Stuart R. Mackay

The moving parties brought a motion for leave to appeal the order of B. MacFarlane J. dated September 9, 2025.

The Divisional Court dismissed the motion for leave to appeal without costs.

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.

The appellant sought $1,000 in costs against a non-party and a newly added party for an improperly brought motion to be added as a party to a drainage appeal.

The Tribunal dismissed the application for costs, finding no authority to award costs against a non-party and concluding that the added party's conduct was not unreasonable or frivolous.

The Tribunal noted that costs should only be ordered in the most egregious circumstances, which were not present here.

The appellant brought a motion for an order directing the respondent municipality and third parties to produce various planning and environmental documents related to lands within the watershed of a proposed drain.

The appellant argued the documents were necessary to evaluate the drain's impact on its property.

The Tribunal dismissed the motion, finding the appellant failed to provide evidentiary foundation, such as expert affidavit evidence, to prove the requested documents were arguably relevant to the issues of flow and contamination on the appeal.

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 refusals motion arising from the examination for discovery of the plaintiff in a franchise dispute.

The defendants sought answers regarding the plaintiff's prior business experience to test his credibility about whether earnings projections were provided at a crucial meeting.

The court ordered the plaintiff to answer these questions, finding them relevant to what occurred at the meeting.

However, the court upheld the plaintiff's refusals to answer questions regarding discussions with his independent legal advice lawyer, as those questions improperly breached solicitor-client privilege.

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 defendants moved for summary judgment to dismiss the plaintiff's action on grounds including that it was statute-barred by the Limitations Act, 2002.

The court found that the plaintiff's claim was discovered in January 2016, based on email correspondence where the plaintiff explicitly articulated his loss, attributed it to the defendant, and indicated an intention to pursue legal action.

As the action was commenced in July 2018, more than two years after the claim's discovery, it was statute-barred.

The defendants' motion for summary judgment was granted, and the plaintiff's action was dismissed.

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.

The appellants appealed a trial decision dismissing their claim for adverse possession of a small area of land surrounding an outhouse on their neighbours' property, and awarding them $15,000 in nominal compensatory and punitive damages for the destruction of the outhouse and loss of use of their cottage.

The respondents cross-appealed the damages awards.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no palpable and overriding error in the trial judge's conclusion that the outhouse was placed with permission, which defeated the adverse possession claim.

The Court also upheld the nominal damages awards, finding them to be a rational response to the evidentiary difficulties in assessing damages and the respondent's high-handed misconduct.

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.