Michael Fleischmann

The appellants appealed an order dismissing their motion for summary judgment and granting the respondents' cross-motion for summary judgment, which declared the respondents entitled to statutory rescission of their franchise agreement.

The respondents had rescinded the agreement due to the appellants' failure to provide disclosure under the Arthur Wishart Act.

The Court of Appeal upheld the motion judge's finding that the appellants were not exempt from disclosure requirements, as they had required a new franchise agreement and a $10,000 transfer fee.

The appeal was dismissed.

Following the dismissal of the applicant's motion for an interlocutory injunction to stay a decision lifting a stop work order, the court determined costs.

The applicant argued it was a public interest litigant and should not pay costs.

The court found the applicant's strategy of narrowing issues to natural justice lacked evidentiary support on the merits and that it was irresponsible to hide behind a lack of funds after asserting it could meet undertaking requirements.

Costs were fixed at $27,000 payable to the developer on a substantial indemnity basis and $5,000 payable to the municipality.

The applicant sought an interlocutory injunction to stay a decision of the County Council lifting a stop work order and confirming a special permit that allowed the respondent landowner to cut trees on its property.

The applicant argued that the County Council denied it natural justice by accepting reply evidence without allowing rebuttal and by allowing two councillors who had not heard the evidence to vote.

The court dismissed the motion, finding no serious issue to be tried regarding natural justice, as the reply evidence was responsive to unexpected assertions and the two mistakenly recorded votes made no mathematical difference to the outcome.

The court also found the applicant failed to demonstrate irreparable harm or that the balance of convenience favoured an injunction.

This was a costs endorsement following a motion to amend pleadings to add a personal claim.

The court held that although the moving party succeeded on the amendment motion due to the mandatory nature of Rule 26.01, he had no reasonable expectation of recovering his costs because the motion was necessitated by his own failure to plead the claim properly in the first instance.

The responding defendants were also denied compensatory costs of the motion generally because their responding affidavit was largely unnecessary and elevated the costs of the motion.

However, the court applied the Rule 39.02 presumption and awarded the responding defendants partial indemnity costs for an unnecessary cross-examination on affidavit.

No costs were awarded to the co-plaintiff insurer.