Corporate/Commercial Law - OCA

The Ministry of Transportation and the Consulting Engineers of Ontario appealed a Divisional Court decision dismissing their application for judicial review of an Information and Privacy Commissioner order.

The Commissioner had ordered the disclosure of records containing the Ministry's evaluations and scores of consultants who submitted tenders for highway construction projects.

The appellants argued the records were exempt under sections 13, 17, and 18 of the Freedom of Information and Protection of Privacy Act.

The Court of Appeal applied a reasonableness standard of review and upheld the Commissioner's findings that the scores did not constitute 'advice or recommendations' under section 13, and that there was insufficient evidence to establish a reasonable expectation of harm under sections 17 and 18.

The appeals were dismissed.

The landlord of a retail shopping mall redesigned the development without notifying the franchisor or the franchisee, who had relied on the original site plan attached to their leases.

The franchisee suffered business losses due to the redesign and construction.

The trial judge found the landlord liable for negligent misrepresentation and the franchisor liable for innocent misrepresentation and breach of the duty of good faith, awarding the franchisee $400,000 in damages.

The Court of Appeal upheld the liability and damages findings, concluding that the site plan constituted a representation of the mall's layout.

However, the Court allowed the landlord's appeal regarding the franchisor's claim for contribution and indemnity, finding the franchisor was estopped by its contradictory litigation conduct.

The landlord applied for rectification of a commercial lease to include a clause from the offer to lease requiring the tenant to restore the premises to their original condition.

The application judge granted the application.

The tenant appealed.

The Court of Appeal allowed the appeal, finding that the application judge erred by making findings on disputed evidence and by finding that the offer to lease was a prior contract.

The Court held that the offer to lease was merely an agreement to agree, as it contained a clause rendering it void if a formal lease was not agreed upon.

Therefore, the landlord could not establish the elements of rectification.

The appellant appealed a trial judgment which found that an agreement between the parties was conditional on the respondents receiving funding from another project.

The Court of Appeal upheld the trial judge's finding that the release was not an acknowledgment of debt, but rather an agreement to pay a ceiling amount to limit liability if future funding was received.

The appeal was dismissed.

The appellants appealed a trial judgment finding them liable for extra-judicial efforts to shut down a restaurant and holding that they were not entitled to terminate the respondents' tenancy.

The appellants alleged bias on the part of the trial judge and substantive errors.

The Court of Appeal dismissed the appeal, finding that the threshold for bias was not met and the allegation was not raised at the earliest opportunity.

The court also upheld the trial judge's findings on the merits and confirmed the individual appellant's personal liability for tortious acts.

The insurer, Halifax, appealed an order to pay the insured's legal costs, and the insured, Innopex, cross-appealed a summary judgment declaring Halifax had no duty to defend it in a US trademark infringement lawsuit brought by Gucci.

The Court of Appeal allowed the cross-appeal, finding that the motion judge erred by relying on extrinsic evidence to determine the 'true facts' rather than relying on the pleadings.

The Court held that the Gucci complaint contained allegations that could potentially fall within the 'advertising liability' coverage and the 'title' exception to the trademark exclusion in the policy.

Halifax was ordered to defend the action, and the summary judgment dismissing Innopex's counterclaim for punitive damages was set aside.

The appellant appealed a motion judge's decision that its defence was not valid against the respondent's claim under a promissory note.

The Court of Appeal upheld the decision, confirming that the doctrine of equitable set-off does not apply to claims under bills of exchange or promissory notes.

The court also found that a stay under Rule 20.08 was unavailable because the appellant's other action was against a different party.

The appeal was dismissed.

The appellants appealed a partial summary judgment finding that they wrongfully terminated a commercial lease.

The Court of Appeal dismissed the appeal, agreeing with the motions judge that the respondent was not in arrears of rent but had a credit in its favour, and therefore the appellants were not entitled to terminate the lease.

The court also rejected the appellants' argument that the respondent engaged in wrongful conduct to mislead them.

The appellants appealed a trial judgment finding they breached fiduciary duties owed to the respondents regarding the financing of a joint venture to construct an apartment building.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellants violated their duty of full disclosure, were in a serious conflict of interest, and made secret profits on a mortgage they set up.

The court also upheld the trial judge's calculation of the amounts owing between the parties.

The appellant appealed a summary judgment dismissing its claim for damages arising from future sales of EPIPEN products in France.

The motion judge had concluded that a May 10, 1993 letter was merely an agreement to agree.

The Court of Appeal found the letter ambiguous, containing both language of a contract and language suggesting a future contract, and held that its proper characterization required trial evidence regarding the parties' history, industry practice, and subsequent conduct.

The respondents' cross-appeal on alternative grounds for summary judgment was dismissed as those issues also required resolving factual and credibility disputes.

The appeal was allowed and the matter remitted to trial.

The appellant appealed the dismissal of its third party action against a guarantor.

The trial judge found that the guarantee relied upon by the Registrar's Advisory Committee to approve a builder's registration application was forged, and therefore invalid and unenforceable against the respondent.

The Court of Appeal found no palpable and overriding error in the trial judge's findings and dismissed the appeal with costs.

The appellants appealed a trial judgment finding them liable for fraud, awarding damages and punitive damages, and granting an oppression remedy.

The appellants operated a petroleum supply business that became insolvent.

They continued to order gasoline from the respondent without intending to pay, using the proceeds to pay themselves and their lawyers.

The Court of Appeal upheld the finding of fraud and the compensatory damages of $539,658.41 for gasoline delivered after January 9, 1997.

However, the Court struck the oppression declaration, the $300,000 punitive damages award, and the order subordinating the appellants' secured claims, allowing the appeal in part.

The appellants appealed an order interpreting Articles 5 and 8.09 of a Companies' Creditors Arrangement Act plan of compromise.

The Court of Appeal dismissed the appeal, finding that the motion judge's interpretation was reasonable, fostered a fair and efficient administration of the plan, and was entitled to deference given his familiarity with the complex negotiating process.

A claim for rectification advanced for the first time on appeal was also dismissed for lack of an evidentiary basis.

The appellants appealed a trial judgment, arguing the trial judge made a palpable and overriding error by failing to reconcile the lack of documentary evidence supporting the respondent's claim for sweat equity.

The Court of Appeal dismissed the appeal, finding that the case turned on credibility and the trial judge was entitled to accept the respondent's evidence.

Applying the standard of review from Housen, the court found no palpable and overriding error in the trial judge's assessment.

TransCanada Pipelines Limited sued Potter Station Power Limited Partnership for damages to its compressor station caused by land subsidence, relying on an indemnity provision in their agreement.

Potter Power's insurer, Commonwealth Insurance Company, brought a summary judgment motion arguing the indemnity only covered third-party claims, not first-party losses.

The motion judge dismissed the motion, finding the indemnity language covered direct damages.

On appeal, Commonwealth argued the judge failed to apply contra proferentem and failed to find the indemnity ambiguous.

The Court of Appeal dismissed the appeal, holding that the indemnity was unambiguous and clearly extended to direct damages suffered by TransCanada, making contra proferentem inapplicable.

The landlord appealed a judgment declaring it had no right to terminate a commercial lease under a clause based on the tenant's gross revenue.

The application judge had granted the declaration on an application for relief from forfeiture, finding the landlord acted in bad faith and failed to prove the facts necessary to invoke the termination clause.

The Court of Appeal allowed the appeal and set aside the judgment, holding that relief from forfeiture is not available for a contractual right of termination that is not based on default or breach.

The Court further held that the tenant bore the burden of proving the landlord was not entitled to exercise the termination right, and that the absence of good faith does not preclude a commercial landlord from exercising its contractual rights.

The appellant appealed an order regarding liability for a claim based on delay.

The Court of Appeal agreed with the motion judge that the Agreement and the Bills of Lading had to be read together, requiring the appellant to give 60 days written notice of liability.

The appeal was dismissed.

The appellant sought to certify a class action against life insurance companies for allegedly deceptive sales of 'premium offset' or 'vanishing premium' policies.

The motions judge and Divisional Court refused certification, finding that the claims required individual assessments of the unique sales experiences and representations made to each policyholder.

The Court of Appeal dismissed the appeal, holding that the proposed common issues did not represent a substantial ingredient of each class member's claim and that a class proceeding was not the preferable procedure due to the overwhelming individual issues.

The appellant appealed a trial judgment regarding a real estate commission split, arguing the trial judge erred by admitting oral evidence that altered a written termination agreement.

The Court of Appeal dismissed the appeal, finding the oral evidence was admissible to complete the non-exhaustive agreement and to establish the appellant's misrepresentation regarding the properties he was working on.

The court also dismissed the appeal regarding an alleged award to a non-party and upheld the trial judge's discretionary costs award.

The appellant, who had been discharged from bankruptcy, was denied credit because the respondent credit reporting agencies allegedly included statute-barred debts in his credit report contrary to the Consumer Reporting Act.

The appellant brought a proposed class action in negligence.

The motion judge struck the claim, finding policy reasons against recognizing a duty of care.

The Court of Appeal allowed the appeal against the Canadian respondents, holding that a prima facie duty of care exists based on proximity and foreseeability, analogous to negligent misrepresentation, and that policy considerations do not make it plain and obvious that the claim should be struck at this stage.

The claims against the American parent companies were struck for failing to plead sufficient material facts.