Robert J. Drake

Following the dismissal of the Crown's appeal from costs ordered against it in forfeiture proceedings under the Controlled Drugs and Substances Act, the respondents sought costs of the appeal.

The Court of Appeal declined to award costs, noting that costs are generally not awarded against the Crown in criminal proceedings absent a Charter infringement, serious Crown misconduct, or exceptional circumstances.

The court found no serious misconduct by the Crown on the appeal itself, and no exceptional circumstances justifying a costs award.

Furthermore, the court noted that section 683 of the Criminal Code precludes a costs award on the appeal.

The plaintiff sought specific performance of an agreement of purchase and sale for a 75% interest in 200 acres of land and shares in a bare trustee corporation.

The agreement failed to close due to disputes over directors' resolutions for share transfers and extensions.

The court found the defendant vendors breached their good faith obligation to close and failed to deliver a valid directors' resolution.

The defendants' arguments of no agreement to extend, no obligation to extend, mutual mistake, and the purchaser not being in funds were rejected.

Specific performance was deemed the appropriate remedy due to the uniqueness of the property.

The third-party claim against the vendors' lawyers for negligence was dismissed, as their advice was consistent with a proper interpretation of the joint venture agreement.

The Crown appealed a nearly $1 million costs award made against it after its unsuccessful application to forfeit two properties under the Controlled Drugs and Substances Act.

The application judge found the Crown's conduct, including pursuing a meritless application against innocent third parties and taking an intransigent attitude, amounted to a marked and unacceptable departure from reasonable standards.

The Court of Appeal dismissed the appeal, holding that the Ontario Court of Justice has an implied power to award costs in CDSA forfeiture applications, the correct standard was applied, and the quantum of costs was reasonable.

The applicant moved to disqualify a law firm from representing the respondent receiver in a funds dispute, alleging a conflict of interest.

The law firm brought a cross-motion to be removed as the applicant's counsel in other ongoing litigation.

The court found that the retainer agreement between the applicant and the law firm explicitly contemplated this scenario and permitted the law firm to continue representing the receiver if a dispute arose.

Applying the Supreme Court of Canada's jurisprudence on the bright line rule, the court held that the applicant's expectation of exclusive loyalty was unreasonable given the terms of the retainer.

The applicant's motion was dismissed, and the law firm's cross-motion was granted.

The appellant appealed a decision of the Landlord and Tenant Board terminating her tenancy under s. 93 of the Residential Tenancies Act, 2006, on the basis that she occupied a superintendent's premises.

The appellant argued the Board erred in law by refusing to hear certain evidence, reversing the burden of proof, and finding the informal arrangement justified termination.

The Divisional Court dismissed the appeal, finding no errors of law and noting that appeals from the Board are restricted to questions of law.

Multiple purchasers of commercial condominium units alleged misrepresentation and overcharging by the developer and sought interlocutory relief preventing the developer from disposing of its remaining assets pending trial.

The moving parties argued the developer had limited assets and that dissipation would frustrate recovery of any judgment.

The court held that pre‑judgment restraint of assets is an extraordinary remedy requiring a strong prima facie case, evidence of asset dissipation outside the ordinary course of business, and proof of irreparable harm.

The evidence did not establish that the developer was disposing of assets improperly or that irreparable harm would result.

The motion to restrain disposition of assets was dismissed.

Appeal from a Master's Report in ten lien actions tried together by reference concerning unpaid amounts under an elevator maintenance contract.

The appellant abandoned all grounds except the rejection of an equitable set-off claim based on alleged inadequate maintenance, suspension or termination of service, and a new promissory estoppel theory tied to a flood emergency.

The court held that the estoppel argument was a new issue not raised at trial, and that the Master made no reviewable error in finding the respondent had suspended service in accordance with the contract and that the alleged $75,000 set-off had not been proven.

The Master's Report was confirmed.

The parties entered into a joint venture to purchase and convert a property into a self-storage facility, which included a put/call agreement.

The respondent exercised the put, forcing the appellant to purchase the property at a price determined by an appraiser.

The appellant refused to close, alleging the appraiser made a manifest error by not using the income approach.

The trial judge granted specific performance to the respondent and awarded substantial indemnity costs based on an unserved offer to settle.

The Court of Appeal dismissed the appeal, finding no manifest error in the appraisal, upholding the award of specific performance for the vendor, and confirming the costs award.

The appellants appealed an order recognizing and enforcing in Ontario a German arbitral verdict.

They argued for the first time on appeal that a certified copy of the arbitral record was not before the application judge and that the enforcement order should not have been made.

The court held that the supporting affidavit attached a true copy of the duly certified translation of the arbitral verdict, together with the original verdict and translator’s affidavit, and that it was open to the application judge to accept that evidence as meeting article 35(2) of the International Commercial Arbitration Act.

The appeal was dismissed with agreed costs to the respondent.

The plaintiff supplier brought a motion for summary judgment for unpaid invoices and breach of trust under the Construction Lien Act arising from the supply of electrical equipment to several related contractor companies.

The court found the defendants had received goods without payment and provided no evidence disputing the invoiced amount.

Because the corporate defendants operated as iterations of the same family-run business and attempted to attribute liability to a dormant company, the court treated them as alter egos and held them jointly and severally liable.

However, the court declined to grant summary judgment on the alleged breach of statutory trust, finding further production and cross-examination necessary to determine whether trust funds had been received and improperly disbursed.

Judgment for the invoiced amount was granted, with the trust claim adjourned for further evidence.

The appellant, an IT consulting firm, appealed a Small Claims Court decision finding it liable for negligent misrepresentation.

The appellant had offered the respondent an independent contractor position at Loblaw, but failed to disclose that the position had not yet received final approval.

The respondent left another contract to accept the offer, which was subsequently withdrawn.

The Divisional Court upheld the trial judge's finding that the appellant made a negligent misrepresentation and that the respondent reasonably relied on it to his detriment.

The Court also held that the entire agreement clause in the contract did not preclude liability, applying the Tercon approach to find the clause unconscionable given the informational imbalance and lack of notice.

The appellant recruitment agency appealed a Small Claims Court judgment finding it liable for negligent misrepresentation.

The agency had offered the respondent an independent contractor position at Loblaw, representing it as a certainty, which caused the respondent to turn down another job offer.

The position at Loblaw was never finalized.

The Divisional Court upheld the trial judge's finding that the agency made a negligent misrepresentation and that the entire agreement clause in the contract did not preclude liability, as it was unconscionable under the Tercon approach and the respondent was an unsophisticated party who was not given notice of the clause.

The appeal was dismissed.

Following a 17‑day commercial trial in which the plaintiff obtained judgment for specific performance and damages exceeding its earlier settlement offer, the court determined the appropriate costs award.

The plaintiff relied on Rule 49 of the Rules of Civil Procedure, arguing that a written settlement offer transmitted by email triggered substantial indemnity costs consequences.

The court held that the email constituted a valid Rule 49 offer notwithstanding the “without prejudice” designation and rejected the defendants’ argument that such wording removed the offer from Rule 49.

In assessing quantum, the court applied the principles under s.131 of the Courts of Justice Act and Rule 57.01, emphasizing reasonableness rather than strict adherence to actual legal fees.

The court fixed costs at a lump sum reflecting partial and substantial indemnity principles and adjustments for conduct that lengthened the proceedings.

The plaintiff and defendants entered into an Option Agreement for the purchase and sale of a retro-fitted self-storage facility.

The plaintiff exercised a 'Put' option requiring the defendants to purchase the property at an appraised value.

The defendants refused to close, alleging the appraisal contained a manifest error and that the roof was defective, breaching a warranty.

The court found no manifest error in the appraisal and that the roof issues were maintenance problems which the defendants, as property managers, had failed to address.

The court granted specific performance of the sale at the appraised value of $7.3 million and awarded the plaintiff $728,080.05 in carrying costs.

The appellants guaranteed loan facilities provided by the respondent bank to a corporate debtor.

After the debtor defaulted, the bank appointed a receiver and sued the appellants for the shortfall.

The motion judge granted summary judgment to the bank.

On appeal, the appellants argued the bank acted commercially unreasonably by not allowing the debtor to be sold as a going concern and that material variations to the loan discharged their guarantees.

The Court of Appeal dismissed the appeal, finding the bank had no duty to continue extending credit and that the variations were authorized by the guarantee agreements.

The applicant, who self-identifies as black and a Seventh-Day Adventist, alleged that his race, colour, and creed were factors in the termination of his employment.

The respondent employer maintained that the termination was a layoff due to a downturn in business, and the applicant was selected because he had the least seniority among senior technicians.

The Tribunal found the respondent's manager to be a credible witness and accepted that the layoff was for financial reasons based on seniority.

The Tribunal concluded that the applicant failed to establish on a balance of probabilities that his race, colour, or religion played a part in the termination decision.

The application was dismissed.