M. Michael Title

Jack Ganz Consulting Ltd. (JGC) appealed a summary judgment dismissing its breach of contract and dependent contractor claims against Recipe Unlimited Corporation (Cara).

JGC alleged Cara breached a 2006 consulting agreement, including a stock option provision, and failed to provide reasonable notice upon termination.

The motion judge found JGC waived an auto-renewal clause, terminating the agreement in 2010, and that no other written agreement replaced it.

The Court of Appeal found the motion judge erred in finding a unilateral waiver for no consideration and that there was a genuine issue for trial regarding the terms governing the parties' relationship after 2008, given the uncertainty in the record and the parties' conduct.

The appeal was allowed, the summary judgment set aside, and the matter remitted for trial.

Following the dismissal of the plaintiff's $27 million breach of contract claim on summary judgment, the successful defendant sought costs on a substantial indemnity basis.

The defendant relied on the plaintiff's conduct and a pre-litigation offer to settle for $70,000.

The court found the plaintiff's conduct was not reprehensible and held that Rule 49 cost consequences do not apply to pre-litigation offers.

The court awarded the defendant partial indemnity costs fixed at $180,000, applying a reduction to the defendant's claimed hours and rates for proportionality.

The appellants appealed from a motion judge's order dismissing their motion for a declaration that they were entitled to indemnification for legal fees and expenses under a consulting agreement.

The Court of Appeal determined that the order was interlocutory rather than final because it did not address the substantive merits of whether the consulting agreement required advance payment of legal fees or whether there had been a breach.

The court quashed the appeal and noted that the appellants could seek leave to appeal to the Divisional Court or bring a separate application for interpretation of the agreement.

The plaintiff consultant brought a motion to enforce a contractual indemnification provision for the advance payment of legal fees by the defendant companies.

The motion was brought before the close of pleadings.

The court found that the corporate indemnity provisions of the CBCA and OBCA did not apply because the consultant was a corporation, not an individual officer or director.

However, the court dismissed the motion, concluding that the relief sought effectively amounted to a partial summary judgment or a mandatory injunction, and the plaintiff had not complied with the requirements for either.

The corporate plaintiff, 2505805 Ontario Inc. (the "Consultant"), brought a motion to enforce a contractual indemnification provision in a consulting agreement, seeking advance payment of legal fees.

The defendants argued the motion was an improper attempt at partial summary judgment and that corporate indemnity statutes (CBCA/OBCA) applied, requiring the consultant to have acted honestly and in good faith.

The court dismissed the motion, finding that the relief sought constituted partial summary judgment on issues central to the main action, which is generally discouraged by the Court of Appeal.

Furthermore, the court held that the corporate indemnity statutes did not apply because the Consultant was a corporation, not an individual officer or director, and therefore not subject to those specific statutory provisions.

The appellants, owners of a residential property in Caledon, Ontario, appealed a decision dismissing their application against the Ontario Heritage Trust and a local resident.

The appellants' property is accessible only via a 1 km driveway through parkland owned by the OHT, over which they hold an easement for ingress and egress.

The appellants claimed the easement granted them exclusive use of the driveway and sought to prevent public access by hikers using trails on the OHT property.

The court upheld the lower court's decision, finding that the deed of easement did not grant exclusive use, that public use by hikers did not substantially interfere with the appellants' easement rights, and that an injunction against the publication of a hiking guide was not warranted.

The moving party sought to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the responding parties over a property slated for redevelopment.

The dispute centered on an alleged agreement to sever and transfer a heritage house on the property to the responding parties.

The court applied the Dhunna factors and found that the responding parties' interest was primarily financial rather than a genuine claim for specific performance of unique land.

The court ordered the CPL discharged on the condition that the moving party post $1 million in security, allowing the redevelopment project to proceed.

A commercial tenant brought an action alleging breach of an exclusive use clause in a shopping mall lease, claiming loss of profits after its restaurant business failed.

The landlord counterclaimed for unpaid rent and utilities and sought to enforce a personal guarantee provided by the tenant’s principal.

The court dismissed the tenant’s claim and found that lease covenants are independent, meaning rent remained payable regardless of the alleged breach.

The guarantor could not rely on alleged oral amendments or the absence of a separate indemnity document to avoid liability under the written guarantee.

Judgment was granted on the counterclaim for rent arrears with contractual interest and substantial indemnity costs.

The defendant brought a motion to dismiss the plaintiff's construction lien action for failure to pay a previous costs award.

The plaintiff brought a cross-motion to stay its own action and compel the defendant to participate in arbitration pursuant to their contract.

The court held that a master does not have jurisdiction to appoint an arbitrator under section 10(1) of the Arbitration Act, as that requires an application to a judge.

The court exercised its discretion under section 47 of the Construction Lien Act to dismiss the remaining contract action, noting it served no purpose after the lien was discharged.

The court also dismissed the action based on the plaintiff's failure to pay the prior costs award.

The defendant general contractor brought a motion to set aside a noting in default and default judgment obtained by the plaintiff subcontractor in a construction lien action.

The plaintiff had served the statement of claim by registered mail to an address it knew the defendant no longer occupied, despite knowing the defendant's actual business address.

The court found the defendant moved promptly upon learning of the default judgment, adequately explained the default due to the method of service, and provided sufficient evidence of a defence based on alleged deficiencies and the lien being registered out of time.

The motion was granted and the default judgment was set aside with no order as to costs.