motion seeking a further and better affidavit of documents from the plaintiff due to alleged overproduction and lack of categorization, and both parties sought security for costs as none were ordinarily resident in Ontario.

The court ordered the plaintiff to categorize its 24,000 documents and denied the plaintiff's request for increased discovery time.

Both 6Points Food Services Ltd. and Carl's Jr. Restaurants LLC were ordered to post $80,000 each in security for costs, with the court finding Carl's Jr. to be an "initiating plaintiff" despite being a defendant by counterclaim, due to its prior commencement of proceedings in California.

Appeal from a Superior Court judgment dismissing an appeal of an arbitrator's preliminary award.

The franchisor appealed the arbitrator's determination that the limitation period for arbitration had not expired.

The dispute arose from a franchisee's notice of rescission of a franchise agreement based on alleged non-disclosure by the franchisor.

The central issue was whether a mediation requirement in the franchise agreement constituted a precondition to arbitration that suspended the running of the two-year limitation period under the Limitations Act, 2002.

The arbitrator severed the requirement that mediation occur in Delaware, finding it contrary to the Arthur Wishart Act, and determined that the limitation period commenced only after mediation was deemed completed.

The Court of Appeal upheld the arbitrator's decision, applying a reasonableness standard of review.

This is a costs judgment following a successful appeal by the respondent.

The respondent sought partial indemnity costs of $28,029.42, while the applicants argued for no costs or a limit of $12,000.

The court awarded the respondent the full amount requested, considering factors under Rule 57.01(1) of the Rules of Civil Procedure and section 131 of the Courts of Justice Act.

The decision emphasized the respondent's success, the significant importance and complexity of the legal issues, and the reasonableness of counsel's hourly rates and time expended.

The franchisor appealed a motion judge's decision finding it breached the duty of fair dealing under s. 3 of the Arthur Wishart Act by failing to disclose that it did not receive significant volume rebates.

The motion judge had read language into a certified common issue without notice to the parties.

The Court of Appeal allowed the appeal, finding the motion judge erred by effectively amending the common issue and by concluding that the alleged non-disclosure constituted a breach of the duty of fair dealing in the performance of the franchise agreement.

The plaintiff's cross-appeal regarding the dismissal of its motion to add a new common issue was dismissed.

In this franchise class proceeding, the plaintiff moved to amend its pleading to add a new common issue alleging failures to disclose the franchisor's purchasing power and the insignificant nature of supplier volume discounts.

The court held there was no tenable basis for a generalized purchasing-power allegation, but found an arguable and in part compelling complaint concerning the non-disclosure of the virtual non-existence of meaningful volume discounts, particularly under s. 3 of the Arthur Wishart Act.

The motion to amend was nevertheless dismissed because, in the unusual procedural circumstances, allowing the amendment after the summary judgment hearing would cause non-compensable prejudice to the defendant.

The court then answered deferred common issues by holding that the franchisor had breached its s. 3 duty of good faith and fair dealing in failing to disclose whether significant volume rebates were received, and the amounts received, retained, or shared, while reserving damages for further submissions.

A reference was conducted to determine the amount owing under a mortgage following a prior order requiring the defendant to deliver vacant possession of the mortgaged property.

The self-represented defendant repeatedly attempted to adjourn the hearing and sought to introduce an unsigned accounting sheet purportedly prepared by a chartered accountant without complying with Rule 53.03 regarding expert reports.

The court excluded the document as impermissible expert evidence and rejected arguments that certain payments should reduce interest calculations differently, relying on the mortgage’s standard charge terms allowing the lender to apply payments after default in its discretion.

Based on the lender’s witness testimony and documentary evidence, the court determined the outstanding mortgage debt.

Costs were awarded to the lender on a solicitor-and-client basis pursuant to the mortgage terms.

The plaintiff franchisor brought a motion for an interim injunction to enforce restrictive covenants contained in a terminated franchise agreement.

The agreement prohibited the franchisee and its principal from operating a competing pet supply business within a specified geographic radius and from soliciting employees following termination.

Evidence showed that a competing store was opened nearby through a newly incorporated company associated with the franchisee’s spouse and that the former franchisee remained involved in its operations.

The court found a prima facie breach of the non‑competition, non‑solicitation, and post‑termination obligations, concluding that the new corporation was used to conceal the franchisee’s continued participation.

The court held that where a clear breach of a negative covenant in a franchise agreement is established, proof of irreparable harm and balance of convenience is not required, though the evidence would have satisfied those elements in any event.

The appellant appealed a judgment for an unpaid loan.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's reasons and concluding that the fresh evidence raised no defence, as the money was borrowed and not repaid.

The plaintiff in a class proceeding moved to quash the appeals of the defendant and non-party franchisees, arguing the order appealed from was interlocutory.

The order in question invalidated certain opt-out coupons but granted those class members a further opportunity to opt out after a final disposition on the merits.

The Court of Appeal held the order was final because it deprived the defendant of a binding judgment against all putative class members and of a limitations defence.

The motions to quash were dismissed.

Following summary judgment in a mortgage debt enforcement action, the court determined the appropriate costs award.

The successful lender sought substantial indemnity costs of approximately $78,500 relying on contractual mortgage provisions and the defendant’s untenable defence.

The court held that although the lender had a strong argument for elevated costs, the legal resources deployed were disproportionate given the simplicity of the claim and the self‑represented defendant’s weak position.

Exercising its discretion despite the contractual clause, the court reduced the costs award as unreasonable and excessive.

A lump‑sum costs award of $38,000 inclusive was ordered.

The plaintiff, an assignee of a mortgage, brought a motion for summary judgment for possession and payment against the self-represented defendant mortgagor.

The defendant had defaulted on the mortgage and raised various defences based on his misunderstanding of mortgage assignments and the roles of the entities involved.

The court found no genuine issue for trial regarding the default and the plaintiff's right to enforce the mortgage.

Summary judgment for possession was granted, and a reference was ordered to determine the exact amount of the mortgage debt.