L. Scott Smith

A scheduled three-hour special appointment hearing was adjourned due to a potential conflict of interest identified by counsel.

The court noted that despite the adjournment on consent, the matter was not fully ready for hearing as the plaintiff had not filed a factum and neither party had filed a compendium, both required by practice directions for special appointment hearings.

The endorsement emphasized the necessity of compliance with new mandated procedures for court filings, warning that non-compliance could result in the court declining to hear a matter.

The plaintiff sought costs for three contested motions in a class action regarding a listeria outbreak: a motion for leave, a certification motion, and a summary judgment motion.

The defendants argued for no costs or a reduced award, citing divided success and the novelty of the legal issues.

The court found the plaintiff was the successful party overall and that the issues were not novel.

The court awarded the plaintiff costs of $10,000 for the leave motion, $120,000 for the certification motion, and $20,000 for the summary judgment motion, plus disbursements and HST.

The appellant appealed a trial judge's interpretation of a will regarding a house.

The testatrix's marriage contract provided that her husband could live in the house after her death but would make no claim against her estate.

The Court of Appeal found the will ambiguous and considered extrinsic evidence, concluding that the testatrix left the house in trust consistent with the marriage contract, but subject to that, the house fell into the residue for her son.

The appeal was dismissed, and each party was ordered to bear their own costs.

The appellants appealed the dismissal of their action for breach of contract and negligent performance regarding the construction of a golf course reservoir.

On appeal, they brought a motion to amend their statement of claim to add a cause of action for negligent misrepresentation, which had not been pleaded at trial.

The Court of Appeal dismissed the motion, finding that the respondents would suffer non-compensable prejudice if the amendment were allowed post-trial.

The appeal was also dismissed, as the trial judge made no error in finding that the respondents complied with the amended agreement and that the agreement did not stipulate an average depth for the reservoir.