Marc A. Munro

The appellant, a former car salesperson, appealed the dismissal of his action for an accounting of unpaid commissions.

The trial judge found that the commissions were calculated in accordance with the employer's pay plans, as clarified by car dealership industry practice, and rejected the appellant's claim that he did not understand the calculations.

The Court of Appeal upheld the trial judge's findings of fact and credibility, concluding there was no basis to interfere with the decision.

The appeal was dismissed with costs.

Following an appeal where the appellants achieved divided success, the Court of Appeal determined the appropriate costs awards for both the appeal and the trial.

The appellants were awarded reduced partial indemnity costs for the appeal to reflect their divided success.

For the trial costs, the respondents were awarded their agreed costs against the unsuccessful appellant, and a Sanderson order was made allowing the respondents to recover the trial costs they owed to the successful co-appellants from the unsuccessful appellant.

The appellants purchased a house from the respondent vendors and subsequently discovered defects.

They sued the vendors for fraud and the home inspector for negligence.

The motion judge granted summary judgment dismissing the action against all defendants.

On appeal, the Court of Appeal upheld the decision, finding that the appellants' expert evidence was insufficient to ground a fraud claim against the vendors, and that the home inspector's report clearly identified defects and limitations.

The court also rejected the appellants' claim of reasonable apprehension of bias.

The appeal was dismissed.

The appellants appealed a trial judgment finding them liable for unlawful conduct conspiracy and Purina liable for breach of contract, resulting in a $2 million damages award.

The Court of Appeal allowed the appeal in part, dismissing the conspiracy claim because only Purina's conduct was unlawful.

The Court also reduced the breach of contract damages, holding that damages should be calculated based on the contract's 60-day termination clause, which was the least burdensome mode of performance.

The prejudgment interest rate was reduced to the statutory rate of 5.1 percent.

However, the $30,000 punitive damages award against Purina was affirmed due to its deceitful and reprehensible conduct in surreptitiously supplying a competitor in the respondents' exclusive territory.

The appellant franchisee appealed an order appointing a receiver over its business.

The franchisee argued that the franchisor had forgiven its debt for unpaid royalties and advertising contributions through two letters, and that the application judge erred in considering PST arrears not pleaded in the notice of application.

The Court of Appeal dismissed the appeal, finding that the letters were merely proposals requiring acceptance, which never occurred.

The court also held that the PST default was properly considered as it was raised in supporting affidavits without causing prejudice, and rejected new arguments regarding jurisdiction, waiver, and estoppel.

Following the dismissal of the appellant's appeal, the successful respondents sought costs totaling approximately $98,000 on a substantial indemnity basis.

The appellant conceded the respondents' entitlement to costs but argued the quantum was excessive, suggesting $20,000 was appropriate.

The Divisional Court reviewed the factors under Rule 57.01, noting the appeal was not particularly complex despite the appellant's conduct lengthening the proceedings.

Applying the principle that costs must be fair and reasonable rather than an exact measure of actual costs, the court found the respondents' claimed hours and amounts to be unreasonable.

The court fixed total costs at $25,000, apportioned among the three respondent groups.

The respondents, estate trustees, sought to be removed due to personal hardship and a conflict of interest arising from a mortgage they registered against the estate's sole asset to cover litigation costs.

The motion judge removed them without appointing a replacement or providing for the estate's administration.

The Court of Appeal allowed the appeal, holding that while a court has inherent equitable jurisdiction to remove a sole trustee without appointing a replacement, it must ensure the orderly administration of the estate.

The matter was remitted to the Superior Court to reconsider the removal application alongside a motion for directions.

The appellant appealed a civil jury verdict dismissing his claims for assault, negligence, and intentional infliction of nervous shock against police, ambulance attendants, and store security, and awarding damages on the respondents' counterclaims.

The appellant argued the trial judge erred by refusing adjournments, admitting prejudicial expert testimony, and excluding medical reports.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's discretionary rulings on adjournments and evidence, and concluding there was a sufficient basis for the jury's punitive damages award.

The appellants sued their former solicitor for negligence after discovering a merged title issue under the Planning Act prior to closing a real estate transaction.

The solicitor offered to correct the issue at his own expense via a nunc pro tunc application, but the appellants' new lawyer secretly pursued a parallel severance application and sought to recover those costs.

The trial judge found the solicitor negligent but held the costs of the parallel application were not reasonably foreseeable.

The trial judge also awarded costs against the appellants for failing to accept settlement offers that exceeded their trial recovery.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's foreseeability analysis or costs award.

The appellants appealed the trial judge's assessment of damages and dismissal of claims regarding a fraudulent kick-back scheme perpetrated by two officers of the appellant company and its suppliers.

The Court of Appeal found the trial judge erred in deducting advances made by the officers from the damages awarded for secret commissions, as the officers had no authority to borrow money from the bank to repay themselves.

The damages against the officers and their company were increased to $73,641.45.

The court also set aside a counterclaim judgment in favour of a supplier, finding he had already been fully paid.

The remainder of the appeal, including claims against the bank for unauthorized withdrawals and altered documents, and claims for punitive damages, was dismissed.

The appellants appealed a trial judgment dismissing their action for a declaration of ownership or an easement over a small triangle of land on a shared driveway.

The Court of Appeal upheld the trial judge's finding that the respondents had established adverse possession, noting the finding was based on a reasonable assessment of witness testimony.

The Court also upheld the conclusion that no prescriptive easement was acquired, as there was no evidence the appellants were prevented from accessing their utility fixtures.

The appeal was dismissed with costs.