Marcus Joseph Boire

On cross-appeal from a Superior Court judgment, the appellants challenged four discrete issues arising from a contractual dispute.

The Court of Appeal allowed the cross-appeal in part, finding that the respondents were entitled to restitution of interest paid relating to the Petting Zoo property, prejudgment interest on damages awarded for the Petting Zoo, and reimbursement of municipal property taxes paid on the property.

The Court upheld the motion judge's calculation of principal owed and dismissed the appeal on the main issues.

The appellants were awarded costs of the cross-appeal.

The appellant appealed a partial summary judgment granting rescission and damages with respect to one vacant property (Petting Zoo) and issuing a certificate of pending litigation with respect to another property (Lot 511).

The respondents had made payments totalling $168,727.74 between 2006 and 2013 towards the purchase of both properties, but the appellant retained title to both.

The appellant argued the respondents had defaulted on their payment obligations and forfeited their interest.

The Court of Appeal dismissed the appeal, finding the appellant's own breach in failing to obtain severance of Lot 511 justified the respondents' cessation of payments and entitled them to the remedies granted.

A contractor commenced a construction lien action arising from landscaping work and a subsequent window replacement contract with homeowners.

The homeowners counterclaimed for significant damages alleging deficiencies in landscaping and improper installation of windows that leaked and were not installed in a good and workmanlike manner.

The court found minor deficiencies in the landscaping work and significant deficiencies in the window installation, awarding set‑off damages for both.

However, the homeowners failed to prove the full magnitude of their counterclaim and the court limited damages largely to the reasonable cost of reinstalling the windows.

After applying set‑offs, the homeowners were ordered to pay the contractor the remaining balance under the contract plus prejudgment interest, with each party bearing its own costs.

The parties brought competing summary judgment motions in a construction lien action involving a modest claim and counterclaim arising from a residential contract.

The motions were opposed as premature due to credibility issues and the early stage of the proceedings.

The court emphasized the limits on a master’s powers to weigh evidence under Rule 20 and the proportionality principles under Rule 1.04 and the Construction Lien Act.

Concluding that summary judgment would likely delay resolution, the court endorsed a consent judgment of reference and directed that the matter proceed by way of a short summary trial before a case management master.

The parties brought competing summary judgment motions in a construction lien action involving a modest claim and counterclaim arising from a residential contract.

The motions were opposed as premature due to credibility issues and the early stage of the proceedings.

The court emphasized the limits on a master’s powers to weigh evidence under Rule 20 and the proportionality principles under Rule 1.04 and the Construction Lien Act.

Concluding that summary judgment would likely delay resolution, the court endorsed a consent judgment of reference and directed that the matter proceed by way of a short summary trial before a case management master.

The defendants brought a motion under Rule 21 of the Rules of Civil Procedure to strike the claim against an individual insurance broker employee on the basis that it disclosed no reasonable cause of action and was frivolous, vexatious, or an abuse of process.

The plaintiff alleged a longstanding relationship with the broker spanning 11 years, with annual consultations and reliance on the broker as its agent in obtaining and renewing insurance coverage.

The moving parties argued that the broker owed no individual duty of care because he acted within the scope of his employment and any liability would be vicarious.

The court held that Canadian negligence law does not impose a blanket rule preventing employees from owing duties of care to customers of their employer and that such questions depend on the specific factual circumstances.

Given the pleaded longstanding advisory relationship, the claim against the broker had a reasonable prospect of success and could not be struck at the pleadings stage.