Peter Nicholson

The respondents brought a motion to strike a paragraph of the notice of appeal.

The appellants sought to raise a new argument on appeal that a six-year limitation period applied under the transition provisions of the Limitations Act, 2002, despite conceding a two-year limitation period before the motion judge.

The Court of Appeal allowed the motion and struck the paragraph, finding that permitting the new ground of appeal would cause prejudice to the moving party, who would have developed a different evidentiary record had the argument been raised below.

The appellants appealed a summary judgment decision dismissing their action as statute-barred.

The Court of Appeal upheld the motion judge's finding that the appellants knew or ought to have known the basis of their claim by April 11, 2005, at the latest.

As the action was not commenced until October 31, 2007, more than two years after the claim was discovered, the appeal was dismissed.

Following the dismissal of an action alleging misrepresentations relating to the establishment of a Mitsubishi dealership, the court determined the appropriate costs award.

The defendants sought partial indemnity costs exceeding $325,000 after successfully obtaining summary judgment dismissing the claim as statute-barred under the Limitations Act and lacking evidentiary merit.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and the principle of reasonableness, including access to justice concerns discussed in appellate authority.

While the defendants’ legal work was substantial and effective, certain disbursements and the overall magnitude of the claim were considered excessive.

The court therefore reduced the claimed amount and fixed costs at $150,000 inclusive of taxes and disbursements.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action for damages arising from an alleged franchise agreement and negligent misrepresentations regarding the viability of a Mitsubishi dealership.

The court found that the plaintiffs' action was statute-barred under the Limitations Act, 2002, as the plaintiff knew or ought to have known of the claim more than two years before commencing the action.

Furthermore, the court held that the alleged misrepresentations were forward-looking forecasts, which are not actionable, and that the entire agreement and release clauses in the dealer agreement provided a complete defence.

The action was dismissed, and the defendant's counterclaim for an unpaid debt was allowed.

The appellants appealed a decision granting priority to the respondent's equitable mortgage over their registered mortgage.

The Court of Appeal upheld the application judge's finding that the appellants had actual notice of the intended priority of the respondent's mortgage, meaning s. 93(3) of the Land Titles Act did not preclude the equitable mortgage from having priority.

The appeal was dismissed, with minor amendments to the formal order regarding subsequent encumbrancers and notice for power of sale.