Peter E. J. Wells

The applicants sought a declaration that the respondent breached a Letter Agreement and had no valid license to market and sell the applicants' fish-rearing technology.

The court found that neither party had breached the agreement, as time of the essence had been suspended and not properly reinstated.

The parties had mutually agreed to terminate the agreement, triggering the respondent's right to a refund or a license.

The court held that the respondent validly exercised its right to acquire the license, which was certain and enforceable.

The application was dismissed.

The applicant brought an application under Rule 14.05(3) seeking declarations concerning the ownership of patent applications related to a product developed under a Consulting Agreement.

The respondents brought a motion to stay the application, arguing that a different agreement with an Alberta forum selection clause applied, and that material facts were in dispute making the matter unsuitable for an application.

The court dismissed the motion to stay, finding it premature to determine whether the issues were suitable for an application or if the forum clause applied before the application record was complete, allowing the motion to be renewed at the hearing of the application.

This is a costs endorsement following a successful appeal by the City of Burlington against Burlington Airpark Inc. The parties agreed to fix the costs of the appeal at $40,000 inclusive of disbursements and taxes.

However, they disagreed on the costs of the underlying application.

The respondent Airpark sought partial indemnity costs of $149,917.90, while the application judge had awarded the successful City substantial indemnity costs of $118,327.53.

The Court of Appeal determined that while Airpark was entitled to costs of the application despite adverse findings, an award of partial indemnity costs 25% higher than the substantial indemnity costs incurred by the successful applicant was unreasonable.

The Court fixed Airpark's costs at $80,000 inclusive of disbursements and taxes.

An aerodrome operator appealed an order requiring it to file a permit application under a new municipal by-law for fill and site alteration work performed before the by-law was enacted.

The court considered whether the by-law could be applied retroactively to work completed under a prior regulatory regime.

The appeal was allowed on the basis that the by-law had no retroactive effect and could not be applied to work performed before its enactment.

The applicant sought a declaration that the respondent breached their software distribution agreement by developing and marketing a competing radio scheduling product prior to the end of the agreement's winding-up period.

The applicant also sought a springboard injunction.

The court interpreted the agreement and found that it did not prohibit the respondent from developing its own product for the US market or marketing a competitive product during the notice or winding-up periods.

The court also found no breach of the duty of honest performance by the applicant, but ultimately dismissed the application as the respondent had not breached the agreement.

The defendants, Lubrizol Advanced Materials Canada, Inc. and Lubrizol Advanced Materials, Inc. (LZAM), sought leave to appeal a decision dismissing their motion for partial summary judgment.

The original motion concerned IPEX's claim to recover settlement funds paid in class actions related to defective Kitec Pipe, alleging breach of contract and contribution/indemnity from LZAM for supplying defective resin.

The court dismissed LZAM's motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the motions judge's decision, and no issues of public importance.

The plaintiff, IPEX Inc., settled numerous class actions related to its defective Kitec Pipe.

IPEX then sued its resin suppliers, AT Plastics Inc. and Lubrizol Advanced Materials Inc., for breach of contract and indemnity, seeking to recover the settlement amount.

The defendant suppliers brought motions for partial summary judgment, arguing that IPEX could not prove causation without individual claims data.

The court dismissed the defendants' motions, finding that IPEX could plausibly establish causation for its breach of contract claim without individual data, and that the tort claim should proceed to trial alongside the contract claim to avoid bifurcation and inconsistent findings.

The court also found that the reasonableness of the settlement and the assignment argument were not suitable for summary judgment.

The plaintiff brought a motion seeking to preclude the defendants from advancing certain grounds in a second summary judgment motion that largely repeated arguments previously rejected by another motions judge.

The defendants argued that a renewed motion was justified in light of the Supreme Court of Canada’s clarification of the summary judgment framework in Hryniak v. Mauldin.

The court held that Hryniak applies retroactively and does not permit parties to reopen prior summary judgment determinations where appeal routes have been exhausted.

The court also found that issue estoppel and abuse of process barred relitigation of the same issues, particularly where the alleged “new” evidence had been available at the time of the first motion.

The plaintiff’s motion was granted, limiting the scope of the defendants’ pending motion for summary judgment.

The appellant, an aerodrome operator, appealed a decision declaring that a municipal fill by-law applied to its landfill activities.

The appellant argued the by-law was inapplicable under the doctrine of interjurisdictional immunity because aerodromes fall under federal jurisdiction.

The Court of Appeal dismissed the appeal, upholding the application judge's finding that the by-law regulates the quality of fill for environmental protection and does not impermissibly trench on the core of the federal aeronautics power.

The applicant mining company brought an application concerning mining royalty interests subject to contractual rights of first refusal.

After the respondent corporation dissolved and distributed its royalty interests to its principal shareholder, the applicant alleged that the transfer triggered the contractual rights of first refusal contained in two agreements governing mining royalties.

The court held that the dissolution and distribution of assets constituted a “transfer,” “grant,” or other disposition within the meaning of the agreements.

The respondent’s argument that the rights were only triggered by receipt of a bona fide third‑party purchase offer was rejected.

The court declared that the rights of first refusal were breached and granted declaratory and injunctive relief preventing enforcement of the royalty obligations.

A commercial dispute between competing importers of Caribbean food products involved allegations of defamation, statutory unfair competition under s. 7 of the Trade-marks Act, depreciation of goodwill under s. 22, and unlawful interference with economic relations.

The plaintiffs alleged that the defendants made false statements to a supplier accusing the plaintiffs of importing and selling infringing competing products, which were subsequently relayed to the supplier in a written report.

The court held that the oral statements were statute‑barred as slander but that the written republication constituted actionable libel.

Although qualified privilege initially applied, the court found the defendant acted with malice and intentional dishonesty, defeating the defence.

The plaintiffs failed to prove economic loss or that the statements caused termination of their distributorship, but general damages were presumed for libel and awarded to one plaintiff.

Two competing applications concerned whether a municipal site alteration by-law regulating the dumping of fill applied to an aerodrome.

The municipality sought declarations that its by-law requiring a permit and environmental safeguards for fill operations applied to the airport’s grading activities, while the airport operator argued that such regulation intruded on exclusive federal jurisdiction over aeronautics.

Applying the constitutional doctrines governing division of powers and interjurisdictional immunity, the court held that the by-law’s pith and substance concerned environmental protection and land use regulation, matters within provincial jurisdiction.

The by-law did not impair the protected core of federal aeronautics power because it regulated only the quality and management of fill, not the design or operation of runways or airport facilities.

The municipal application was granted and the airport operator’s application was dismissed.

The defendants sought leave to appeal a decision dismissing their motion for summary judgment in an action regarding the supply of defective pipes.

The defendants argued the motion judge erred in interpreting supply agreements, limitation periods, and the effect of settlement conduct.

The Divisional Court dismissed the motion for leave, finding that the issues were particular to the parties, did not raise conflicting decisions on matters of principle, and did not involve matters of broad public importance.

Following the dismissal of the defendants’ motion for summary judgment, the court determined the appropriate costs payable to the successful plaintiff.

The defendants had succeeded on one of four principal issues, resulting in partial success that justified a reduction in the plaintiff’s recoverable costs.

The court considered the proportional success of the parties and the relative time and resources expended by counsel.

Applying reductions for both partial success and excessive docketed time, the court fixed costs at a fair and reasonable amount under Rule 57.01.

The defendants brought a summary judgment motion seeking dismissal of a commercial action alleging defective raw materials supplied for thermoplastic piping systems.

They argued the claims under an earlier supply agreement were barred by the Limitations Act and that liability disclaimers in later agreements excluded all contractual and tort liability.

The court held the limitation period for the indemnity claim had not expired because the claim arose only after the plaintiff was served with underlying litigation relating to the alleged defects.

While the contractual disclaimers were sufficient to exclude liability for negligence, they did not clearly exclude the statutorily implied condition of fitness for purpose under the Sale of Goods Act.

The court also found that alleged post‑contractual conduct potentially modifying the agreements raised a genuine issue requiring a trial.

Summary judgment was therefore refused and the action allowed to proceed.

The appellant appealed a trial judgment granting declaratory relief that limited the respondent's obligation to indemnify the appellant for royalties payable under a net smelter return royalty agreement.

The trial judge found the indemnification obligation was limited to a flat rate of 0.013% NSR, as indicated in the schedules to the purchase agreements, rather than the sliding scale royalty actually required by the underlying agreement.

The Court of Appeal dismissed the appeal, upholding the trial judge's conclusion that the specific references to the 0.013% NSR rate reflected the parties' intention and overrode general references to assuming all obligations.

The appellants, including the Minister of Agriculture of Guyana and a state-owned company, appealed the dismissal of their motion to dismiss a defamation claim on the grounds of state immunity.

The motion judge found that the Minister's statements, made in the context of an ongoing trademark dispute, fell within the commercial activity exception under s. 5 of the State Immunity Act.

The Court of Appeal upheld the decision, applying the contextual approach from Kuwait Airways Corp. v. Iraq, and concluded that the statements promoted Guyana's brand and disparaged a competitor, thus constituting commercial activity.

The appellant appealed a motion judge's decision granting partial summary judgment to the respondents on the issue of product ownership.

The Court of Appeal upheld the finding that there was no triable issue regarding the appellant's ownership of the product, noting the appellant's pleadings and a 1996 licensing agreement were inconsistent with ownership.

However, the Court allowed the appeal in part, striking the declaration that the respondent owned the product because the respondent had not filed a counter-claim.

The defendants sought leave to appeal a decision dismissing their Rule 21 motion to strike the plaintiff's amended statement of claim.

The defendants argued that the plaintiff was not entitled to seek declaratory relief under Canadian or American law.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the motions judge's decision.

The court noted that issues regarding the applicability of US law to a cross-border declaration could be litigated later in a motion for summary judgment.

The appellants, a 14-year-old Jehovah's Witness and her parents, fled British Columbia to Ontario to avoid a court order authorizing blood transfusions without consent.

The BC Director obtained an ex parte interim custody order in BC and successfully enforced it in Ontario, resulting in the child's return to BC.

Although the underlying medical dispute was subsequently resolved and the BC orders vacated, the appellants appealed the Ontario enforcement orders.

The Court of Appeal held the appeal was moot but exercised its discretion to hear the procedural issues.

The Court allowed the appeal, finding the Ontario courts erred in enforcing the BC ex parte custody order under s. 41(1) of the Children's Law Reform Act because the appellants were denied an opportunity to be heard, and the motion judge erred in refusing to hear viva voce evidence.