Meaghan Coker

In a commercial lease dispute, the appellants challenged findings that the landlord breached the lease and acted in bad faith by terminating access to loading facilities central to the tenant’s business operations.

The court upheld the application judge’s lease interpretation, including that contractual improvements and related access rights could not be nullified through redesignation of common areas.

The court also upheld the finding of repudiatory breach, rejecting the argument that temporary restoration under a without prejudice consent order cured the breach.

A new argument that the tenant had irrevocably affirmed the lease was not entertained on appeal and was unpersuasive in any event.

The appeal was dismissed, with costs to the respondent.

The court considered a Rule 21 motion by Shell Canada Products and Tosh Skalosky to strike the claim against Skalosky personally.

The court found that the plaintiffs failed to plead material facts supporting personal liability against Skalosky, as required by law.

The claim against Skalosky was struck, but the plaintiffs were granted leave to amend their claim if they could plead sufficient facts.

Each party was ordered to bear their own costs.

The court found that the new landlord, Anisa Holdings Ltd., fundamentally breached, repudiated, and/or constructively evicted the tenant, Convocation Flowers Incorporated, by eliminating access to loading docks and the north driveway, which were essential for the tenant’s business.

The court also found a breach of the duty of good faith.

The issue of damages was bifurcated and ordered to proceed to trial.

The plaintiffs brought a motion under Rule 32 of the Rules of Civil Procedure seeking approval for a protocol for destructive testing of a medical device (Stryker Trevo Stent Retriever) that fractured during a medical procedure, leaving a portion in the plaintiff Evelyn Logan's brain.

Both the plaintiffs and the defendant Stryker Canada Corp. agreed on the necessity of testing but disputed the specific method, scope, and costs.

The court found the destructive testing of the "Critical Portion" of the device to be necessary and useful for determining the cause of failure.

While the plaintiffs' proposed protocol was deemed too vague, the court adopted a modified version of Stryker's proposed protocol, balancing the need for testing with the potential prejudice to Stryker.

The court ordered the plaintiffs to bear the cost of the testing and an Exemplar Device, and established a phased testing approach, including preliminary testing on an Extra Wire and an Exemplar Device before proceeding with the Critical Portion, with provisions for Stryker to observe and object to the final method.

No costs were awarded due to divided success.

This endorsement addresses the costs arising from a dismissed motion brought by Evergreen Community (Burlington) Ltd. for an injunction and an order for inspection against FirstCanada ULC.

FirstCanada, the successful party in the motion, sought costs on a mixed partial/substantial indemnity scale, while Evergreen argued for partial indemnity.

The court awarded FirstCanada costs on a partial indemnity scale, finding that Evergreen was not unreasonable in rejecting FirstCanada's non-Rule 49 settlement offer, which included a broad release that would have precluded future claims.

The total costs awarded to FirstCanada were $175,214.10.

Evergreen Community (Burlington) Ltd. brought a motion seeking an interim or interlocutory injunction against FirstCanada ULC to prevent alleged ongoing environmental contamination (LNAPL) from FirstCanada's property onto Evergreen's, and an order for inspection under Rule 32 to conduct groundwater and soil testing.

Evergreen argued the contamination stalled its billion-dollar development project.

The court dismissed both requests, finding that the injunction sought was mandatory and Evergreen failed to meet the strict 'strong prima facie case' test, particularly regarding irreparable harm and the ongoing nature of contamination.

The court preferred FirstCanada's expert evidence that a Record of Site Condition (RSC) or Risk Assessment could be obtained despite existing contamination.

The order for inspection was denied due to procedural unfairness and lack of demonstrated necessity for the upcoming summary judgment motion.

This appeal arose from two actions tried together concerning breaches of a license agreement and fiduciary duties related to powder-coating business ventures.

The trial judge found that Robert Langlois breached a License Agreement and fiduciary duties to the "ACS plaintiffs" (7868073 Canada Ltd. et al.), with Jeffrey Sugar and Gary Sugar knowingly assisting.

Profits were disgorged to the ACS plaintiffs, and a separate action by Gary Sugar was dismissed as moot.

The appellants (Gary Sugar and the "Langlois appellants") challenged the trial judge's findings on the License Agreement's validity and termination, the existence and continuation of fiduciary duties, and the misappropriation of corporate opportunities.

The ACS plaintiffs cross-appealed the costs award.

The Court of Appeal dismissed all appeals and denied leave to cross-appeal costs, affirming the trial judge's conclusions that the License Agreement was valid and not terminated, that fiduciary duties continued, and that corporate opportunities were misappropriated.

This is a costs endorsement following an appeal where success was divided between the parties.

The Court of Appeal for Ontario determined that, given the divided success, no order of costs would be made for the appeal.

The Court of Appeal for Ontario heard an appeal from a judgment awarding over $2.5 million in damages to a cyclist injured in a collision with a motor vehicle.

The appellants, the driver and the excess insurer, challenged the trial judge's findings on liability, damages, and costs.

The Court dismissed the appeal on liability, future care, deductions, and contingencies, upholding the trial judge's finding that the driver failed to discharge the reverse onus under the Highway Traffic Act.

However, the Court allowed the appeal regarding the past and future loss of income award, finding a palpable and overriding error in the trial judge's calculation of the pre-collision earning capacity by misinterpreting the currency of expert evidence.

The income loss award was varied to adjust the earning capacity figure to 2022 dollars instead of 2012 dollars.