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 plaintiff, Wilderness North Air, was awarded a contract by Hydro One Remote Communities Inc. (Remotes) to be the primary vendor for the delivery of diesel fuel by air to five remote First Nations communities.

After the contract was awarded, several First Nations communities issued Band Council Resolutions (BCRs) stating they would only accept fuel delivered by Wasaya Airways, a First Nations-owned airline that had been unsuccessful in the bidding process.

Remotes subsequently cancelled Wilderness's purchase orders for four of the communities and awarded the work to Wasaya and another carrier.

Wilderness sued Remotes for breach of contract and breach of the duty of good faith, and sued Wasaya for inducing breach of contract.

The Superior Court of Justice found that Remotes breached the contract and its duty of good faith, and that Wasaya induced the breach.

Wilderness was awarded $2,718,988 in damages, with Wasaya jointly and severally liable for $856,458.

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 plaintiff, a distributor of lighting retrofit kits, sued the defendant local distribution company for over $20 million in damages after its business failed.

The plaintiff alleged that the defendant negligently delayed and suspended approvals for customer rebates under a provincial energy conservation program, raising unfounded safety concerns.

The court dismissed the action, finding that the defendant owed no duty of care to the plaintiff, as the rebate program was exclusively for the benefit of customers.

Furthermore, the court found that the defendant's safety concerns were legitimate, the processing times were not unreasonable, and the plaintiff's financial collapse was caused by internal disputes, loss of inventory, and withdrawal of bank financing rather than the defendant's actions.

Claims for breach of contract, tortious interference, and misfeasance in public office were also dismissed.

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 moving party, a resident of the Netherlands, brought a motion to stay or dismiss a third-party claim against him, set aside service, and require the action to be commenced in the Netherlands or Ireland.

The claim arose from a loan agreement governed by the laws of the Netherlands.

The court applied the Van Breda test and found no real and substantial connection between Ontario and the third-party claim, as the contract was made and performed outside Ontario and the moving party had no ties to the province.

The court also concluded that the Netherlands was the more appropriate forum and set aside the service ex juris under Rule 17.02.

The motion was granted and the third-party claim was dismissed.

The appellant landlord appealed an order granting the respondent tenant relief from forfeiture of a commercial sublease.

The appellant had issued notices of termination alleging the tenant permitted stolen hardwood flooring to be stored on the premises, constituting criminal activity.

The application judge found no admissible evidence of criminal activity by the tenant and granted relief from forfeiture for a minor breach regarding storage by a related company.

The Court of Appeal dismissed the appeal and a motion to admit fresh evidence, finding no palpable or overriding error in the application judge's assessment of the evidence.

The defendants brought a motion for leave to appeal to the Divisional Court from an order dismissing their motion to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiff.

The plaintiff, a second mortgagee, alleged a constructive trust and fraudulent conduct following a power of sale that resulted in a shortfall.

The court applied the strict test for leave to appeal under Rule 62.02(4) and found no conflicting decisions, no good reason to doubt the correctness of the motion judge's findings on triable issues or material non-disclosure, and no error in principle in the exercise of discretion to maintain the CPL.

The motion for leave to appeal was dismissed.

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.

The appellant condominium corporations sought a declaration that they owned a clubhouse within their development and that a mortgage granted by the respondent developer was void or subordinate to their interests.

The developer had retained legal title to the clubhouse, but the disclosure statements provided for its future conveyance to the appellants once the developer no longer owned any lands in the project.

The Court of Appeal dismissed the appeal, holding that the disclosure statements did not constitute an executory contract of purchase and sale.

Consequently, the appellants did not have an equitable interest in the clubhouse capable of registration under the Land Titles Act, and the developer was entitled to mortgage the property.

The applicant condominium corporations sought declarations of ownership, breach of trust, and oppression against the developer regarding a community clubhouse.

The developer had retained ownership of the clubhouse, subject to a mortgage, pending the sale of all remaining units and lands in the project, as set out in the disclosure statements.

The court dismissed the application, finding no trust relationship, no breach of the obligation to convey the clubhouse since the condition precedent had not been met, and no oppressive conduct by the developer in its management, mortgaging, or fee-charging for the clubhouse.

The appellants challenged the dismissal of their negligence claim arising from alleged tingle voltage in a barn said to have caused dairy herd production losses and the loss of a farm operation.

The Court of Appeal held that the trial judge erred in invoking the material contribution test, because the governing causation analysis was the but for test as explained in Clements, but found the error non-dispositive since causation failed even under the more lenient framework.

Deferring to the trial judge's detailed factual findings and assessment of competing expert evidence, the court upheld the conclusion that tingle voltage was not proved to be a contributing cause of the production issues on a balance of probabilities.

The appeal and cross-appeal were dismissed, with costs to the respondent.