Kirk Stevens

The respondent was completely successful on appeal.

The Court of Appeal awarded the respondent its costs of the appeal on a partial indemnity basis, fixed at $14,000 plus disbursements and applicable GST.

The appellant, Clarica Trust Company, appealed a motion judge's decision that a crossclaim by the respondent, Reemark Sterling I Limited, was not barred by cause of action estoppel or abuse of process.

The crossclaims arose from a prior action involving a bank, where it was determined that Mutual Trust (Clarica's predecessor) breached a financing commitment.

The Court of Appeal dismissed the appeal, finding that Reemark and the bank had independent causes of action, and it was not an abuse of process for Reemark to advance its claim separately.

Furthermore, the court held that it would be an abuse of process to permit Clarica to re-litigate the issue of liability which had already been determined against it in the prior action.

The appeal concerned whether a municipality widening a road and installing a continuous centre median was required under s. 298(1) of the Municipal Act to provide another means of access to a commercial property whose direct left-turn access was restricted but not entirely eliminated.

The court held that s. 298(1) applies only where the effect of the by-law is to deprive the landowner of the only means of ingress and egress to the highway.

A mere limitation on access, even if commercially significant, does not trigger the statutory right to alternate access.

The respondents' remedy was confined to compensation for injurious affection under the Expropriations Act.

The appeal was allowed and the declaratory relief was set aside.

The appeal concerned whether an accountant providing tax planning and investment advice owed fiduciary duties to a client where the advisor fostered trust and reliance while failing to disclose a financial relationship with the developers of the recommended tax shelter investments.

The majority held that a fact-based fiduciary relationship arose because the client reasonably expected independent advice given solely in his best interests, and the undisclosed conflict breached both fiduciary and contractual duties.

The Court restored the trial judgment awarding restitutionary damages equal to the client's net losses, holding the breaching advisor bore the market risk once the client proved he would not have entered the investments but for the non-disclosure.

The dissent would have confined fiduciary duties to relationships of total dependency and would have limited contract damages because the market collapse, not the non-disclosure, caused the devaluation.