P. John Brunner

A non-party lawyer appealed an order requiring him to attend for examination as a witness in a motion pending before the Superior Court of Justice.

The lawyer was counsel of record for the City of Windsor.

The Court of Appeal upheld the lower court's decision, finding that the case management judge had properly applied the stringent test for ordering opposing counsel to be examined and had made no error warranting appellate intervention.

Following a successful summary judgment motion dismissing a third party claim and the consequential dismissal of a fourth party claim, the court addressed costs.

The third party sought costs from the defendant and indemnification for any costs owing to the fourth party.

The court held that the plaintiff’s limited involvement did not justify awarding or requiring costs at this stage and deferred any cost consequences between the plaintiff and defendant to the trial of the main action.

However, the court determined that the third and fourth parties should not wait until the conclusion of the main action to recover their costs.

The defendant was ordered to pay the third and fourth parties’ costs on a partial indemnity basis, with amounts fixed by the court for fairness and proportionality.

A third party engineering consultant brought a motion for summary judgment dismissing a contribution and indemnity claim brought by the defendant in a construction dispute.

The plaintiff contractor alleged extra costs after encountering subsurface conditions different from those described in a geotechnical evaluation prepared by the third party.

The court held that contribution and indemnity under the Negligence Act requires that the third party be directly liable to the plaintiff.

Given the plaintiff’s admissions that it did not challenge the third party’s bore hole testing or interpretation and had no information about offshore subsurface conditions, no cause of action existed against the third party.

The third party claim and the related fourth party claim were dismissed.

The court issued an addendum correcting a numerical error in an earlier endorsement concerning damages.

The original endorsement referenced an amount of $80,000 in paragraph 42.

The court clarified that the correct amount was $90,000 and amended the decision accordingly.

The addendum forms part of the reasons and corrects the earlier judgment.

The defendants moved for summary judgment dismissing a claim arising from an alleged oral land development partnership.

The plaintiff alleged breaches of fiduciary duty and sought rescission and return of capital contributions after withdrawing from the partnership before completion of the project.

The court held that the motion could not be determined on summary judgment because the key issues—including alleged misrepresentations, disclosure obligations between partners, the terms of the plaintiff’s withdrawal, and limitation issues—turned largely on credibility and disputed factual narratives.

Applying the “full appreciation” test for summary judgment, the court concluded that the evidence required the trial process.

The motion was dismissed and the matter directed to trial.

The defendant moved to stay an Ontario action pending the outcome of a related proceeding commenced in Kentucky.

The plaintiff sought declaratory relief concerning its proprietary interest in an internet domain name within Ontario.

The court found the action had a real and substantial connection to Ontario, as the plaintiff’s operations, witnesses, and relevant activities were located in Ontario and Ontario law would likely govern the dispute.

The court concluded that the defendant failed to establish that the balance of convenience favoured the Kentucky proceeding.

The motion to stay the Ontario action was dismissed.