Reeva M. Finkel

Two defendants appealed a trial judgment awarding substantial damages for breach of fuel-delivery contracts and for inducing breach.

The court upheld findings that Remote breached contract and good faith duties, that Wasaya induced the breach, and that mitigation findings were available on the record.

However, it held the trial judge erred by not applying the contractual limitation clause, reducing Remote’s liability to $50,000 while leaving Wasaya liable for $856,458.

The appellants, Olympia Trust Company and William Loucks, appealed a motion judge's order discharging a second mortgage on property owned by the respondents.

The respondents had borrowed funds from First Swiss Mortgage Corp., which assigned the mortgage to Olympia as bare trustee.

When the respondents refinanced and paid out the mortgage to First Swiss, the discharge was never registered and First Swiss misappropriated the funds.

The motion judge found that First Swiss was acting as Olympia's agent in receiving the payout and discharging the mortgage based on the terms of agreements between First Swiss and Loucks and the course of dealings between the parties.

The Court of Appeal upheld this finding, dismissing the appeal and awarding costs to the respondents.

The borrowers brought a motion within a receivership proceeding to discharge a mortgage on their residential property.

They had paid the mortgage in full to the mortgage broker, First Swiss, who had assigned the mortgage to Olympia Trust Company as a bare trustee for investors.

First Swiss misappropriated the funds and failed to remit them to Olympia.

The court found that First Swiss had actual and apparent authority to act as the agent for Olympia and the beneficial owner, Loucks.

The motion was granted, the mortgage was ordered discharged, and costs were awarded to the borrowers.

The appellant, Reset Electronics Inc., appealed the dismissal of its action against Hydro One Networks Inc. for alleged negligent misrepresentation and negligent performance of service.

Reset claimed Hydro One's delays in processing incentive payments for energy-efficient products caused its business failure.

The Court of Appeal for Ontario upheld the trial judge's findings that Hydro One owed no duty of care to Reset, did not breach any duty if one existed, and did not cause Reset's alleged losses.

The court affirmed that no undertaking inviting reasonable reliance was established between the parties, and Hydro One's actions were based on legitimate safety concerns.

The appeal was dismissed, and leave to appeal costs was refused.

This decision provides supplementary reasons following a motion for a certificate of pending litigation.

The court addresses an improper communication from the unsuccessful parties' counsel questioning the evidentiary basis of the prior decision, specifically regarding a mortgage on the subject property.

The court clarifies that direct communication with the court without prior consent or direction is a breach of Rule 1.09 of the Rules of Civil Procedure.

The court also confirms that the title abstract showing the mortgage was part of the evidentiary record and that its presence or absence does not alter the original assessment of equities or the decision.

The plaintiff, Katherine Lee, brought a motion seeking leave to issue a certificate of pending litigation (CPL) against a property, alleging a one-half beneficial interest that was fraudulently conveyed by her father, Yunchang Li, to himself and her elder sister, Yahong Li.

The court found that the plaintiff established a prima facie case of fraud, citing several "badges of fraud" including the transfer occurring without notice, nominal consideration, and a non-arm's length relationship.

The court also determined there was a high probability of success for the plaintiff's claim and that the equities favored granting the CPL, as damages would not be an adequate remedy.

The motion for CPL was granted, and costs were awarded to the plaintiff on a partial indemnity basis, with a reduction due to the plaintiff's procedural error in under-booking the initial motion hearing.

Hydro One Networks Inc. appealed a decision denying its claim for a permanent prescriptive easement over a road on the respondent's land, which provides access to its transmission lines.

The application judge had found Hydro One's use was not "as of right" or "continuous." The Court of Appeal found that the application judge misapprehended the evidence regarding the frequency and nature of Hydro One's use, which was sufficient to meet the "continuous" requirement.

The Court also determined that Hydro One's post-2008 interactions with the respondent, aimed at accommodation, did not negate the "as of right" character of its use established prior to the land's registration under the Land Titles Act in 2008.

The appeal was allowed, and the prescriptive easement was declared.

The applicant, Hydro One Networks Inc., sought a declaration of a permanent easement over a portion of the respondent's land to access its existing transmission line easement, based on claims of prescriptive easement or lost modern grant.

The respondent disputed the continuous use and asserted that Hydro One had sought permission.

The court dismissed the application, finding that Hydro One failed to prove its use was "as of right" due to evidence of seeking permission, and that its infrequent use (once a year at most) did not meet the "continuous" requirement for a prescriptive easement.

The moving parties, Thomas Patrick Farrell and The Midas Investment Corporation, appealed an order dismissing their action concerning the validity of two mortgages and sought a stay of the declaration of validity and enforcement of the mortgages pending the outcome of the appeal.

The court applied the three-part RJR-MacDonald test for stays pending appeal.

While a serious issue was found to exist (though barely), the court determined there would be no irreparable harm to the moving parties and that the balance of convenience did not favour granting a stay.

The motion for a stay was dismissed.

The Appellants (Niagara Radio Group Inc., Northguard Capital Corp., and Andrew Ferri) brought a motion for an extension of time to perfect a consolidated appeal.

They initially sought to set aside or vary a previous order, but acknowledged that a single judge of the Court of Appeal lacked jurisdiction to do so.

The delay in perfecting the appeal was attributed to difficulties in issuing and entering court orders.

The Respondents (Hydro One Networks Inc. and Scargall Owen-King LLP) did not oppose the motion.

The motion was granted, extending the deadline for perfecting the appeal.

The plaintiffs alleged that the defendant, an officer of their corporation, fraudulently and without authorization registered two mortgages against their properties.

They also sued the lawyer who registered the mortgages for negligence and the mortgagees for relying on the mortgages despite alleged red flags.

The court dismissed the action, finding that the officer had actual authority to bind the corporation under its by-laws, the plaintiff was aware of and benefited from the mortgages as part of a scheme to avoid foreign creditors, the lawyer met the standard of care, and the mortgagees were protected by the indoor management rule and the Land Titles Act.

The defendants sought leave to appeal to the Divisional Court from an order dismissing their motion to discharge a Certificate of Pending Litigation (CPL).

The court applied the two-part test for leave under Rule 62.02(4), requiring either a conflicting decision on a matter of principle or good reason to doubt the correctness of the order combined with matters of general importance.

The court found no conflicting decisions and no basis to doubt the correctness of the lower court's findings regarding the plaintiff's claim for a constructive trust, the right to trace funds, or the absence of material non-disclosure.

Furthermore, the court found no error in the exercise of discretion to maintain the CPL.

The application for leave to appeal was dismissed.

In a certified class action arising from a fire and explosion in an underground electrical vault at a residential complex, the defendant utility appealed a Master’s order compelling answers to refusals given during examinations for discovery.

The appeal concerned whether the defendant was required to disclose details of internal and expert investigations and to answer questions regarding its theory of causation.

The court held that the defendant failed to establish a factual basis for litigation privilege over investigative information and expert findings.

The court further held that under Rule 31.06(3) of the Rules of Civil Procedure, a party must disclose expert findings, opinions, and conclusions at discovery unless it undertakes not to call the expert at trial.

The Master’s order requiring answers to discovery questions and disclosure of investigative information was upheld.