William Foster Kelly

The plaintiff, a 55-year-old Night Shift Supervisor with 17 years of service, sued for wrongful dismissal after being terminated for cause without notice.

The employer alleged the plaintiff engaged in time theft and fraud by 'topping up' employees' hours.

The court found that the 'topping up' practice was a long-standing, unwritten institutional practice used by all supervisors to align with a union contract guaranteeing 40 hours of work per week.

The court concluded the employer failed to establish just cause for termination.

The plaintiff was awarded 19 months' pay in lieu of notice, plus an additional 14 months' extended notice due to the employer's bad faith conduct during the dismissal, for a total of 33 months' notice.

The defendants brought a motion to dismiss the plaintiff's construction lien action for delay under section 47 of the Construction Act and Rule 24.

The action had been delayed for seven years, partly due to an ill-conceived and legally impossible attempt to transfer the lien action to the Small Claims Court.

The court found that despite the plaintiff's egregious delay, a fair trial was still possible as the issues were simple and the defendants' claimed prejudice was unrelated to the delay.

The motion was dismissed, but the court awarded $1,500 in costs to the unsuccessful defendants due to the plaintiff's failure to advance the claim.

The applicant brought a motion seeking an order for his 99-year-old mother to undergo a capacity assessment pursuant to s. 105 of the Courts of Justice Act, and for the continuation of the Estate Trustee During Litigation (ETDL).

The applicant raised concerns about his mother's capacity to act as estate trustee following her examination out of court, where she provided non-responsive answers and demonstrated a lack of understanding of the estate's multi-million dollar debts.

The court found that the mother's capacity was in issue and ordered the assessment, balancing her privacy rights against the need to protect the vulnerable estate.

The court also granted a mandatory injunction to continue the ETDL's mandate to maintain the status quo pending the capacity assessment and the main application.

The plaintiffs sought summary judgment for damages arising from the defendants' anticipatory repudiation of an agreement to purchase a waterfront property.

The plaintiffs resold the property for $325,000 less than the original contract price and claimed the difference plus additional commission costs as damages.

The court determined the proper assessment date for damages was the intended closing date of the original agreement.

However, the court found that the resale price alone was insufficient to prove market value in these circumstances and that there was a genuine issue regarding mitigation.

The court directed the parties to file further expert evidence on market value and mitigation to allow the damages to be determined under the court's enhanced fact-finding powers on summary judgment.

The applicant lawyer brought a motion to release funds held in trust to his client, a subcontractor who had registered a construction lien.

The respondent contractor had paid the funds into trust to discharge the lien but argued the payment was akin to security paid into court and should be returned since the limitation period for the subcontractor to perfect the lien had expired.

The court found that the funds were paid for the benefit of the subcontractor subject to any claims by the contractor, and since the contractor failed to bring a claim within the limitation period, the funds constituted a trust under s. 8 of the Construction Lien Act and were ordered released to the subcontractor.

The appellant, a farm property owner, sought to terminate a three-year farm lease with the respondents after the first crop season, claiming the respondents failed to provide chemical fertilizer application rates in the form she contended was required by the lease.

The trial judge found the appellant was not entitled to terminate the lease and awarded the respondents damages of $64,051.02 for lost profits from the 2013 and 2014 crop seasons.

The Court of Appeal upheld the trial decision, finding that the lease did not contain a provision permitting early termination for this alleged breach, and that the respondents' handwritten disclosure of application rates was adequate performance.

The appellant appealed a Small Claims Court decision, arguing the judge erred in finding its liquidated damages clause was a penalty.

The Divisional Court dismissed the appeal, noting the key holding below was a factual finding based on credibility that the contract never came into force.

As the contract never commenced, the liquidated damages clause did not apply, rendering the penalty finding obiter.

The court declined to provide guidance on the law of penalties, noting the uncertainty arose from Small Claims Court judges finding the clause produced inequitable results on specific facts.

The Plaintiff, Fourteen Estates Limited, brought a motion to have two separate actions (a contract dispute/lien action and a libel action) share common processes and proceed on a common timetable.

The Defendant, Mandy Marie Jensen, opposed the motion, arguing it would complicate and delay the lien action and increase costs due to separate counsel.

The court, applying Rule 6.01 of the Rules of Civil Procedure, found significant factual overlap concerning the quality of construction work in both actions.

The court determined that sharing common processes would lead to efficiency and substantial cost savings for all parties, outweighing the defendant's concerns.

The motion was granted, and the parties were ordered to prepare a revised common timetable.

The plaintiff sought summary judgment for damages for breach of an employment contract, alleging entitlement to 180 days' notice or pay in lieu upon termination.

The defendant denied this, claiming the contract provided for Canada Labour Code minimums and that the plaintiff's relied-upon "Schedule A" was a forgery.

The court found significant discrepancies in the plaintiff's evidence regarding Schedule A, suggesting it was forged and not part of the original agreement.

However, due to unresolved questions regarding other email exchanges and the potential for inadvertent non-disclosure of electronic evidence, the court declined to grant summary judgment at this stage.

Instead, it issued directions for further document disclosure, cross-examinations, and a subsequent hearing to fully resolve the factual disputes.

The plaintiffs, who are farmers, entered into a three-year lease agreement to farm the defendant's land.

The defendant repudiated the lease after the first year, claiming she signed it under duress and that the plaintiffs breached the agreement by failing to provide specific fertilizer application records.

The court rejected the duress defence, finding the defendant signed voluntarily and allowed the plaintiffs to farm the land for eight months.

The court also found that the alleged breach regarding fertilizer records did not amount to substantial non-performance justifying termination.

The plaintiffs were awarded damages for lost profits for the remaining two years of the lease.

The respondent employer filed a request to dismiss the human rights application for delay, arguing it was filed more than one year after the applicant's last day of work.

The applicant contended that his employment was terminated during a telephone call three days later, which fell within the one-year limitation period.

The Tribunal found that the application was timely because the applicant alleged a discriminatory incident occurred within the one-year period preceding the filing.

The request to dismiss for delay was denied.

The applicants sought an assessment of their former lawyer's accounts, the release of their file, and a stay of enforcement of an $80,000 mortgage given to the lawyer's spouse for legal fees.

The court found no special circumstances to justify assessing 14 accounts rendered prior to November 2012, except for a limited review of an alleged double-billing error.

The court ordered the lawyer to release the file, finding the solicitor's lien was lost because the lawyer had terminated the retainer.

Enforcement of the mortgage was stayed pending the outcome of the assessments.

The plaintiff school board sued the appellant and his son after the son allegedly set fire to a school.

The claim against the appellant was for negligent supervision.

The appellant's homeowner's insurer refused to defend him, relying on an exclusion clause for bodily injury or property damage caused by any intentional or criminal act or failure to act.

The motion judge held the insurer had no duty to defend.

The Court of Appeal allowed the appeal, finding that the exclusion clause only applies to intentional or criminal failures to act, and that the negligence claim against the appellant was not derivative of the son's intentional tort.

The appellant, a motor vehicle salesperson, appealed a decision of the Licence Appeal Tribunal directing the Registrar to revoke his registration.

The revocation followed the appellant's criminal conviction for counselling a customer to commit arson to destroy a leased vehicle.

The Divisional Court applied the reasonableness standard of review and found that the Tribunal's decision was fully supported by the evidence.

The court held that a single isolated mistake involving a serious industry-related criminal offence could reasonably support the belief that the appellant would not carry on business with honesty and integrity.

The appeal was dismissed.

The appellants appealed a judgment finding them in breach of a vehicle lease for failing to maintain insurance.

The Court of Appeal dismissed the appeal, holding that the respondent was entitled to act on the default and was not obligated to exercise its option to place the insurance itself or accept proposed replacement insurance, especially after learning the entities arranging the insurance were under investigation for fraud.

The appellants appealed an order, conceding that the material did not disclose a genuine issue for trial but arguing the motion judge should have granted an adjournment.

The Court of Appeal dismissed the appeal, noting that counsel could not identify any genuine issue for trial and finding no substantial wrong or miscarriage of justice.

The appellant appealed an order of the motion judge who declined to enforce a settlement.

The Court of Appeal dismissed the appeal, finding there was ample evidence to support the motion judge's findings of fact and exercise of discretion.

The appellant appealed a judgment, arguing that the respondent's claim was barred by cause of action estoppel due to an earlier small claims court action.

The Court of Appeal dismissed the appeal, finding that cause of action estoppel did not apply because the earlier action was resolved by a settlement without a court determination or releases.

Furthermore, the respondent was not required to assert its complaint as a counterclaim in the small claims court, as it would have exceeded the monetary jurisdiction.