Steven F. Rosenhek

The court determined the proper interpretation of a consulting retainer agreement governing contingent transaction fees for the sale of a business.

The respondents argued the fee provision should be interpreted as a staged structure applying 3.5% up to $6 million and 5% thereafter, while the applicant maintained the contract required 3.5% of the entire purchase price plus an additional 5% of the amount above $6 million.

The respondents sought to introduce extrinsic evidence including prior negotiations and industry standards to support their interpretation.

The court held the contractual language was clear and unambiguous despite producing a surprising result and declined to consider extrinsic evidence.

The applicant’s literal interpretation of the fee provision was upheld.

The plaintiff, Canadian Pacific Railway Company, sought to convert an interim injunction into a permanent injunction to restrain the defendant truck drivers from picketing and blockading its Vaughan Intermodal Terminal.

The defendants, who were independent contractors for trucking companies serving CPR, had been protesting pay cuts.

Following reports of vandalism and safety concerns, the court found that the plaintiff met the test for an injunction and ordered that the existing interlocutory injunction be made permanent pending trial.

The defendants sought leave to appeal a motion judge's decision granting the plaintiffs' motion to amend their statement of claim to convert their individual environmental contamination action into a class proceeding.

The defendants argued the court lacked jurisdiction to convert an individual action to a class proceeding, applied the wrong test for the amendment, and improperly allowed the addition of potentially statute-barred claims.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision that the court had jurisdiction, that the Rule 26.01 test for amendments applied, and that limitation period issues were best left for the certification stage.

The respondent was seriously injured when his motorcycle struck a freight train at a rural railway crossing at night.

The crossing had only a passive warning system.

The trial judge found the appellant railway company 75% negligent for failing to conduct nighttime inspections and failing to implement additional safety measures, and the respondent 25% contributorily negligent due to excessive speed and impairment.

The Court of Appeal dismissed the railway company's appeal, upholding the trial judge's findings on standard of care, causation, and contributory negligence.

The appellants appealed a trial judgment awarding damages to the City of Windsor for the cost of restoring municipal roads to grade after Canadian Pacific Railway abandoned a railway line.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to conclude that the railway's obligation to maintain the bridges continued after abandonment, and that the damages awarded represented the least cost to restore the roads to grade.

The appellant, an Arizona supplier, sued its Ontario dealer for non-payment.

The dealer counterclaimed for defective goods.

Three and a half years after the action commenced, the dealer successfully moved to stay the Ontario proceedings based on a forum selection clause designating Arizona.

The Court of Appeal allowed the appeal, finding the motion judge erred in principle by treating the clause as determinative absent waiver.

Exercising its own discretion under s. 106 of the Courts of Justice Act, the Court held that the inordinate delay, the steps already taken in the Ontario litigation, and the close connection to Ontario constituted 'strong cause' not to enforce the forum selection clause.