Mark Hines

The defendants moved for summary judgment dismissing a multi-million dollar action and seeking judgment on two promissory notes totalling $1.25 million.

The court held that a broadly worded release executed in November 2009 barred most of the plaintiffs’ claims, particularly in light of admissions that the parties had a “clean slate.” However, the enforceability of the two promissory notes raised genuine issues requiring a trial because the surrounding documentation was inconsistent and some documents were admittedly fabricated.

After conducting a mini‑trial under Rule 20.04(2.2), the court concluded that a full appreciation of the evidence regarding the promissory notes could not be achieved on a summary judgment record.

Most of the plaintiffs’ action was dismissed, but the counterclaim relating to the promissory notes was directed to trial.

The appellants appealed an order declaring that their medical malpractice action against the hospital defendants had been settled.

The motion judge had found that the appellants' offer to consent to a dismissal was contingent on the remaining defendants undertaking not to allege negligence against the hospital defendants, and that this undertaking had been fulfilled.

The Court of Appeal allowed the appeal, finding that the appellants had revoked their offer in writing before the remaining defendants purported to fulfill the undertaking.

As the offer was withdrawn before the condition precedent was met, no settlement was reached.

The plaintiff, acting as Trustee in Bankruptcy for Bre-X Minerals Ltd., brought a motion for leave to discontinue a derivative action against the remaining defendants without costs.

The action had dwindled to insider trading claims, and the Trustee lacked the financial resources to continue prosecuting it or to enforce any potential judgment overseas.

The court found the proposed discontinuance to be fair and reasonable to all affected shareholders and granted leave to discontinue the action pursuant to section 249(2) of the Business Corporations Act.

The plaintiffs in a Canadian class action brought a motion to divide approximately $5.2 million from a partial settlement with Bresea Resources Ltd. between Canadian and American class members.

The plaintiffs also sought to amend the settlement agreement to continue holding a reserve for adverse costs.

The court granted the amendment for the adverse costs reserve.

Regarding the settlement distribution, Canadian class counsel argued that a previously agreed 67:33 split in favour of the Canadian class was a mistake and should be 80:20 based on share ownership.

The court rejected the claim of mistake, finding the 67:33 split reasonable and fair as trading losses do not necessarily correlate directly with share ownership.

The appellant appealed the dismissal of its motion to stay or dismiss an Ontario action commenced by the respondent.

The appellant relied on a forum selection clause in a Confidentiality Agreement designating Pennsylvania courts.

The motion judge had found the agreement unenforceable for lack of consideration because the respondent provided services through a corporate entity.

The Court of Appeal allowed the appeal, finding that the Consulting and Confidentiality Agreements must be read together as a composite whole, and that the mutual promises regarding access to and protection of proprietary information constituted valid consideration.

The cross-appeal was dismissed, and the Ontario action was stayed.

The appellants appealed a decision dismissing their claim that they were entitled to a pension option not contained in the respondent's pension plan.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that there was no statutory or common law obligation to offer such an option, particularly in light of s. 22(5) of the Pension Benefits Standards Act.

The appellant hospital appealed a jury verdict finding it liable for medical malpractice resulting in an infant's permanent brain injury (cerebral palsy) due to oxygen deprivation during birth.

The jury found the attending nurse breached the standard of care by failing to use electronic foetal monitoring and failing to properly perform intermittent auscultation.

The Court of Appeal dismissed the appeal, holding that there was sufficient expert evidence to support the jury's findings on both the breach of the standard of care and causation, and that the verdict was not plainly unreasonable.