Sean Gibson

The plaintiff, Isobel Kozey, brought a motion for leave to amend her personal injury claim to add Broadleaf Landscaping & Snow Removal Inc. and Triovest Realty Advisors Inc. as defendants, following a trip-and-fall incident.

Broadleaf opposed the motion, arguing the claim against it was statute-barred due to the expiry of the limitation period.

The court granted the motion, finding that the plaintiff provided a reasonable explanation for the delayed discovery of Broadleaf's identity, establishing a triable issue regarding discoverability.

The court also dismissed Broadleaf's arguments of non-compensable prejudice and found it unnecessary to rule on the misnomer principle.

In this costs endorsement following a summary judgment ruling on liability in a software licence and copyright dispute, the plaintiffs sought partial indemnity costs of both the motion and the action to date.

The court held it was premature to award costs of the motion because the action had been bifurcated by the plaintiffs and the defendant had an outstanding monetary offer to settle the entire action, engaging the potential costs consequences of Rule 49.10(2).

The court declined to award action costs at this stage and deferred entitlement to motion costs until after the damages trial.

It nevertheless fixed the plaintiffs' partial indemnity costs of the summary judgment motion at $280,000 inclusive, should those costs later be awarded.

On a summary judgment motion in a software licensing dispute, the court interpreted a licence agreement governing enterprise use of document conversion software.

The court held that the agreement did not impose a one-server-per-licence restriction, but it did restrict use to the AIX platform and to association with IBM's CMOD database.

The moving parties obtained declarations that use outside those limits breached the licence and infringed copyright under the Copyright Act.

Estoppel and limitation defences based on technical support knowledge did not raise a genuine issue requiring a trial on liability.

Damages were directed to a trial rather than a reference.

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 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.

Three defendants appealed their convictions and sentences for breaching the County of Elgin Woodlands Conservation Bylaw 05-03 by cutting down trees in a right of way without complying with the bylaw's provisions.

The County of Elgin cross-appealed seeking increased sentences and lifting of a stay on one count.

The appellate court found that the Kienapple principle against multiple convictions did not apply, as the seven counts contained sufficient distinct elements.

The court set aside findings of guilt on two counts relating to signage and notice requirements, finding the bylaw language ambiguous as applied to the defendants.

The court increased the fines imposed, finding the original sentences inadequate to satisfy principles of general and specific deterrence in regulatory offences.