Robert G. Zochodne

A personal injury action arising from a fall sustained by the plaintiff while hunting in a deer blind on the defendants' rural property.

The plaintiff initially pleaded that the defendant Todd Drain was an occupier under the Occupiers' Liability Act but withdrew this allegation on the first day of trial.

The court determined that the withdrawal of the occupier allegation eliminated most claims against Todd Drain, leaving only a claim based on alleged misfeasance—specifically, that Todd Drain removed an artificial turf carpet from the deer blind floor, causing it to become wet and slippery.

The jury found that the artificial turf was present on the date of the accident, thereby dismissing the action against Todd Drain.

The decision addresses the interplay between the Occupiers' Liability Act and common law negligence, the proper formulation of jury questions, and the consequences of withdrawing pleadings mid-trial.

The plaintiffs brought a motion to amend their Statement of Claim to allege that the defendant Todd Drain was an occupier within the definition of the Occupiers Liability Act.

The original claim, issued in 2018, was based on negligence arising from an incident on November 4, 2016, where the plaintiff was injured falling from a deer blind on property owned by the defendants' parents.

The defendant Todd Drain opposed the amendment, arguing it constituted a new cause of action barred by the Limitations Act.

The court granted the motion, finding that the amendment relied on facts substantially pleaded in the original claim and represented merely an alternative legal route to establish liability rather than a new cause of action.

The Plaintiffs brought a motion for summary judgment seeking damages from the Defendants for breach of an Agreement of Purchase and Sale (APS) for a property.

The property was subsequently sold to the Defendants under a July 7, 2022 Extension Agreement.

The central issue was the interpretation of a clause in the Extension Agreement that reserved the Plaintiffs' right to sue for damages for "failure to close on the scheduled closing date." The Plaintiffs argued this referred to the original APS closing date, while the Defendants contended it referred to the extended closing date.

The court, applying principles of contractual interpretation, found that the "scheduled closing date" referred to the extended closing date, meaning the Defendants were released from liability for the original breach if they closed on the extended date.

The Plaintiffs' motion for summary judgment was dismissed, and summary judgment was granted in favour of the Defendants.

The plaintiff, David Westlake, sought leave to amend his statement of claim to add a new cause of action related to alleged deficiencies in the construction of a roadway, beyond the initial claim concerning a cul-de-sac.

The defendants opposed the amendment, arguing the limitation period had expired and that they would suffer non-compensable prejudice.

The court found that the plaintiff's claim was reasonably discovered in January 2019, when a geotechnical report revealed the extent of the roadway damage, and that the delay in seeking amendment was not exceptional.

The court also found no actual non-compensable prejudice to the defendants, including due to the death of a key individual for one defendant, as the roadbed remained available for inspection and no procedural steps had been taken.

The motion for leave to amend was granted, without prejudice to the defendants' ability to raise a limitation defence at trial.

The applicant, Franklin Konopaski, sought remedies under sections 207 (winding up) and 248 (oppression) of the Business Corporations Act against his son, Michael Konopaski, and their jointly owned corporations, following an irrevocable breakdown in their business and personal relationship.

The court found that the required trust and confidence between the business partners no longer existed.

The appropriate remedy was an order for Michael to purchase Franklin's interest in their joint enterprise at fair market value, and an equalization of commissions from their investment business for the period of September 2014 to June 2016.

The court determined the valuation date to be June 30, 2016, and rejected the inclusion of Michael's solely owned professional corporations in the joint enterprise valuation, as well as the continued sharing of Michael's CFO salary.

The plaintiff brought a motion seeking a declaration that email communications between counsel constituted a binding settlement agreement resolving a dispute over a $300,000 advance.

The defendants argued the communications reflected only a framework for a potential agreement and that essential terms, including security requiring bank consent, remained unresolved.

Applying the principles governing contract formation and settlement agreements, the court held that the language used in the emails and the need for third‑party consent indicated no final agreement had been reached.

The court also relied on the parties’ subsequent conduct, including continued pleadings, as evidence that neither side considered themselves bound.

Following a negligence trial in which the plaintiffs recovered damages against a municipality for a landslide caused by a defective municipal storm sewer pipe, the court was asked to fix costs and prejudgment interest.

The plaintiffs sought substantial recovery of legal fees and disbursements, including expert expenses, and relied on an offer to settle that triggered substantial indemnity costs after the offer date.

The court reviewed the time-based calculations but emphasized that costs must ultimately be fair and reasonable under Rule 57.01 rather than a mechanical multiplication of hours and rates.

After adjusting hourly rates, reducing certain claims, and lowering expert fees considered excessive, the court fixed fees and disbursements and awarded prejudgment interest for limited periods due to delays attributable to the plaintiffs.

Following a trial judgment awarding the plaintiffs damages and dismissing the defendant’s counterclaim, the court addressed the plaintiffs’ request for costs.

The plaintiffs had served a Rule 49 offer to settle that was more favourable than the judgment ultimately obtained.

Applying Rule 49.10(1) of the Rules of Civil Procedure, the court held the plaintiffs were entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

In determining quantum under Rule 57.01, the court considered proportionality, the defendant’s large and largely unsuccessful counterclaim, the conduct of the litigation, and the reasonableness of counsel’s rates and disbursements.

The court reduced the requested costs and fixed a total award payable by the defendant.

The plaintiffs sued the defendant municipality for damages to their property caused by a slope failure.

The plaintiffs alleged that the municipality negligently installed and maintained a storm sewer on an easement crossing their land, which leaked and caused the slope to slide.

The municipality denied liability, arguing it had never formally assumed the subdivision and that the slide was caused by other factors.

The court found that the municipality had assumed responsibility for the sewer through its actions.

After hearing extensive expert evidence, the court concluded that the slope failure was caused by a break in the sewer pipe that allowed water to escape under pressure, weakening the soil.

The court held the municipality negligent for failing to properly investigate and remedy the issue after being notified of subsidence in 2001.

The court awarded the plaintiffs $232,500 in damages, representing the agreed diminution in the property's value.

The plaintiff contractor sued the defendant owner for approximately $17,000 in unpaid services related to a house renovation project.

The defendant counterclaimed for approximately $90,000, alleging overcharging, incomplete work, and defective construction, including a deviation from the cathedral ceiling design.

The court found that the plaintiff had completed over 90% of the contracted work and was entitled to payment for work performed and agreed extras.

The court rejected the defendant's claim of fundamental breach, finding the ceiling deviation immaterial, but awarded the defendant minor damages for delay and minor deviations.

The plaintiff was awarded a net sum of $15,960.37.