Orlando M. Rosa

Following a successful application compelling arbitration and appointment of an arbitrator, the court determined the appropriate costs award.

The moving parties sought substantial indemnity costs relying on a Rule 49 offer to settle.

The court held the offer lacked a meaningful element of compromise and therefore did not justify substantial indemnity costs under Rule 49.10.

Considering the complexity of the proceeding, the parties’ conduct, and the time reasonably required, the court reduced counsel’s claimed hours and awarded costs on a partial indemnity basis.

During a jury trial for a slip and fall claim at a restaurant, the plaintiff moved to strike the jury notice and discharge the jury after the defendant called witnesses whose evidence had not been disclosed prior to trial.

The defendant also failed to produce relevant safety manuals in its affidavit of documents.

The court found that the defendant's ongoing failure to make full and timely disclosure created evidentiary complexities that would be difficult for a jury to properly weigh.

The court granted the motion, struck the jury notice, and ordered the trial to proceed by judge alone.

Following dismissal of a wrongful dismissal action after a four-and-a-half-day trial, the court determined the appropriate costs award.

The successful defendant sought partial indemnity costs exceeding $62,000, while the unsuccessful plaintiff argued that the amount should not exceed $40,000.

Applying the factors in Rule 57.01(1) of the Rules of Civil Procedure, including the principles of indemnity and the reasonable expectations of an unsuccessful party, the court reduced the amount claimed.

The court also permitted recovery of modest travel expenses for out-of-town counsel.

Costs were fixed at $50,000 inclusive of disbursements and tax.

The applicants sought leave to appeal a decision reversing a stay of proceedings.

The trial judge had stayed the proceedings for operating a public garage contrary to a municipal by-law, finding the prosecution was an abuse of process based on the by-law officer's evidence.

The appeal judge reversed the stay and ordered a new trial.

The Court of Appeal granted leave to appeal under s. 131 of the Provincial Offences Act, finding the case raised significant questions of law regarding the laying of charges by enforcement officers that met the public interest requirement.

An employee with 33 years of service brought a wrongful dismissal action after being laid off and subsequently refusing the employer’s offer to return to work.

The court accepted that the layoff constituted constructive dismissal and that the reasonable notice period would have been 24 months.

However, applying Evans v. Teamsters Local Union No. 31, the court held that a reasonable person would have accepted the employer’s prompt offer of reinstatement because the workplace would not have been hostile or humiliating.

The employee therefore failed to mitigate damages by refusing to return.

The claim for damages in lieu of notice and moral damages was dismissed.

A case conference addressed two related proceedings: a family law claim for spousal support and an estates dispute regarding the validity of wills and powers of attorney for an incapable individual.

The court ordered extensive financial disclosure from multiple parties who had managed or received funds belonging to the incapable individual, including bank statements, property disposition records, and expense breakdowns.

The court rejected the spouse’s position that she could retain and manage the incapable individual’s assets without disclosure, finding that her claim for spousal support created an adverse interest requiring transparency.

The court also ordered hospital records to be produced and directed that no interlocutory steps occur in the estates proceeding until a pre‑trial conference.

The moving parties (defendants) sought leave to appeal to the Divisional Court from an order dismissing their motion for summary judgment.

The underlying dispute involved the interpretation of an indemnity clause in an agreement of purchase and sale regarding environmental contamination discovered after closing.

The court found there was good reason to doubt the correctness of the motion judge's interpretation, satisfying the first branch of the test for leave to appeal under Rule 62.02(4)(b).

However, the court held that the interpretation of a specific agreement between specific parties did not raise issues of broad public importance.

As the second branch of the test was not met, the motion for leave to appeal was dismissed.

The appellants appealed the dismissal of their motion to stay proceedings based on a forum selection clause designating British Columbia for arbitration.

The Court of Appeal found that the motion judge erred by failing to apply the 'strong cause' test from Pompey v. Ecu-Line N.V. However, exercising its own discretion under s. 106 of the Courts of Justice Act, the Court dismissed the appeal.

The Court held that due to the appellants' two-year delay in bringing the motion and the significant steps already taken in the Ontario litigation, it would be unjust to require the respondent to start afresh in British Columbia.

The third party real estate agent appealed a trial judgment awarding the purchasers damages and costs arising from an aborted real estate transaction.

The purchasers had settled the main action with the vendor and proceeded against the agent for negligence and breach of fiduciary duty.

The Court of Appeal upheld the trial judge's findings on liability and mitigation, noting the purchasers were not obliged to close the transaction given the uncertainty of repair costs and their specific need for a move-in ready home.

However, the Court varied the costs award, recharacterizing the costs of defending the main action as damages and reducing the trial costs of the third party action.

The complainant filed an unfair labour practice complaint alleging the employer breached sections 50 and 67 of the Labour Relations Act by failing to hire him for a vacant position and by discussing the position directly with applicants.

The Board dismissed the allegations against the employer at the outset of the hearing.

The Board declined to entertain the section 50 complaint, deferring to the arbitration process since the allegations did not amount to a total repudiation of the collective agreement.

The Board also found that the employer's discussions with applicants did not constitute interference with the union's bargaining rights under section 67.

The hearing proceeded solely on the section 68 duty of fair representation complaint against the union.

The complainant filed a section 89 complaint alleging that the union breached its duty of fair representation under section 68 of the Labour Relations Act by failing to assist him when he was not selected for an equipment operator position.

The Board first considered whether the complainant, a temporary part-time labourer, was an employee in the bargaining unit.

Reviewing the collective agreement and the parties' past practice, the Board concluded that the complainant was not covered by the collective agreement and therefore the union owed him no duty under section 68.

The Board further noted that even if the complainant had status, the complaint would fail on the merits because the union's decision not to pursue the matter without further evidence of his qualifications was not arbitrary, discriminatory, or in bad faith.

The complaint was dismissed.

The appellant attempted to repossess his vehicles while armed with a rifle, which he loaded and pointed at the victim.

He was convicted of attempted armed robbery, using a firearm while attempting to commit an indictable offence, possession of a weapon, and pointing a firearm.

The trial judge stayed the possession charge but entered convictions on the others.

On appeal, the appellant argued the multiple convictions violated the common law Kienapple principle and sections 7 and 11(h) of the Charter.

The Supreme Court of Canada held that the Kienapple principle did not prevent convictions for both armed robbery and using a firearm, as the latter requires the additional element of 'use'.

The Court also found no breach of fundamental justice under the Charter.

However, the Court quashed the conviction for pointing a firearm, finding that it offended the Kienapple principle when combined with the conviction for using a firearm.