James K. Ball

The defendants Mercedes-Benz and Mitsubishi brought a motion to dismiss the proposed class action for delay pursuant to s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs argued that the court had discretion not to dismiss the action and that all defendants must join the motion.

The court held that s. 29.1 is mandatory and does not require all defendants to join.

The action was dismissed against the moving defendants, but the court exercised its jurisdiction under s. 12 to order that the dismissal be set aside if the plaintiffs file a complete certification motion record within thirty days.

The plaintiffs sought compensation for historical SRED tax consulting services allegedly provided to a family-owned manufacturing business, advancing claims in contract, quantum meruit, and unjust enrichment.

The court found no contract was proven with either plaintiff, rejected the corporate plaintiff’s attempt to recover for services personally supplied by the individual plaintiff, and held that although the defendant benefited from the work, its retention of that benefit was not unjust given the parties’ reasonable expectations in a non-arm’s length family-business context.

The court further held that the claims were, in any event, largely statute-barred under the Limitations Act, 2002, and rejected the plaintiffs’ promissory estoppel argument.

Both actions were dismissed, with costs presumptively payable to the defendant.

The appellants appealed a declaratory order that effectively determined a golf club board made no finding of assault or battery by the respondent.

This was a central contested issue in the pending lawsuit.

The Court of Appeal allowed the appeal and set aside the order, holding that a contested factual finding cannot be determined in advance of trial merely on the consent of some parties, as this would impermissibly sanction a collateral attack at trial on an existing court order.