Sanj Sood

The City of Thunder Bay appealed a decision dismissing its application for a declaration that Canadian National Railway Company breached a 1906 agreement by refusing to reopen the James Street Swing Bridge for motor vehicle traffic following a 2013 fire.

The bridge is a combined railway and roadway structure.

The application judge found that the parties intended the bridge to be maintained only for the type of traffic existing in 1906 (streetcars, horses, and carts), not modern motor vehicles.

The Court of Appeal allowed the appeal, finding the application judge's interpretation was unreasonable and tainted by extricable errors of law.

The court held that the perpetual right to cross the bridge for "vehicle traffic" and the obligation to maintain it "in perpetuity" must include modern motor vehicles, not merely those existing in 1906.

The court also found the application judge erred in placing the onus on Thunder Bay to provide specific proposals for making the bridge safe for vehicles, when that obligation rested with CN as the bridge operator.

In a proposed class action regarding promissory note investments, the plaintiff obtained a Norwich Order, Mareva Injunction, and a certificate of pending litigation without notice.

The moving defendants brought a motion to discharge the certificate of pending litigation and for damages.

The court found that while the initial ex parte orders were justified, the certificate of pending litigation should be discharged because the plaintiff's claim was essentially monetary and there was no close connection between the property and the alleged improper benefits.

The issue of damages for the registration of the certificate was deferred to trial.

The City of Thunder Bay applied for declaratory orders and specific performance to compel Canadian National Railway Company (CN) to reopen and perpetually maintain the James Street Swing Bridge for vehicular traffic.

The City argued that CN's perpetual maintenance obligation included upgrading the bridge to modern safety standards.

CN contended its obligation was limited to the original 1906 design and that reopening required significant structural reconfiguration beyond maintenance.

The Fort William First Nation supported the City's position.

The court dismissed the application, finding the City's proposals for reopening the bridge vague and lacking specificity, and that the evidence did not clearly define the required work or establish that such work fell within CN's contractual maintenance obligation.

A freight forwarding company sued a secured creditor and related individuals for unpaid shipping invoices after the debtor companies entered receivership.

The plaintiff alleged that an employee of the debtor companies acted as an agent of the secured creditor and assured that outstanding invoices would be paid if shipping continued.

The court held that the employee was not an agent of the secured creditor and that no actual or ostensible authority had been established.

Claims based on agency, negligent misrepresentation, breach of trust, and fiduciary duty failed with respect to pre‑receivership invoices.

However, an email from the secured creditor’s representative constituted a contractual promise regarding post‑receivership invoices, making the creditor liable for those amounts.

Following an earlier endorsement in a commercial dispute, the court issued a corrigendum to correct two matters raised by counsel.

First, the formal endorsement had omitted the judge’s decision striking a specific paragraph of the applicants’ amended amended application, which had previously been recorded only in a handwritten endorsement.

Second, the reasons incorrectly stated that a newly constituted board had approved the sale of a 10% share in a corporation to a respondent, when in fact the scheduled board meeting had not proceeded because the application had already been commenced.

The court clarified both issues and amended the reasons accordingly.

The plaintiff bank sought enforcement of a $400,000 personal guarantee executed by the responding party in connection with corporate loans extended to two companies he controlled.

The responding party argued the guarantee was corporate rather than personal because a corporate seal appeared beside his signature and advanced counterclaims including breach of contract, slander of title, and punitive damages relating to the lender’s enforcement of security and sale of mortgaged property.

The court held the loan documentation clearly required a personal guarantee and that the corporate seal was legally irrelevant.

The defendant’s interpretation was commercially unreasonable and contradicted by the surrounding contractual documents and conduct.

The court enforced the personal guarantee and dismissed all counterclaims.

The applicants brought an oppression application regarding a family investment company, Naim Investments Limited.

They alleged that the proposed sale of a 10% shareholding by an estate to a third party, Dr. Low, was a disguised sale to a rival family branch that would breach an unwritten control agreement and a written ownership restriction agreement.

The court found no evidence of a control agreement, determined that Dr. Low was an arm's length purchaser, and concluded that the election of a new board to approve the sale was a proper exercise of corporate governance to resolve a deadlock.

The application was dismissed with costs.

The plaintiffs sought leave under s. 103(6) of the Courts of Justice Act and Rule 42.02 of the Rules of Civil Procedure to issue a certificate of pending litigation in relation to a dispute over the right to remove and sell cable fixtures from industrial property pursuant to an asset marketing agreement.

The court held that the plaintiffs established a triable issue regarding an interest in land because the agreement granted rights to enter the land, remove fixtures, and enforce a security interest over them.

However, applying the equitable discretion and the Dhunna factors, the court found that the cable was not unique and that damages were readily quantifiable and would constitute an adequate remedy.

The court concluded that issuing a CPL would cause disproportionate prejudice to the property owner compared to the plaintiffs’ ability to recover damages.

Leave to issue the certificate of pending litigation was therefore refused.

The moving party sought leave to bring a post-set-down motion, to strike the defence and counterclaim for non-compliance with prior orders, and judgment; alternatively, it sought compliance orders, dispensation of mediation, trial scheduling directions, a stay of prior costs, and motion costs.

The court found ongoing non-compliance with obligations to appoint counsel or file intention to act in person after removal of counsel of record.

The court declined to strike the defence and counterclaim but granted the requested alternative procedural relief, including compliance deadlines, dispensing with mediation, and requiring attendance at Trial Scheduling Court.

Costs were fixed at partial indemnity and set off against prior costs, with net costs remaining payable by the moving party and payment stayed pending trial.