Ronald G. Slaght

After dismissing a municipal defendant’s motion for summary judgment in a procurement dispute, the court addressed the successful plaintiff’s claim for costs.

The plaintiff sought approximately $50,000 on a partial indemnity basis, while the defendant argued that $20,000–$25,000 would be reasonable.

Applying the factors in Rule 57.01(1) of the Rules of Civil Procedure and the Court of Appeal’s guidance that costs must be fair and reasonable to the unsuccessful party, the court reduced several components of the claim.

Reductions were made for the junior counsel’s billing rate, duplication between counsel, and unnecessary expert evidence.

The court fixed costs at $30,000 all-inclusive payable by the defendant.

The defendant municipality brought a motion for summary judgment seeking dismissal of a procurement dispute arising from a waste haulage contract tender.

The plaintiff carrier alleged its bid was wrongly rejected as non‑compliant despite literal compliance with the tender terms and sought damages for lost profits.

The court held the motion record was inadequate and contained unresolved evidentiary conflicts regarding the interpretation of tender documents, the purpose of amendments to the request for quotation, and the municipality’s handling of clarification opportunities.

The court found that the summary judgment process would not provide a fair and just determination of the dispute.

A full trial was required in the interests of justice.

The successful appellant sought costs of the appeal and a stay motion.

The respondent and the Receiver argued that costs should be in the cause or paid from funds held in trust, citing special circumstances including the matter returning to the Superior Court and the Receiver managing the property without rent payments.

The Court of Appeal found no reason to depart from the usual rule that a successful party is entitled to costs forthwith, and awarded costs to the appellant payable jointly and severally by the respondent and the Receiver.

The appellant, Home Depot, appealed orders authorizing a receiver to sell a property free and clear of Home Depot's leasehold and equitable interests.

The motion judge had refused to draw inferences regarding whether the first mortgagee had impliedly consented to Home Depot's lease, stating he could only rely on undisputed facts.

The Court of Appeal allowed the appeal, holding that the motion judge erred in law by applying an incorrect standard of proof and failing to draw reasonable inferences from the evidence.

The matter was remitted for a new hearing.

The appellant estate appealed a trial judgment awarding damages for medical malpractice following a fatal infection caused by a dislodged feeding tube.

The trial judge found the surgeon breached the standard of care by failing to suture the jejunum to the abdominal wall, relying on expert opinion interpreting the operative notes.

The Court of Appeal allowed the appeal, holding that the trial judge erred in preferring expert opinion over the direct evidence in the subsequent operative report, which clearly indicated the jejunum was attached.

The action was dismissed.

The appellant appealed a decision denying certification of a class proceeding.

The appellant sought to proceed with the appeal based on a proposed Amended Statement of Claim that was not before the motions judge.

The Divisional Court held that it could only review the decision based on the original record and was not the proper forum for a first-instance decision on certification based on new pleadings.

Given the appellant's intention to seek an amendment regardless of the appeal's outcome, the appeal was deemed moot and stayed, with directions for the appellant to bring a motion to amend and certify in the court below.

The appellants, a law firm and its partner, appealed a partial summary judgment finding that a cause of action for solicitor's negligence had been validly assigned to the respondent, Gentra Canada.

The Court of Appeal held that a claim for solicitor's negligence is assignable if the assignee has a legitimate commercial interest, departing from older jurisprudence.

The Court found the assignment language was broad enough to include the claim and that Gentra Canada could sue in its own name without joining the assignor.

However, the appeal was allowed with respect to a subsidiary company that was not a party to the assignment.

The plaintiffs, former executives and shareholders of Med-Eng, sued the company and its directors for oppressive conduct regarding a share repurchase.

After Med-Eng was acquired by Allen-Vanguard, the plaintiffs commenced a new action against the original defendants and added defendants (the acquirer, offeree shareholders, and escrow agent), seeking a constructive trust over an escrow fund.

The motions judge struck the new action as an abuse of process and for disclosing no reasonable cause of action against the added defendants.

The Court of Appeal dismissed the appeal, finding the new action circumvented the rules for amending pleadings and adding parties, and that no cause of action in unjust enrichment, breach of fiduciary duty, or resulting trust was pleaded against the added defendants.

The appellants appealed a trial judgment finding them liable for defamation, intentional interference with economic relations, and inducing breach of contract arising from the peremptory removal of the respondent from a military aerospace consulting project.

The Court of Appeal clarified the elements of intentional interference with economic relations and inducing breach of contract, adopting the House of Lords' approach in OBG v. Allan.

The court held that unlawful means for intentional interference must be directed at a third party and not directly actionable by the plaintiff.

While the trial judge erred in using defamation directly actionable by the plaintiff as unlawful means, the court upheld liability based on a conspiracy against a third party and breach of contract.

The court also confirmed that inducing breach of contract requires an actual breach, not mere frustration.

The appeal was dismissed and the damages awards were upheld.

The plaintiff sought leave to appeal a motion judge's order certifying a class proceeding in part.

The motion judge had declined to certify claims for fraudulent misrepresentation, negligent misrepresentation, and civil conspiracy, and had restricted the class to Canadian purchasers.

The Divisional Court granted leave to appeal solely on the issue of the civil conspiracy claim, finding conflicting decisions and good reason to doubt the correctness of requiring the plaintiff to plead special damages at the certification stage.

Leave to appeal was denied for the misrepresentation claims and the class definition.

The appellant appealed an order of the Superior Court of Justice regarding the interpretation of an agreement.

The Court of Appeal dismissed the appeal, agreeing with the application judge's analysis that Sections 8 and 2 of the agreement must be read together.

The court found the application judge's reasoning sufficient to dispose of the interpretative issue in favour of the respondents.

The appellant, a property owner, appealed a summary judgment order requiring it to pay the respondent contractor $1,199,122.50 for the unpaid balance of a construction contract.

The motions judge had found that a prior settlement agreement constituted an unequivocal admission of liability, precluding the appellant from raising a defence of equitable set-off for construction deficiencies.

The Divisional Court allowed the appeal, holding that the settlement agreement expressly permitted the appellant to file a statement of defence without prejudice in the event of default.

As the elements of equitable set-off were present, there was a genuine issue for trial, and the summary judgment was set aside.

The appellant law firm appealed an order requiring it to pay costs personally under Rule 57.07.

The application judge found that the solicitors' conduct caused inordinate and unnecessary delay, particularly during the enforcement stage, and resulted in wasted court time due to non-appearances, disregarded court orders, and lack of preparation.

The Court of Appeal dismissed the appeal, holding that a holistic, after-the-fact examination of the entire course of litigation is appropriate for assessing a solicitor's conduct under Rule 57.07, and that there was ample basis for the application judge's findings.

An Ontario car dealer purchased a vehicle originally from Québec and sold it to an Ontario wholesaler.

At the time, a finance company had an unregistered security interest in the vehicle under Québec law, which it registered 12 days later.

Under the Civil Code of Québec, this registration was retroactive.

The finance company sued the Ontario purchasers to enforce its security interest.

The trial judge found for the finance company, holding that the purchasers' presumed good faith was rebutted by their failure to act with due diligence.

The Court of Appeal dismissed the purchasers' appeal, determining that the standard of review for foreign law is correctness, and agreeing that the purchasers' failure to take prudent steps to verify title rebutted the presumption of good faith under Québec law.

The plaintiffs sought leave to appeal a motion judge's dismissal of their motion to enforce a settlement under Rule 49.09.

The motion judge had found he could not determine whether a settlement had been reached.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions on the application of Rule 49.09 and no good reason to doubt the correctness of the motion judge's decision, as he properly applied a Rule 20 summary judgment approach to the first step of the settlement enforcement analysis.

The appellants moved under Rule 49.09 for judgment in the terms of an alleged settlement agreement.

The motion judge dismissed the motion, stating that he could not determine on the affidavit evidence whether a binding settlement had been reached, but concluded by stating the proceeding would continue as if there had been no accepted offer.

The appellants appealed to the Court of Appeal.

The Court of Appeal quashed the appeal, holding that the motion judge's order was interlocutory because he did not make a final determination that no settlement existed, but rather found he could not decide the issue on the record before him.

As the order was interlocutory, the Court of Appeal lacked jurisdiction.

The applicant brought a motion to compel a proposed witness, a former Crown attorney who had since been appointed to the bench, to be examined orally before a special examiner regarding his affidavit.

The Crown and the proposed witness argued for written interrogatories.

The Court of Appeal granted the motion, holding that oral examination was in the interests of justice to effectively test the reliability of the witness's memory without impairing his current judicial role.

The appellant, a senior labour relations employee for the City of Hamilton, appealed the dismissal of his wrongful dismissal action.

The trial judge found that the appellant engaged in personal and sexual harassment of a colleague, as well as retaliation, conflicts of interest, abuse of authority, and insubordination.

The Court of Appeal applied the contextual approach from McKinley v. BC Tel and upheld the trial judge's conclusion that the cumulative effect of the appellant's misconduct, particularly given his senior role and responsibility for workplace policies, justified his termination without notice.

The appeal was dismissed with costs.

The respondent employee sued his former corporate employer and its directing mind for breach of an employment contract, claiming a 50 per cent commission on profits from a real estate project completed after his resignation.

The trial judge found both the corporation and the directing mind liable for the full 50 per cent of the profits, including those earned by third-party investors.

On appeal, the Court of Appeal upheld the finding that the contract entitled the employee to post-termination profits based on an objective interpretation of the agreement.

However, the Court allowed the appeal in part, holding that the employee was not entitled to profits earned by third-party investors, and dismissed the action against the directing mind personally, finding no basis to pierce the corporate veil.

The plaintiffs were successful in a personal injury action and were awarded damages and costs.

The trial judge also awarded a risk premium of $192,600 to the plaintiffs' counsel, payable by the defendants, because counsel had carried the litigation for four years without remuneration.

The Court of Appeal upheld the risk premium.

The Supreme Court of Canada allowed the appeal and set aside the risk premium, holding that the risk of non-payment to a plaintiff's lawyer is not a relevant factor under Rule 57.01(1) of the Ontario Rules of Civil Procedure when fixing costs payable by an unsuccessful defendant.