Stuart R. Mackay

The plaintiff sought to vary a court-approved timetable to compel affidavits of documents and examinations for discovery prior to the defendant's summary judgment motion.

The defendant opposed, arguing the motion should proceed without delay and that the case was not complex.

The court granted the plaintiff's motion, finding that allegations of fraud and forgery involve credibility issues difficult to resolve on a paper record alone.

The court ordered a proportionate discovery process including exchange of affidavits of documents and cross-examinations on the motion, with the summary judgment motion to be heard in fall 2026.

This decision addresses whether software developed by an employee (Vladimir Krougly) while employed at Nexus Solutions Inc. was created in the course of employment, such that Nexus would own the copyright in the software (Limedas) later commercialized by Limesoft Inc. The court finds that although Krougly was the author of the software, it was not created in the course of his employment with Nexus, and thus Nexus is not entitled to a proprietary remedy under copyright law.

The court reviews the factual background, credibility of witnesses, expert evidence, and the legal framework for copyright ownership in the employment context.

The plaintiffs sought summary judgment for debt collection, which the defendants resisted, arguing genuine issues for trial, partial summary judgment not disposing of litigation, and limitation issues.

The court dismissed the motion, finding numerous triable issues, including the quantum owed, the responsible corporate entity, Charles James Hevey's personal liability, and the validity of acknowledgments.

The court also noted the complexity of the corporate structures, the casual financial dealings between family members, and the presence of credibility issues, concluding that the case was not suitable for summary judgment or the use of expanded powers under Rule 20.04(2.1), and that partial summary judgment would not satisfy the criteria for efficiency or consistency given the ongoing third-party claims.

The Crown brought a motion for summary judgment to dismiss the plaintiffs' negligence action.

The plaintiffs, hog farmers, alleged the Crown's 2007-2008 financial assistance program was negligently designed because it used outdated 2000-2004 sales data, resulting in insufficient payments.

The central issues were whether the program's design decision was a policy or operational decision (policy decisions are immune from negligence liability) and whether the claim was statute-barred by the two-year limitation period.

The court found the design decision was a core policy decision, immune from liability, and alternatively, that the plaintiffs' claim was statute-barred as they had sufficient knowledge of their claim in 2008, not 2014 as they argued.

The Crown's motion for summary dismissal was allowed without costs.

The Court of Appeal for Ontario quashed an appeal brought by 9001522 Canada Limited, finding it lacked jurisdiction under s. 71(1) of the Construction Act.

The court declined to exercise its discretion to transfer the appeal to the Divisional Court, dismissing 9001522 Canada Limited's cross-motion for transfer.

Costs were awarded to East Elgin Concrete Forming Limited.

The mortgagee defendants brought a motion seeking an order that the corporate plaintiff pay security for costs under Rule 56.01(d) of the Rules of Civil Procedure.

The underlying action involved a failed real estate development and claims of civil conspiracy and knowing receipt of trust property.

The court found good reason to believe the plaintiff had insufficient assets in Ontario to pay costs, and the plaintiff failed to demonstrate impecuniosity or a real possibility of success on its equitable claims.

The motion was granted, and the plaintiff was ordered to post security for costs in the amount of $186,000.

The plaintiffs, an investment corporation and its principals, suffered losses from a failed real estate development and sought to recover their unsecured investment in priority to secured creditors.

The secured creditors (defendants) brought motions for summary judgment to dismiss the plaintiffs' claims.

The court dismissed the summary judgment motions, finding complex factual issues, multiple credibility assessments, and a risk of inconsistent findings if partial summary judgment were granted.

The court concluded that the current record was not appropriate for summary judgment and that a full trial was required to resolve the intertwined issues, including allegations of knowing receipt of trust property and conspiracy.

The defendants brought a motion to remove the plaintiffs' counsel of record, arguing he would likely be called as a witness at trial regarding his role in assisting a former franchisee to provide documents to the plaintiffs' previous counsel.

The defendants also sought a further and better affidavit of documents regarding these communications.

The court granted the request for a further affidavit of documents, finding the communications and attachments relevant to the issues at trial.

However, the court dismissed the motion to remove counsel as premature, concluding it was unlikely counsel would be called to testify and his evidence would have tenuous relevance.

The plaintiff landlord claimed $425,000 for breach of a commercial lease but was awarded only $5,719.37 at trial.

In this costs decision, the plaintiff sought full indemnity costs of over $73,000, arguing complexity and a lease clause.

The defendant argued it was the successful party, having offered a settlement close to the final award, and sought costs in its favour or no costs for the plaintiff.

The court applied Rule 57.05(1) due to the judgment being within Small Claims Court jurisdiction, finding the case not complex enough to warrant Superior Court costs.

The court also noted the plaintiff's unreasonable refusal of a reasonable settlement offer and the defendant's deficient offer.

Ultimately, the court exercised its discretion to order no costs to be paid by or to either party.

The plaintiffs brought a motion in writing on consent for an order requiring the defendants to satisfy undertakings and requiring two non-party banks to produce documents.

The court dismissed the motion, finding that a production order against non-parties under Rule 30.10 cannot be granted merely on the consent of the existing parties.

The moving party must serve the non-parties with notice and provide evidence satisfying the requirements of Rule 30.10.

The dismissal was without prejudice to the plaintiffs' ability to bring a fresh, compliant motion.

The plaintiff brought a motion for summary judgment seeking a declaration that its insurers had a duty to defend and indemnify it against a counterclaim in ongoing Wisconsin litigation.

The court found that the summary judgment procedure was inappropriate for duty to defend applications but proceeded to determine the issue based on the pleadings and the insurance policy.

The court concluded that the insurers had no duty to defend because the Wisconsin counterclaim sought only declaratory relief and not compensatory damages, which was a requirement for coverage under the errors and omissions policy.

The plaintiff's motion was dismissed, and partial summary judgment was granted to the defendants dismissing the duty to defend claim.

This case concerns a dispute over a $50,000 deposit in a failed residential real estate transaction.

The purchasers refused to close due to the vendor's inability to deliver free and clear title, specifically the discharge of a private mortgage on or before the closing date.

The vendor counterclaimed for damages, arguing the purchasers were unreasonable.

The court found the vendor's failure to discharge the private mortgage constituted a fundamental breach of the Agreement of Purchase and Sale, entitling the purchasers to the return of their deposit.

The vendor's counterclaim was dismissed.

The plaintiff landlord claimed damages for breach of a commercial lease after the defendant tenant abandoned the premises.

The court addressed five key questions: whether the landlord accepted repudiation prior to formal termination, whether leasing to another tenant (FroYo) constituted mitigation, whether the landlord took reasonable steps to mitigate damages both before and after deciding to sell the plaza, and whether the sale of the plaza ended the landlord's right to claim damages under the lease.

The court found that the landlord did not accept repudiation, took reasonable mitigation steps, and that the FroYo lease was a collateral transaction not constituting mitigation.

Crucially, the court determined that the sale of the plaza limited the landlord's claim for damages to the date of sale and dismissed the claim for diminution in sale price due to the vacancy.

An applicant mother sought a declaration of true ownership of a family cottage, asserting a purchase money resulting trust, against her daughter, the registered owner.

The court examined the transferor's intent at the time of purchase, considering tax planning advice and the registration of a mortgage.

It found that the parents intended for the daughter to be the beneficial owner, primarily to avoid capital gains and protect the asset from future creditors or matrimonial claims involving the daughter.

The application was dismissed, affirming the daughter's ownership, though her liability under the original mortgage was maintained, while a later increased mortgage without consideration was deemed not to reflect indebtedness.

The defendants, the Estate of Norman A. Peel and Canadian Imperial Bank of Commerce (CIBC), brought motions to dismiss the plaintiff's action for a construction lien.

CIBC sought dismissal due to the plaintiff's failure to appoint new counsel or serve a notice of intention to act in person after his second lawyer was removed from the record.

The Estate also sought dismissal for failure to comply with the removal order and for not meaningfully pursuing the litigation.

The court found that while there were delays, the plaintiff was not solely responsible for them and had acted promptly upon becoming aware of the removal order.

The court emphasized that dismissal is a draconian remedy and found no non-compensable prejudice to the defendants.

The motions to dismiss were denied, and the action was restored to the trial list, with the plaintiff ordered to pay costs to the defendants.

An appeal from a Divisional Court decision upholding a Tribunal award of damages to a farm equipment dealer against a manufacturer/distributor for improper non-renewal of a dealership agreement.

The core issue concerned the retrospective application of Ontario Regulation 123/06 (Dealership Agreements Regulation) to an existing dealership agreement and the proper interpretation of the mandatory renewal provisions.

The manufacturer provided notice of non-renewal under the original agreement terms, but the Tribunal found this non-compliant with the Regulation's mandatory process requiring disclosure of all reasons for non-renewal and an opportunity for the dealer to respond.

The Court of Appeal upheld the Tribunal's liability findings and damages award, dismissed the manufacturer's appeal, and allowed the dealer's cross-appeal on costs by restoring the Tribunal's costs award that had been quashed by the Divisional Court.

This ruling addresses costs arising from three summary judgment motions in consolidated actions.

In the first motion, B-W Feed & Seed Ltd. (BWFS) successfully dismissed a third-party claim by Stargate Manufacturing Inc., with the court finding BWFS owed no duty of care to Stargate.

BWFS was awarded partial indemnity costs of $33,458 against Stargate.

In the second motion, Stargate successfully defended a summary judgment claim brought by BWFS as plaintiff, and was awarded partial indemnity costs of $13,186.34 against BWFS.

In the third motion, Zehr Transport Ltd. successfully defended a summary judgment motion by Transit Trailer Limited, which sought to dismiss Zehr's action for breach of contract, warranty, and negligence.

Zehr was awarded partial indemnity costs of $13,159.30 against Transit.

The court emphasized the principle of reasonableness in fixing costs, considering factors under Rule 57.01, and reiterated that elevated costs (substantial indemnity) are generally reserved for egregious misconduct, not merely an offer to settle outside Rule 49.10.

This ruling addresses costs arising from three summary judgment motions in consolidated actions.

In the first motion, B-W Feed & Seed Ltd. (BWFS) successfully dismissed a third-party claim by Stargate Manufacturing Inc., with the court finding BWFS owed no duty of care to Stargate.

BWFS was awarded partial indemnity costs of $33,458 against Stargate.

In the second motion, Stargate successfully defended a summary judgment claim brought by BWFS as plaintiff, and was awarded partial indemnity costs of $13,186.34 against BWFS.

In the third motion, Zehr Transport Ltd. successfully defended a summary judgment motion by Transit Trailer Limited, which sought to dismiss Zehr's action for breach of contract, warranty, and negligence.

Zehr was awarded partial indemnity costs of $13,159.30 against Transit.

The court emphasized the principle of reasonableness in fixing costs, considering factors under Rule 57.01, and reiterated that elevated costs (substantial indemnity) are generally reserved for egregious misconduct, not merely an offer to settle outside Rule 49.10.

This case involved three motions for summary judgment arising from two consolidated actions following a dump trailer tipping incident.

B-W Feed & Seed Ltd. (BWFS) moved to dismiss a third-party claim by Stargate Manufacturing Inc. and also for summary judgment against Stargate.

Transit Trailer Limited moved to dismiss an action against it by Zehr Transport Ltd. The court granted BWFS's motion to dismiss Stargate's third-party claim, finding no cause of action.

However, BWFS's motion for summary judgment against Stargate was dismissed due to complex factual issues requiring a trial.

Transit's motion for summary judgment against Zehr was also dismissed, as Zehr raised triable issues regarding breach of implied conditions under the Sale of Goods Act, manufacturer's warranty, and Transit's duty to warn.