Paul David McCutcheon

The Landlord sought leave to appeal an arbitration award concerning the rent reset for a 99-year ground lease, and alternatively, to set aside the award for excess of jurisdiction.

The arbitration tribunal had valued the "Demised Premises" at $63.3 million, while the Landlord argued for $95 million.

The court granted leave to appeal but dismissed the appeal, finding no error in the Majority's interpretation of the lease or its valuation mandate.

The court also dismissed the application to set aside the award, holding that the Landlord's arguments were an attempt to re-litigate the merits under the guise of a jurisdictional challenge.

The Vendor successfully moved for summary judgment, terminating an agreement of purchase and sale due to the Purchasers' failure to pay a deposit by the stipulated deadline.

The court found that a subsequent alleged verbal agreement to revive or amend the contract was invalid, citing "time is of the essence" and "all amendments in writing" clauses within the agreement, as well as the Statute of Frauds.

Relief from forfeiture of the $1,000,000 deposit was denied, as the deposit was not deemed disproportionate to the purchase price and no unconscionability was established.

The Purchasers' cross-motion for specific performance and motion for a certificate of pending litigation were dismissed.

The appellants appealed the dismissal of their action for damages arising from a municipal tendering process and termination of an agreement of purchase and sale.

The trial judge found that while the respondent Town breached its tendering process by accepting a non-compliant bid, the appellants failed to demonstrate they would have been awarded the contract.

The appellants did not meet their burden of proving on a balance of probabilities that the contract would have been awarded to them, as the trial judge found it more probable the Town would have re-tendered.

The Court of Appeal upheld the trial judge's decision, finding it was open to the Town to reject all bids and re-tender with different specifications.

The agreement of purchase and sale was also properly terminated in good faith for legitimate business reasons.

The plaintiffs sued the Town of Orangeville for breach of contract related to a biosolids disposal tender and an agreement of purchase and sale for a storage facility.

The court found the Town breached "Contract A" by accepting a non-compliant tender bid from a third party (Entec) but dismissed the plaintiffs' claim for lost profits (Contract B) because they failed to prove they would have been awarded the contract.

The court also found the Town validly exercised a termination clause in the Agreement of Purchase and Sale, dismissing the plaintiffs' claim for damages related to the property sale.

The Town's counterclaim for the return of the deposit was granted.

This decision addresses costs following the dismissal of the applicants' motion for an interlocutory injunction.

The respondents, including EACOM Timber Corporation, Northshore Forest Inc., Vermilion Forest Management Company Ltd., and two government Ministries, did not seek costs.

The applicants requested that no costs be ordered against them.

The court, noting the lack of costs requests from the respondents and the applicants' position, ordered that all parties bear their own costs for the interlocutory injunction motion.

The applicants sought an interlocutory injunction to halt logging, road building, and aerial spraying in the Benny area, asserting a lack of meaningful consultation and consent regarding their Aboriginal and Treaty rights.

The court applied the three-part test for an interlocutory injunction, finding that the Crown's duty to consult with the Atikameksheng Anishnawbek First Nation (AAFN) had been met through extensive engagement, which led to the approval of remedial measures by the AAFN Chief and Council.

The applicants failed to demonstrate a serious issue to be tried or irreparable harm, as their claims were general and the Crown's protective measures were deemed ample.

Furthermore, the balance of convenience favoured the respondents, given the significant economic impact and job losses that an injunction would cause.

The court also clarified that the duty to consult is owed to the collective Aboriginal group, not individual members, and rejected claims of additional hereditary clan leader reserves under the Robinson-Huron Treaty of 1850.

The motion for an interlocutory injunction was dismissed.

The plaintiff sought approximately $2.6 million in damages against a contractor and an acrylic sheet manufacturer arising from alleged defects in the design, manufacture, and installation of a skylight system for a horse riding arena.

The plaintiff alleged negligent design, negligent manufacture of acrylic sheets, negligent misrepresentation in product literature, and spoliation of evidence.

After a lengthy trial, the court found no negligence or breach of contract by the contractor and no negligence in the manufacture of the acrylic sheets by the manufacturer.

Although the manufacturer should have disclosed certain test results regarding light transmittance, the plaintiff failed to prove causation.

The court further held the plaintiff fundamentally breached the contract and was contributorily negligent by refusing to install an automatic controller and by failing to implement recommended ventilation and heating measures, and also failed to mitigate its losses.

At the commencement of a lengthy construction dispute trial, the defendants sought to set aside an earlier bifurcation order so that liability and damages could be tried together, while the plaintiff moved to strike the defendants’ jury notice.

The court exercised its inherent jurisdiction to manage the trial process and set aside the earlier order, finding that trying all issues together would avoid multiplicity of proceedings and that evidentiary overlap justified a single trial.

The court also held that the case involved exceptionally complex factual, technical, and legal issues, including numerous expert reports, extensive documentary evidence, multiple causes of action, crossclaims, and potential apportionment under a Pierringer agreement.

Given these complexities, the court concluded that justice would be better served by a judge-alone trial rather than a jury.

The jury notice was therefore struck and the matter ordered to proceed on all issues before a judge.

The successful defendant sought substantial indemnity costs following summary judgment motions and the dismissal of the plaintiffs’ claims, arguing the allegations were akin to accusations of fraud and were unsubstantiated.

The plaintiffs argued that substantial indemnity costs are reserved for rare and exceptional cases involving reprehensible litigation conduct.

The court held that although the defendant succeeded on the motions, the plaintiffs’ conduct was not reprehensible and their cross‑motion was not unreasonable.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court determined that partial indemnity costs were appropriate.

The defendant was awarded $150,000 in costs for the motions and the action.