Steven John Gearing

The trial concerned a counterclaim by Daro Industries Inc. and Robert Danninger against Innocon and Lafarge Canada Inc. for breach of contract (Sale of Goods Act), negligence, and defamation, arising from the delamination of a self-levelling floor screed product, Fina, supplied by Lafarge for a high-rise construction project.

Daro alleged the Fina was defective due to limestone filler causing delayed hydration and expansion.

Lafarge contended the delamination was due to Daro's improper installation, including inadequate primer application and uncontrolled environmental factors.

The court dismissed the counterclaim, finding Daro failed to prove the Fina was defective or that Lafarge was negligent or defamed Daro.

The court concluded the delamination was more likely due to Daro's installation deficiencies and site conditions.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal.

In the absence of costs submissions from the responding parties, costs were fixed in the amount of $2,500 payable within 30 days.

The appellants, judgment creditors of 798839 Ontario Limited (39), appealed a summary judgment decision.

The original motion judge found that 39 had not satisfied the contractual prerequisites to acquire an interest in a mining development, specifically by failing to expend the required funds on the specified property, with a portion diverted to another project.

The Court of Appeal dismissed the appeal, affirming the motion judge's interpretation of the contract and finding no error in her consideration of the factual matrix.

The court emphasized that contractual interpretation must primarily rely on the plain language of the agreement and that surrounding circumstances should not overwhelm the text or create a new agreement.

The Plaintiffs, judgment creditors of 798839 Ontario Limited ("39"), brought a motion for partial summary judgment seeking a declaration that 39 held a valid and subsisting interest in mining claims under a 1988 option agreement with Great Lakes Nickel Limited ("GLN").

The Plaintiffs argued that 39 had acquired an 80% interest or, alternatively, a 60% interest, despite only expending approximately $1.6 million of the required $2 million.

The court, interpreting the plain wording of the option agreement, found that 39 was required to invest the full $2 million to acquire an 80% interest, failing which the option terminated and 39 acquired no interest.

The court dismissed the Plaintiffs' motion, granting summary judgment in favour of GLN on this issue, while declining to address other issues like limitations due to the partial nature of the summary judgment.

The Town of Oakville appealed the dismissal of charges against a mobile sign company for violating the town's sign by-law.

The trial judge found section 39(3) of the by-law, which restricted third-party advertising signs to E1 and E2 industrial zones, violated freedom of expression under the Canadian Charter of Rights and Freedoms and was not justified under section 1.

The appellate court reversed, finding the trial judge erred in failing to accord appropriate deference to municipal policy decisions, mischaracterizing the nature of commercial expression, and failing to properly apply the minimal impairment test under the Oakes framework.

The court upheld the by-law as rationally connected to legitimate municipal objectives and proportionate to those objectives.

The appellants appealed a summary judgment dismissing their claim for damages for abuse on the basis of laches and delay.

They argued the motions judge erred because laches and delay were not specifically pleaded by the respondent.

The Court of Appeal dismissed the appeal, finding that the issues were raised in the factums, fully argued, and caused no prejudice or surprise to the appellants, who had known of their claim since 1989 but waited 13 years to commence proceedings.