Neil G. Wilson

The appellant purchasers appealed a judgment enforcing a limitation of liability clause in a pre-construction condominium agreement of purchase and sale that restricted their damages for the respondent developer's breach to the return of deposits with interest.

The appellants argued the clause was unconscionable, contrary to the consumer protections of the Tarion Addendum, and that the respondent should have brought it to their attention.

The Court of Appeal found no error, noting that the appellants were sophisticated purchasers represented by counsel who negotiated significant changes to the agreement, and that the Tercon analysis provided an effective safeguard against abuse of limitation clauses.

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 plaintiff, a fitness equipment retailer, brought a motion for an interim injunction to stop the defendants' spice import and distribution business from transmitting odours into the plaintiff's adjacent condominium unit.

The defendants argued the Condominium Authority Tribunal had exclusive jurisdiction, that building deficiencies rather than their operations caused the problem, and that the plaintiff failed to demonstrate irreparable harm.

The court found the plaintiff established a strong prima facie case of nuisance, demonstrated irreparable harm through health impacts and business losses including reputational damage and loss of goodwill, and that the balance of convenience favoured the plaintiff.

The court granted the interim injunction.

The Court of Appeal for Ontario dismissed Arista Homes Limited's appeal from a summary judgment awarding Ellen De Castro eight months’ salary in lieu of notice following her dismissal without cause.

The court upheld the motion judge’s finding that the employment contract’s for-cause termination clause was unenforceable because it contravened the Employment Standards Act, 2000 by permitting termination without notice in circumstances broader than the statute allows.

The court emphasized the remedial purpose of the ESA and the interpretive principle that ambiguities in employment contracts are to be resolved in favour of employees.

The court considered whether the assessment of costs following settlement should be conducted by an assessment officer or by a judge.

The plaintiffs sought to have the court fix costs, while the defendants argued for assessment by an assessment officer under Rule 57.04 of the Rules of Civil Procedure.

The court held that, as the matter settled before trial and the court had only a cursory knowledge of the facts, the assessment should be conducted by an assessment officer as contemplated by the Rules.

The court encouraged the parties to attempt to resolve costs without assessment if possible.

The decision addresses a motion by the plaintiff to amend her statement of claim in a real estate dispute.

The plaintiff sought to add claims related to a "Development Pause" and "Walk Away Offers" in a failed home purchase.

The court found the Development Pause amendments were statute-barred and dismissed them, but allowed amendments regarding the Walk Away Offers, as they were timely and not prima facie unmeritorious.

The court also ordered further document disclosure and permitted further discovery, deferring a decision on certain refusals.

This appeal concerned a failed agreement of purchase and sale (APS) for a residential development, where the appellant (buyer) had an express obligation to obtain severance approval but failed to communicate or take steps for almost five years.

The respondent (seller) subsequently refused access to the property, deeming the APS terminated.

The appellant sought declarations that the APS was valid and for specific performance.

The application judge dismissed the appellant's application, finding the appellant in breach due to inordinate delay and the respondent justified in treating the APS as ended.

The Court of Appeal upheld this decision, affirming that where an APS has no fixed deadline, performance must occur within a reasonable time, and that inordinate, unexplained delay can constitute a fundamental breach justifying termination without a prior notice of a new deadline, depending on the circumstances.

The plaintiff, severely injured in a correctional facility assault, sought leave to amend his statement of claim to identify anonymous correctional officers and lift a statutory stay to pursue claims against them, alleging bad faith.

The court denied leave to add the officers, finding no reasonable prospect of success on the bad faith claim.

While the plaintiff demonstrated good faith in bringing the action, the officers' actions, though negligent, did not meet the high threshold for bad faith, which requires intent or conscious wrongdoing.

The court also denied leave to include a breach of fiduciary duty claim against the individual officers, as the Crown generally owes no fiduciary duty to inmates, and no personal duty was pleaded.

Leave was granted for a minor amendment to plead specific conduct from an investigation report.

The plaintiff brought a post-judgment motion seeking a contempt order and other relief against the defendants for concealing assets and failing to comply with disclosure orders in aid of execution of a judgment for misappropriated funds.

The court found the defendants in contempt under Rule 60.18(5) for deliberately avoiding their obligations by redirecting funds to a spouse's account, opening an undisclosed bank account, and refusing to disclose client receivables.

The court ordered specific steps to purge the contempt, re-attendance at examination, and written questions for the defendant's wife.

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.

The plaintiff, 784773 Ontario Limited O/A Lowton Co-Tenancy, brought a motion for summary judgment against the defendants, Michael Larkin and Larkin + Land Use Planners Inc., for misappropriated funds while acting as trustees.

The defendants admitted to misappropriating funds and owing a total of $1,728,304, of which $1,038,616 had already been paid via a partial judgment.

The remaining contentious issue was whether the plaintiff was entitled to the entirety of the remaining $739,926, as the defendants argued it might belong to other group members.

The court found no genuine issue requiring a trial, emphasizing the admitted breach of fiduciary duty and misappropriation, and ruled that the wrongdoer should not benefit from a lack of exacting proof.

The motion was granted, awarding the plaintiff the remaining $739,926, reimbursement for forensic accounting costs, and a declaration that the debt arose from fraud/misappropriation while acting in a fiduciary capacity.

The appellant, Chang Jiu Chen, appealed a summary judgment that found his purported rescission of an Agreement of Purchase and Sale for a condominium unit invalid and constituted an anticipatory breach.

The appellant claimed a "material change" under the Condominium Act, 1998, due to uncompleted amenities (parkette and entry/exit gates).

The Court of Appeal upheld the motion judge's decision, ruling that the uncompleted amenities were statutorily excluded from the definition of "material change" and that the appellant's prior communications demonstrated an unwillingness to close, thus constituting an anticipatory breach.

The court also affirmed a good faith requirement for notices of rescission under the Act.

The appeal was dismissed, and costs were awarded to the respondent.

Michael Beaudin, severely injured in a dirt bike motocross competition, sought statutory accident benefits from Travelers Insurance.

Travelers denied coverage, arguing the dirt bike was not an "automobile" under the Insurance Act and Statutory Accident Benefits Schedule (SABS) because it was exempt from the Off-Road Vehicles Act (ORVA) insurance requirement.

The core issue on appeal was whether the ORVA exemption for closed course competitions applied only if the competition was sponsored by a motorcycle association.

The Court of Appeal affirmed the Divisional Court's decision, holding that the ORVA exemption applies only to sponsored competitions.

Consequently, the dirt bike was not exempt and was considered an "automobile," entitling Beaudin to benefits.

The appeal was dismissed.

The plaintiff successfully moved for an order to compel production of records and permit questioning from a non-party assessment company and its retained doctor, overcoming a claim of litigation privilege.

This endorsement addresses the costs of that successful motion.

The court awarded the plaintiff partial indemnity costs in the amount of $16,877.92, finding the motion involved important and complex issues, and that the time spent by the plaintiff's counsel was reasonable and not excessive, despite the defendants' arguments regarding proportionality and necessity of certain steps.

The plaintiff sought an order to compel production of records from a non-party assessment company, HVE Healthcare Assessments, and its retained expert, Dr. Joel Finkelstein, and to permit questioning of HVE.

The plaintiff argued that litigation privilege should yield to the principle of fairness, citing a reasonable suspicion that HVE improperly influenced Dr. Finkelstein's report, particularly concerning the summarization of surveillance evidence and the delayed disclosure of a conflicting expert report.

The court found a factual foundation for this suspicion, noting inconsistencies and the defendants' refusal to answer questions regarding HVE's involvement.

The court ordered the defendants to produce all relevant records from HVE and Dr. Finkelstein, excluding solicitor-client privileged communications, as these were deemed foundational documents not protected by litigation privilege under the circumstances.

The defendants were also ordered to pay the plaintiff's costs.

In additional reasons following a summary judgment motion regarding a commercial lease dispute, the court determined the quantum of damages owed to the plaintiff landlord.

The court denied the plaintiff's motion to amend its pleadings to claim a higher pre-judgment interest rate, finding it would cause non-compensable prejudice as the request came after the summary judgment decision.

The court also reduced the plaintiff's claim for future rent after discovering the plaintiff had failed to disclose that the property was sold and demolished, terminating the rent obligation on the date a letter of intent for the sale was signed.

The plaintiff was awarded $199,136.01 in total damages for future rent and additional rent.

The plaintiff landlord brought a motion for summary judgment seeking a declaration of entitlement to $288,000 held in trust under a Termination Agreement and damages for unpaid rent.

The court found that the defendant tenant was entitled to the $288,000 held in trust, as it was consideration for giving up its rights to a long-term lease.

The court also found the tenant liable for arrears of Additional Rent and future rent following the termination of the lease for non-payment, but could not determine the quantum of damages on the current record, particularly given the recent demolition of the property.

The court ordered the funds to remain in trust pending a final determination of the set-off amount.