Corporate/Commercial Law - OCA

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 appellant, Country Style Realty Limited, underwent CCAA restructuring.

It chose not to repudiate its commercial lease with the respondent landlord, Ivorylane Corporation.

Ivorylane had a pre-CCAA claim for rent arrears but did not receive notice of the claims process and did not file a proof of claim.

After Country Style emerged from CCAA protection, Ivorylane sued for the arrears.

Country Style argued the claim was barred by the CCAA Plan of Compromise.

The Court of Appeal upheld the motion judge's finding that because the lease was not repudiated, the arrears constituted an 'Unaffected Obligation' under the specific terms of the Plan and Sanction Order, and therefore the claim was not compromised or barred.

The Minister of Transportation appealed a final declaratory judgment interpreting a 60-day cure period provision in the Highway 407 Concession and Ground Lease Agreement.

The Court of Appeal held that the application judge lacked jurisdiction to grant a final declaration, as the agreement's comprehensive dispute resolution mechanism reserved such interpretations for an arbitrator.

However, the court found the application judge did have jurisdiction to grant an interim order preserving the parties' rights pending arbitration.

The appeal was allowed and the judgment set aside.

The appellants appealed an order striking their third party claim and counterclaim under Rule 21, except for a claim alleging tortious conduct to usurp corporate control.

The Court of Appeal allowed the appeal and restored the claims, including a claim for breach of an implied term of a Side Agreement, noting that on a Rule 21 motion, pleadings must be taken as true and the motion judge erred by relying on an absence of evidence.

The cross-appeal was dismissed.

The appellants appealed a trial judgment concerning a business sale transaction, a management consultant agreement, and a promissory note.

The Court of Appeal upheld the trial judge's findings that the sale was governed by the June 5, 2000 Agreement and that there was no actionable misrepresentation.

The court affirmed the $8,300 award under the management consultant agreement but varied the judgment to hold only the corporate appellant liable.

The court also varied the interest calculation on a $70,000 promissory note on consent.

The appeal was otherwise dismissed.

The appellant commercial tenant brought an application for declaratory relief under the Commercial Tenancies Act regarding responsibility for lease improvements.

The application judge dismissed the application, finding the appellant had repeatedly acknowledged responsibility for the improvements and executed promissory notes.

The Court of Appeal dismissed the appeal, holding that the application judge's findings were amply supported by the record.

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 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, CGU Insurance Company of Canada, appealed a judgment finding its policy to be a primary policy.

The Court of Appeal agreed with the lower court, refining the determination to classify the CGU policy as a primary policy with an excess coverage clause.

The court confirmed that a primary policy with excess coverage ranks ahead of a true umbrella policy, such as the Lombard policy.

The court also rejected arguments regarding standing and the appropriateness of proceeding by application.

The appeal was dismissed with a minor variation to the judgment's wording.

The appellants, who were self-represented at trial, appealed the trial judgment on the grounds that the trial judge failed to grant an adjournment to retain counsel and failed to warn them that evidence from the counsel table was inadmissible.

The Court of Appeal rejected both arguments, noting the appellants never requested an adjournment and the trial judge repeatedly warned them about giving evidence from the witness box.

The court also upheld the trial judge's findings regarding the payables for a group of bridal gowns and dismissed a motion to admit fresh evidence.

The appeal was dismissed with costs fixed at $2,500.

The appellants appealed a judgment finding that three corporate entities were essentially one, that a disclosure document was not provided to the respondents, and that the respondents did not damage or steal equipment from the premises.

The Court of Appeal dismissed the appeal, finding that the motion judge did not err in deciding the matter on the merits rather than ordering a trial, and that her factual conclusions were amply supported by the record.

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 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.

Following the release of the appeal judgment, the appellants requested clarification on the effect of the judgment on two aspects of the trial judge's order for interest.

The Court of Appeal clarified that interest on the respondents' share of Vicbir's RDTOH remains at 6% per annum from January 1, 2001.

The Court also clarified that interest on the share of sums payable to one of the respondents should be calculated on the net amount owing after deducting the sum she owed for reacquired shares.

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 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 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.

The appellant, Union Gas Limited, appealed an order made in CCAA proceedings regarding its right to set off amounts owed by the respondent, Algoma Steel Inc., against a rebate owed to the respondent.

The motions judge had denied legal set-off and limited equitable set-off to only one of two contracts.

The Court of Appeal upheld the decision on legal set-off but allowed the appeal regarding equitable set-off, finding a close connection between the contracts that made it manifestly unjust to enforce payment of the rebate without taking into account the full cross-claim.