Paul J. Pape

The appellant appealed a trial decision ordering specific performance of an oral agreement to sell land to the respondent for $4.1 million.

The appellant argued the oral agreement was unenforceable under s. 4 of the Statute of Frauds, contending the detrimental reliance aspect of the doctrine of part performance was not met because the respondent's only obligation was to pay the purchase price, which was tendered but refused.

The Court of Appeal dismissed the appeal, finding the trial judge did not err in concluding the respondent irremediably carried out its obligations to its detriment by taking all necessary steps to close the transaction while the appellant stood by.

The Penfound Parties moved to lift a permanent stay of their claims and counterclaims, which had been imposed after they improperly accessed the Sprott Parties' privileged documents.

They sought the appointment of a litigation receiver and manager, arguing this constituted a material change in circumstances that would detoxify the litigation.

The court dismissed the motion, finding that the proposed remedy was not a new circumstance but an argument that could have been raised during the original stay motion.

The court held that issue estoppel precluded relitigating the appropriate remedy, and regardless, a receiver could not effectively cure the prejudice caused by the moving parties' knowledge of privileged information.

The successful plaintiff, Mettko Construction Ltd., sought substantial indemnity costs after being awarded damages at trial.

The defendant, Hauser Realty Corp., argued for partial indemnity, asserting that Mettko's Rule 49 offer to settle was implicitly withdrawn by subsequent settlement negotiations and that the quantum sought was unreasonable.

The court found that Mettko's Rule 49 offer was indeed withdrawn by implication due to later offers.

While acknowledging Mettko's success and the importance of the issues, the court also considered factors such as the evolving nature of Mettko's case theory and multiple changes in counsel, which contributed to increased costs.

The court ultimately awarded Mettko $225,000 in all-inclusive costs, deeming it a reasonable and proportionate amount for the unsuccessful party to pay, rather than the $456,609.81 sought.

The respondent, Sara Baker, suffered a stroke and was denied long-term disability benefits by the appellant, Blue Cross Life Insurance Company of Canada.

A jury at trial found in favour of Baker, awarding retroactive benefits, aggravated damages, and $1.5 million in punitive damages, along with full indemnity costs.

Blue Cross appealed the punitive damages award and sought leave to appeal the costs award.

The Court of Appeal dismissed the appeal of the punitive damages, finding ample evidence of Blue Cross's reckless indifference or deliberate strategy to deny benefits, and that the quantum was rationally connected to deterrence.

The Court granted leave to appeal costs but ultimately dismissed the costs appeal, upholding the full indemnity costs based on Blue Cross's misconduct and the respondent's settlement offer, correcting the trial judge's reasoning for the costs award.

The plaintiff construction management company sued the defendant property owner for wrongful termination of a pre-construction and construction services contract.

The defendant argued the termination was justified because the plaintiff repudiated the contract by failing to perform core duties, meet the target budget, and meet the completion date.

The court found that the plaintiff continued to perform its duties, the budget and timeline delays were caused by design and permitting issues outside the plaintiff's control, and the plaintiff did not repudiate the contract.

The court held the defendant terminated the contract without justification and awarded the plaintiff $281,345.52 in damages for lost profits and outstanding invoices, subject to the contractual interest rate.

The defendant brought a motion for leave to appeal the order of Healey J. dated August 9, 2022.

The Divisional Court dismissed the motion and ordered the moving party to pay costs of $5,000 all-inclusive to the responding party within 30 days.

The appellant, a landlord, appealed a trial judgment that found it liable for conversion of chattels belonging to its former tenant's chattel mortgagee (the respondent).

The trial judge awarded compensatory damages based on the chattels' market value and punitive damages.

The appellant argued the compensatory damages should have been limited to the outstanding chattel mortgage balance, claiming an ownership interest in the abandoned chattels, and that punitive damages were unwarranted or excessive.

The Court of Appeal dismissed the appeal, finding the appellant's ownership argument was a new theory not raised at trial and was contradicted by evidence.

The court affirmed that market value was the appropriate measure of damages for conversion and upheld the punitive damages award as a rational response to the appellant's high-handed conduct.

This is an appeal from a medical negligence judgment.

The appellants, two doctors, challenged the trial judge's findings on standard of care and causation after Ms. Stevenhaagen suffered severe neurological injuries following an angioplasty procedure and subsequent aortic rupture.

The trial judge found the doctors liable for failing to consult a cardiovascular surgeon promptly and for transferring the patient to the Coronary Care Unit instead of directly to the operating room after temporary stabilization.

The Court of Appeal dismissed the appeal, upholding the trial judge's conclusions that the standard of care was breached and that this breach caused Ms. Stevenhaagen's injuries, applying the 'but for' test for causation.

The appellants appealed a summary judgment that held them liable under a guarantee to The Toronto-Dominion Bank.

The central issue was whether an email sent by one of the appellants constituted clear and unequivocal notice to terminate their liability under the guarantee.

The Court of Appeal found that the email, which sought confirmation of no obligation, did provide such notice.

The court distinguished the facts from a prior Supreme Court of Canada decision, noting that the bank had no doubt about the appellants' intent to terminate and did not take actions indicating a continuing relationship after the notice.

The appeal was allowed, reversing the summary judgment against the appellants.

This appeal concerned the interpretation of a force majeure clause in commercial leases between school boards and a multi-purpose sporting facility.

Due to province-wide COVID-19 lockdowns, the facility was unable to open, and the school boards sought rent abatement under the force majeure clause.

The application judge found the clause applied and rent was abated.

The appellant (landlord) argued that the clause required the landlord to explicitly "claim" a force majeure event for rent abatement to occur, which they had not done.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation.

The court affirmed that the landlord's objective inability to provide the leased premises due to the lockdown triggered the rent abatement, regardless of an explicit claim by the landlord.

The Court of Appeal for Ontario issued a costs endorsement following its decision to allow the appeal brought by Factory Mutual Insurance Company (FM Global) against MDS Inc. and MDS (Canada) Inc. The original appeal concerned insurance coverage for losses from an unplanned reactor shutdown, where the Court found no coverage.

This endorsement addresses the quantum of trial costs to be awarded to FM Global, which was entirely successful on appeal.

The court considered factors under s. 131(1) of the Courts of Justice Act and r. 57.01(1) of the Rules of Civil Procedure, including the complexity of issues, counsel rates, and the recoverability of expert disbursements.

The parties entered into minutes of settlement to resolve a business dispute.

The settlement required the respondent to produce business records to an accountant, who had to be satisfied with the production before the appellant advanced settlement funds.

The appellant refused to advance funds, arguing the accountant was not satisfied with the sufficiency of the records.

The motion judge granted summary judgment enforcing the settlement.

The Court of Appeal dismissed the appeal, finding the record amply supported the motion judge's conclusion that the accountant was satisfied with the production.

This is an appeal from a common issues trial judgment in a class proceeding.

The class, comprising former boarding students of Grenville Christian College, alleged systemic negligence and breach of fiduciary duties due to abusive practices including corporal punishment and public humiliation.

The trial judge found class-wide breaches and awarded punitive damages.

The appellants sought to set aside the judgment, arguing errors in the trial judge's use of expert evidence and treatment of defence evidence.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings of systemic negligence and breach of fiduciary duty, and that punitive damages were warranted, concluding that the trial judge's assessment of evidence and application of legal principles were sound.

The plaintiffs appealed case conference orders directing that the defendants' liability be determined by summary judgment motions involving viva voce cross-examination of five expert witnesses.

The Divisional Court held that while a case conference judge has jurisdiction to make orders involving powers under Rule 20.04, such jurisdiction should be exercised sparingly.

The court found the case conference judge erred in principle by making the orders without an evidentiary record and by inverting the proper analysis.

The appeal was allowed, the orders were set aside, and the liability case against the Eaton Centre defendants was directed to proceed to trial.

The appellants (owners) appealed a trial judgment awarding the respondent (contractor) damages and a construction lien for unpaid work and lost profits under a fixed-price residential construction contract.

The owners had terminated the contract mid-construction, alleging fundamental breach due to unilateral design changes and delays.

The trial judge found the owners were responsible for design flaws, the contractor's changes were necessary and approved, and there was no fundamental breach justifying termination.

On appeal, the Divisional Court upheld the trial judge's findings, concluding there was no palpable and overriding error in the assessment of fundamental breach, the valuation of the work completed, or the award for lost profits.

The court also rejected the owners' argument that the trial judge's negative credibility findings against them demonstrated a reasonable apprehension of bias.

This appeal concerned an all-risk insurance policy's coverage for business interruption losses suffered by the insured due to an unplanned shutdown of a nuclear reactor caused by corrosion.

The Court of Appeal reversed the trial judge's decision, holding that the term "corrosion" in the exclusion clause was unambiguous and applied to all forms of corrosion, including unanticipated corrosion.

Furthermore, the exception to the exclusion for "physical damage" did not extend to economic losses such as loss of use, as "physical damage" refers to tangible alteration of property.

The appeal was allowed, and coverage was denied.

The defendants brought a motion for leave to appeal a costs order and an interest award.

The Divisional Court dismissed the motion for leave to appeal the costs order, awarding costs of $5,000 to the plaintiff.

The court noted that leave is not required to appeal the interest award, which may be addressed at the hearing of the appeal from the trial judgment.

The plaintiffs brought motions for leave to appeal the October 9, 2020 and November 6, 2020 orders of the motion judge.

The Divisional Court granted the motions for leave to appeal and fixed costs of the motions at $10,000, payable at the discretion of the panel hearing the appeal.

The appellant appealed an order declaring a 2015 settlement agreement to be a binding separation agreement.

The appellant argued for the first time on appeal that a provision requiring expert review of the agreement's impact on their disabled child's ODSP eligibility created an implied right to terminate the agreement, and that the court should have exercised its discretion not to enforce it.

The Court of Appeal dismissed the appeal, declining to entertain novel arguments not raised before the motion judge and finding no basis to interfere with the enforcement of the agreement.

In a class action where core negligence claims were dismissed on appeal and the remaining "knowing assistance" claim was conceded as having no prospect of success, the action was formally dismissed.

The defendant auditor sought $485,000 in costs for defending the action.

The Law Foundation of Ontario (LFO), which funded the plaintiff through the Class Proceeding Fund, resisted this amount, arguing that previous costs awards covered the merits.

The court found the defendant was entitled to costs for the "knowing assistance" claim but deemed the requested amount excessive.

Applying a 40% discount to the plaintiff's estimated actual costs for this component, the court awarded $68,000 for the action and an additional $4,000 for the costs motion, totaling $72,000, payable by the LFO/CPF to the defendant.