Louise Moher

The moving party sought to transfer a contract rectification action from Toronto to Ottawa under Rule 13.1.02 of the Rules of Civil Procedure.

The dispute arose from a federal government wireless services transition contract negotiated and administered in the National Capital Region, and the material witnesses for both sides were located there.

Applying a holistic balancing of the venue-transfer factors, the court held that the moving party had shown Ottawa was significantly better than Toronto and that transfer was desirable in the interests of justice.

The motion was granted, subject to approval of the Regional Senior Justice for the East Region, with costs left for submissions if necessary.

Non-party insured lawyers moved under Rule 37.14(1) to set aside or vary an earlier order permitting garnishment of the professional liability policy of a lawyer and law firm, where the prior order effectively exhausted the policy limits.

The court held the moving parties were persons affected by the earlier order and had failed to appear because they were not served and did not receive adequate, meaningful notice.

On the merits, however, the court rejected the new coverage and priority arguments, holding the underlying orders requiring payment of client trust funds engaged the policy and supported garnishment.

The motion was dismissed, and no costs were awarded because all sides bore some responsibility for the duplicative proceedings.

Following the release of the main appeal judgment, the respondents CB Richard Ellis Limited, John Lafontaine, Karen Pickernell, and Carl Lavoie requested costs of the appeal.

They had filed a factum but made no oral submissions.

The Court of Appeal agreed with the appellant that awarding a full counsel fee would be duplicative, and instead awarded these respondents one half of the costs awarded to the other respondents, fixed at $3,750 inclusive of disbursements and taxes.

The plaintiff appealed an order dismissing its action for delay at a status hearing.

The action had not progressed beyond the pleadings stage five years after it was commenced.

The plaintiff failed to comply with a timetable agreed upon at a previous status hearing.

The Court of Appeal dismissed the appeal, finding that the status hearing judge did not err in considering the entire history of the delay, inferring the defendants' belief that the action was abandoned, and dismissing the action without evidence of actual prejudice to the defendants.

Following the dismissal of the appeal and the allowance of the respondent's cross-appeal on costs, the Court of Appeal determined the costs of the trial and appeal.

The parties agreed to $10,000 for the appeal costs.

For the trial costs, the respondent sought $76,244.00 in fees.

The court declined to award substantial indemnity costs from the date of a Rule 49 offer because the statement of claim was amended later to add the successful cause of action under the Sale of Goods Act.

Noting that the preparation time was lengthened by unsuccessful claims and that the costs sought were disproportionate to the $66,380.39 recovery, the court fixed the respondent's trial costs at $35,000 plus disbursements.

The appellant manufactured and sold a fuel storage tank to the respondent.

Less than five months after being put into service, the tank leaked diesel fuel due to internal corrosion, causing significant damage.

The trial judge awarded damages to the respondent for negligence and breach of the implied warranty under the Sale of Goods Act.

On appeal, the Court of Appeal upheld the trial judge's finding that the amendment to plead the Sale of Goods Act was not statute-barred.

The Court dismissed the appeal, finding that the appellant breached the implied condition of merchantability under s. 15(2) of the Sale of Goods Act, as the defect existed at the time of delivery even if its exact cause was unknown.

The respondent's cross-appeal on costs was allowed.