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The respondents had rescinded the agreement due to the appellants' failure to provide disclosure under the Arthur Wishart Act.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

Following a successful application and counter‑application concerning a boundary dispute between neighbouring properties, the successful parties sought full indemnity costs exceeding $82,000 plus disbursements.

The court held that full or substantial indemnity costs are exceptional and generally require reprehensible, scandalous, or outrageous conduct, which was not present.

The dispute concerned a narrow strip of land and was neither legally nor factually complex.

The court also found the claimed hourly rates and time spent excessive and disproportionate to the issues involved.

Costs were fixed at $25,000 plus disbursements and applicable taxes.

Following a successful motion for summary judgment on a mortgage, the plaintiff sought costs on a full indemnity basis pursuant to the mortgage terms.

The defendant, who was self-represented, declined to provide submissions on costs despite being given the opportunity by the court.

The court considered the legal complexity of the defences raised and the contractual provision providing for substantial indemnity costs.

The court held the amount claimed by the plaintiff was appropriate and ordered the defendant to pay costs in the amount sought.

The parties brought competing motions for summary judgment arising from an oil spill at a residential property allegedly caused when falling ice and debris severed an outdoor fuel oil line connected to a tank installed by one defendant and later visually inspected by another.

The plaintiff alleged negligent installation and inspection in breach of regulatory standards requiring protection of fuel lines from physical damage.

The defendants argued the event was unforeseeable and resulted from the collapse of building components for which the homeowner was responsible.

The court held that the case involved conflicting expert opinions regarding the standard of care and causation.

Applying the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch, the court concluded that the dispute required the trial process to properly evaluate the competing expert evidence.

The parties brought competing motions for summary judgment arising from an oil spill at a residential property allegedly caused when falling ice and debris severed an outdoor fuel oil line connected to a tank installed by one defendant and later visually inspected by another.

The plaintiff alleged negligent installation and inspection in breach of regulatory standards requiring protection of fuel lines from physical damage.

The defendants argued the event was unforeseeable and resulted from the collapse of building components for which the homeowner was responsible.

The court held that the case involved conflicting expert opinions regarding the standard of care and causation.

Applying the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch, the court concluded that the dispute required the trial process to properly evaluate the competing expert evidence.