Stuart R. Mackay

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 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.

The appellant, CNH, appealed a decision of the Agricultural, Food and Rural Affairs Appeal Tribunal.

During an attendance before the Divisional Court, the parties consented to refer the matter back to the Tribunal but could not agree on costs.

Following the Tribunal's subsequent decision, both parties sought costs for the earlier court attendance.

The court found neither party was entitled to the excessive costs sought and ordered the appellant to pay the respondent's costs of the attendance fixed at $2,500.

The applicant, an EMS Manager with bipolar disorder, exhibited erratic and inappropriate behaviour in the workplace, including frivolous spending, insubordination, and verbal abuse towards staff.

After disclosing his disability and taking a medical leave, the respondent investigated his conduct but failed to consider whether the behaviour was disability-related.

In 2011, the respondent decided never to return the applicant to his managerial position.

The Human Rights Tribunal of Ontario found that while the initial refusal to return him to work pending investigation was not discriminatory, the permanent removal from his position was discriminatory.

The respondent failed its procedural and substantive duty to accommodate the applicant's disability.

The Tribunal ordered the applicant's reinstatement subject to medical clearance and workplace restoration conditions, along with lost income and $25,000 for injury to dignity, feelings, and self-respect.

The Registrar issued a Notice of Proposal to revoke the appellant's registration as a salesperson under the Motor Vehicle Dealers Act, 2002, alleging involvement in misleading advertising at the dealerships where he worked and dishonest conduct surrounding his personal bankruptcy.

The Licence Appeal Tribunal found that the appellant had no control over the advertising at the dealerships and that the Registrar failed to provide evidence supporting the allegations of deceit regarding his bankruptcy.

The Tribunal directed the Registrar not to carry out the proposal, allowing the appellant to maintain his registration.

The appellant, a farm implement dealer, appealed the non-renewal of its dealer agreement by the respondent manufacturer.

The Tribunal found that the respondent breached the Farm Implements Act and Ontario Regulation 123/06 by failing to provide the required written notice with full reasons and an opportunity to cure before deciding not to renew the agreement.

The Tribunal determined that the regulation applied retrospectively to the existing contract, removing the respondent's unfettered right to not renew.

The Tribunal awarded the appellant damages for loss of profits based on a two-year reasonable notice period and for obsolete assets, totaling $139,846 plus pre-judgment interest.

The Registrar of Alcohol and Gaming proposed to revoke the applicant's liquor licence following a fatal motor vehicle accident involving a patron who had consumed alcohol at the applicant's establishment.

The patron's post-mortem blood alcohol level was significantly above the legal limit.

The Registrar alleged that the licensee permitted drunkenness, served an intoxicated person, and obstructed an inspection by tearing a receipt.

The Licence Appeal Tribunal found that the server only provided a reasonable amount of alcohol to the patron, who showed no signs of intoxication.

The Tribunal accepted the licensee's explanation that the receipt was accidentally torn during normal business operations and found no evidence of obstruction.

Concluding that the licensee did not know or ought to have known the patron was intoxicated, the Tribunal dismissed all allegations and directed the Registrar not to carry out the proposal to revoke the licence.

The applicant brought a motion to stay a Licence Appeal Tribunal hearing regarding the revocation of his motor vehicle dealer registration, pending the outcome of his civil lawsuit against the Registrar in the Superior Court of Justice.

The applicant argued that the civil action, which alleged bad faith and ulterior motives by the Registrar, could render the Tribunal hearing moot and that proceeding would cause irreparable harm through unrecoverable legal costs and the risk of inconsistent findings.

Applying the RJR-MacDonald test, the Tribunal found that while there was a serious issue to be tried, the applicant would not suffer irreparable harm.

Furthermore, the balance of inconvenience favoured proceeding with the hearing, as the public interest in timely regulatory oversight under consumer protection legislation outweighed the low risk of inconsistent findings.

The motion for a stay was dismissed.

During the continuation of a hearing to consider damages, the appellant requested a voir dire regarding the admissibility of revised financial data and an expert report addendum.

The appellant had recently discovered that its original damages claim relied on projections rather than actual sales and expenses data now available.

The respondent objected on grounds of relevance and timing.

The Tribunal admitted the evidence, finding it prima facie relevant and concluding that the prejudice to the appellant of excluding it outweighed the prejudice to the respondent.

To mitigate any prejudice, the Tribunal granted a short adjournment, permitted further limited examination for discovery, and allowed the respondent to supplement its expert report.

The applicant's expert witness was unable to testify because he could not access the applicant's medical records, which were held by third parties.

The hearing was adjourned.

To ensure the fair and expeditious resolution of the matter, the Tribunal ordered the London Health Sciences Centre and the respondent's disability insurer to produce the applicant's medical records to the applicant's counsel prior to the rescheduled hearing date.

At a pre-hearing conference following a Divisional Court order remitting certain liability issues back to the Tribunal, the Tribunal determined procedural matters for the resumed hearing.

The Tribunal ordered that CNH would lead evidence first on the remitted liability issues, as they arose from CNH's appeal.

The Tribunal also ordered that the liability and damages phases of the hearing, which had previously been bifurcated, be re-joined to avoid unnecessary delay and prejudice, noting that the original reasons for bifurcation no longer existed.

The applicant farm implement dealer brought a dispute against the respondent manufacturer regarding the end of their 19-year business relationship and warranty repair reimbursements.

The Tribunal divided the hearing into two phases, with Phase 1 focusing on liability.

The Tribunal found that the manufacturer did not breach section 18 of the Farm Implements Act regarding warranty reimbursements, as it paid the dealer in accordance with their existing agreement.

However, the Tribunal found that the manufacturer breached Ontario Regulation 123/06 by refusing to renew the dealership agreement, as the Regulation removed the manufacturer's contractual right to unilaterally non-renew and required that renewal approval not be unreasonably withheld.

The applicant farm equipment dealer brought a motion for production and discovery against a non-party trade association, seeking confidential market share data to challenge the respondent manufacturer's termination of their dealership agreement.

The Tribunal dismissed the motion, finding the requested data was protected by the common law privilege of confidentiality and the applicant failed to establish the relevance and importance of the documents.

The Tribunal also refused leave to examine the non-party for discovery, noting it would cause undue delay and expense.

The applicant was ordered to pay the non-party's costs of the motion.

At a pre-hearing conference, the Tribunal addressed two contentious issues regarding evidence and discovery.

First, an intervener sought to file additional confidential documents after the deadline; the Tribunal directed them to bring a motion for leave.

Second, the appellant sought market data from another intervener who was treated as a non-party for discovery purposes; the Tribunal directed the appellant to bring a motion for third-party production under the Rules of Civil Procedure.

The Tribunal also issued orders on consent regarding expert reports, discovery undertakings, and scheduling.

The appellant appealed a summary judgment dismissing his claim against the respondent Brinac.

The motion judge had found the appellant's evidence to be so incredible that no reasonable trier of fact could accept it.

The Court of Appeal agreed, finding no genuine issue requiring a trial, and dismissed the appeal with costs fixed at $10,000.

The appellant appealed a trial judgment finding it breached its contractual obligations to develop a product and use best efforts to meet time goals.

The Court of Appeal dismissed the appeal, finding ample evidence to support the trial judge's conclusions that the respondent received no value and the breaches were not condoned.

The court found no palpable and overriding error.

The appellants appealed an order striking their statement of claim against the respondent municipality.

The appellants argued the motion judge should have considered their motion to amend the statement of claim before striking it.

The Court of Appeal agreed but found the motion to amend would have failed due to inordinate, unexplained delay and prejudice to the respondent, including the expiry of limitation periods.

The unamended statement of claim disclosed no cause of action against the respondent.

The appeal was dismissed.

The appellant appealed a trial decision regarding his entitlement to commission on a life insurance policy.

The trial judge found that the second policy was a new policy, not a replacement policy, and that the appellant was not responsible for its creation.

The trial judge also found no bad faith on the part of the respondents.

The Court of Appeal upheld the trial judge's findings, noting that the 25 percent commission received by the appellant was a realistic compromise.

The appeal was dismissed with costs.