Todd J. Burke

During a scheduled motion hearing, the plaintiffs sought an adjournment and additional procedural orders, including the examination of corporate legal counsel whose affidavit was attached to another affiant’s evidence and permission to communicate verbally with a former lawyer involved in the matter.

The defendants did not oppose the adjournment but objected to the additional requests.

The court adjourned the motion and imposed a timetable for cross-examinations and filings during the adjournment period.

The court declined to order the requested examination of the corporate counsel, finding the examination of the primary affiant sufficient.

Due to concerns about prior abusive voicemail communications, the court ordered that all communications with specified individuals occur only in writing.

The plaintiff purchaser brought a motion for a certificate of pending litigation (CPL) under s. 103 of the Courts of Justice Act in an action seeking specific performance of an agreement of purchase and sale for four residential apartment buildings.

The court assessed whether the plaintiff had a reasonable claim to an interest in land and whether equitable considerations justified granting the CPL.

After reviewing extensive documentary evidence and cross‑examinations, the court found the plaintiff’s case for specific performance weak, particularly due to the failure to waive conditions within the contractual deadline and the absence of clear evidence that the conditional period had been extended.

The court also held that damages would likely be an adequate remedy because the transaction was a commercial investment acquisition rather than a uniquely valuable property.

Exercising its discretion, the court refused the CPL while granting leave to amend the claim to add damages and ordering notice of any sale, transfer, or refinancing of the property during the litigation.

The defendants brought a motion for summary judgment seeking dismissal of a negligence and breach of fiduciary duty claim arising from unclaimed bank draft proceeds that had been transferred to the Bank of Canada pursuant to the Bank Act after remaining unclaimed for ten years.

The plaintiff had recovered the proceeds from the Bank of Canada but claimed damages for lost investment opportunities and expenses incurred in proving entitlement to the funds.

The court held that s. 438(2) of the Bank Act releases a bank from all liability “in respect of” an instrument once the unclaimed proceeds are transferred to the Bank of Canada.

The plaintiff’s claims for costs incurred in recovering the funds and alleged lost interest arose from the bank draft itself and therefore fell within the statutory release.

Summary judgment was granted dismissing the action.

The moving party brought an application seeking dismissal of the respondent’s action concerning leasehold property.

At the hearing, counsel for the respondent requested an adjournment citing prolonged illness and medical incapacity.

The court reviewed the procedural history, noting repeated adjournments, failure to comply with filing deadlines, and unpaid costs previously ordered against the respondent.

Despite expressing significant concern about counsel’s conduct and lack of diligence, the court granted the adjournment due to the medical circumstances.

The adjournment was subject to strict conditions including substantial indemnity costs, compliance with a new timetable, production of updated medical documentation, and a requirement that alternate counsel be retained if counsel remained unable to proceed.

The defendants brought a motion seeking particulars of allegations in an amended statement of claim relating to copyright infringement in computer software.

The court held that the allegations, together with the particulars already provided, were not bald and that the defendants bore the onus of establishing that the requested particulars were not within their knowledge and were necessary to plead a defence.

The only evidence filed was an affidavit from the defendants’ lawyers, which the court found insufficient to satisfy that burden.

The court declined to exercise its discretion under Rule 25.10 of the Rules of Civil Procedure to order particulars.

The motion was dismissed with costs, subject to a temporary stay permitting the defendants to file further affidavit evidence and potentially have the motion return.

The application judge failed to provide any reasons for his decision, making appellate review impossible.

The Court of Appeal allowed the appeal and remitted the matter to a different judge of the Superior Court.

The appellants appealed a decision declaring that the respondent was not obligated to continue paying a 1% royalty on the manufacture and sale of products in jurisdictions where the underlying patents had expired.

The Court of Appeal upheld the application judge's interpretation of the commercial contract, finding that royalties were only payable where patent protection existed.

The Court also rejected the appellants' arguments that post-agreement inventions were covered by the contract and that the respondent was estopped from ceasing payments due to past inadvertent overpayments.

The appeal was dismissed.

The plaintiffs sued the defendant engineers for professional negligence regarding a foundation design.

The defendants moved for summary judgment based on the expiry of the one-year limitation period under the Professional Engineers Act.

The motion judge dismissed the summary judgment motion, finding a genuine issue for trial regarding when the plaintiffs discovered the material facts, but simultaneously granted the plaintiffs' cross-motion to extend the limitation period.

The Court of Appeal allowed the defendants' appeal, holding that the order extending the limitation period was a final order and that the motion judge erred by resolving the limitation extension issue while acknowledging a genuine issue for trial existed regarding the plaintiffs' knowledge of the facts.

The appellant appealed a summary judgment dismissing his action against his former wife, daughter, and a business college.

He alleged that the respondents illegally took the company from him, claiming certain documents were forged.

The Court of Appeal upheld the motions judge's finding that the appellant provided no evidence to substantiate his claims, noting that he had previously declared bankruptcy and sworn he owned no shares.

The appeal was dismissed with costs.

The appellants appealed the dismissal of a medical malpractice action arising from the death of a patient undergoing treatment for tuberculosis.

The appeal focused on recusal, alleged negligence in the physician’s monitoring and follow-up system, and causation.

The court held that, although the trial judge had improperly received information caught by Rule 50.03, the circumstances did not give rise to a reasonable apprehension of bias requiring recusal.

The court further held there was no basis to disturb the findings that the follow-up system did not establish negligence on the physician’s part and that any failure of follow-up did not cause or contribute to the death, because the accepted evidence showed no signs of hepatitis at the critical January assessment.