Adam J. Stephens

The applicant property owner sought an order under s. 61(1) of the Conveyancing and Law of Property Act to modify restrictive covenants registered against its commercial property for the benefit of the adjoining Home Depot lands.

The restrictions prohibited the sale of various home improvement products to prevent competition with Home Depot, subject to an 'incidental sale' exception.

The applicant argued the restrictions were spent because a previously planned 'big box' development did not proceed, and sought to expand the 'incidental sale' square footage allowance to facilitate its current commercial condominium development.

The court dismissed the application, holding that under the strict test in *Re Lime*, s. 61(1) only permits modification or discharge where a restriction is spent or of no practical value, and cannot be used to reallocate rights between parties based on a balance of convenience or economic efficiency.

A case conference endorsement in a commercial dispute over a $10 million commission.

The plaintiff sought to proceed to mediation, which the defendants opposed.

The court declined to order mediation for unwilling commercial parties, noting it would waste time and money.

The court issued general case management directions and specific deadlines for the examination for discovery of a third party and for the defendants to answer overdue undertakings.

A seller and buyer entered into an agreement for the purchase and sale of a warehouse for $10,225,000.

The buyer intended to establish a licensed marijuana grow-op business.

The agreement provided for an initial deposit of $300,000, and the buyer paid an additional deposit of $450,000 to obtain a six-month extension of the closing date.

When the buyer failed to obtain Health Canada licensing and financing and failed to close, the seller sought to forfeit the entire $750,000 deposit.

The application judge found the forfeiture unconscionable and reduced it to $350,000.

The Court of Appeal reversed, holding that the deposit was not grossly disproportionate and that unconscionability must be an exceptional finding strongly compelled by the facts.

The court restored the full contractual forfeiture of $750,000.

The applicant vendor sought a declaration that the purchaser was in breach of an Agreement of Purchase and Sale for commercial property and that the vendor was entitled to retain the full $750,000 deposit.

The purchaser failed to close due to lack of financing and inability to obtain a Health Canada license for its intended marijuana grow-op business.

The court found the purchaser breached its good faith obligation and had no legal justification for not closing.

However, the court granted the purchaser relief from forfeiture under Section 98 of the Courts of Justice Act, finding the total deposit of $750,000 to be unconscionable in the absence of evidence of damages suffered by the vendor.

The forfeited sum was reduced to $350,000.

The appellant appealed a trial judge's finding that its claim for breach of contract was statute-barred.

The Court of Appeal agreed that the claim was discoverable when the appellant received an arborist report detailing the respondent's substandard work.

Because the action was commenced more than two years after the receipt of the report, the appeal was dismissed.

The plaintiff, a resident of Switzerland with no assets in Ontario, sought court approval for a third-party Litigation Funding Agreement (LFA) to pursue a complex commercial action against the defendants.

The defendants opposed the LFA, arguing it could allow the funder to recover more than 50 percent of the proceeds, and brought a cross-motion for security for costs.

The court found that while third-party funding is not per se objectionable in commercial litigation, the specific terms of this LFA were unfair to the plaintiff and constituted champerty and maintenance.

The motion to approve the LFA was dismissed without prejudice, and the cross-motion for security for costs was deferred.

The appellant applied for a refund of property taxes for the 2003, 2004, and 2005 taxation years, alleging the municipality made a calculation error in 2001 that carried forward.

The municipality argued the application was barred because it was brought under a section limited to clerical errors and the error originated under previous legislation.

The Assessment Review Board found that the appellant's application properly engaged the broader remedial provisions for factual errors, and that the failure to use correct inputs constituted a mechanical or clerical error in the calculation of taxes for the years appealed.

The Board ordered the municipality to refund the overcharged amounts totaling approximately $399,500.

In a commercial property boundary dispute, the applicant sought declarations of ownership over a disputed strip of land and authority to relocate a chain link fence to the surveyed property line.

The respondent argued the application was barred by abuse of process due to earlier litigation between predecessors in title and alternatively relied on adverse possession under the Real Property Limitations Act.

The court held that the respondent had not established the required ten years of adverse possession before the land was converted to Land Titles Qualified, and that s. 51(1) of the Land Titles Act barred acquisition of adverse interests thereafter.

The earlier action concerned easement and access issues, not ownership of the disputed lands, so the application was not an abuse of process.

Declaratory and injunctive relief were granted, with implementation delayed for sixty days.

The plaintiffs brought a motion to adjourn an eight‑week civil trial scheduled on the running list while appeals were pending concerning a refusal to amend the statement of claim and to admit late expert valuation reports.

The defendants opposed the adjournment, arguing the appeals would not materially affect the trial and proposing procedural alternatives such as hearing evidence and awaiting appellate outcomes or bifurcating liability and damages.

Applying the principles governing adjournments, including the objective of deciding matters on their substantive merits and considerations of prejudice and fairness, the court found the pending appeals could significantly affect the pleadings and expert evidence at trial.

The court concluded that proceeding before those issues were resolved risked inefficient and potentially unfair proceedings.

The trial was therefore adjourned pending the appellate process.

The applicant sought judicial review of an Assessment Review Board (ARB) decision dismissing its tax appeals for the 2003 and 2004 tax years as out of time.

The Divisional Court found that the ARB's interpretation of the limitation period under s. 357(3) of the Municipal Act was unreasonable because it failed to balance competing policy objectives of finality and equity, and failed to properly analyze the statutory provisions.

The court set aside the ARB's decision and remitted the matter for reconsideration, holding that the limitation period runs from the year the taxes are levied, not the calendar year to which they relate.

The plaintiffs brought a motion for approval of a settlement in a certified securities class action, approval of class counsel's fees, and payment of honoraria to the representative plaintiffs.

The action alleged misrepresentations and failure to disclose material changes regarding a major contract.

The court reviewed the proposed settlement of USD$3.5 million, the requested class counsel fees of 30% of the recovery, and the honoraria.

Applying the relevant legal tests, the court found the settlement to be fair, reasonable, and in the best interests of the class, and approved the settlement, fees, and honoraria.

The appellant, Municipal Property Assessment Corporation, appealed a decision exempting certain machinery and equipment at hydro-electric generating stations from real property taxation under the Assessment Act.

The appellant argued the application judge erred by applying the rejected 'integration test' to characterize penstocks and surge tanks as equipment rather than structures, and by finding that maintenance and safety items were used for producing electric power.

The Divisional Court dismissed the appeal, finding the application judge correctly applied the holistic approach from Metals Alloys and Nabisco, and correctly concluded that items need not be directly involved in the transformation of water to electricity to qualify for the exemption.

The Ontario College of Pharmacists brought an application for declaratory and injunctive relief against the respondents, who operated an internet pharmacy business selling prescription drugs to consumers outside Canada.

The respondents argued that their corporate restructuring, which involved an Ontario call centre processing orders for a Belize corporation, removed them from the College's jurisdiction.

The court found a sufficient connection to Ontario to engage the College's jurisdiction and determined that the sale of drugs was taking place in Ontario.

The court held that the respondents were operating a pharmacy without accreditation, selling drugs without pharmacists, and improperly using pharmacy designations, in breach of the Drug and Pharmacies Regulation Act and related legislation.

A permanent injunction was granted.

The appellant appealed a judgment dismissing its application for a determination that the respondent tenant must pay $431,000 for parking lot repaving under its lease.

The Court of Appeal dismissed the appeal, finding no reason to interfere with the application judge's conclusion that the work significantly extended the life of the parking lot and reduced operating costs, which were factual findings entitled to substantial deference.

Following a successful motion striking a punitive damages claim in a proposed securities class proceeding, the defendants sought partial indemnity costs of approximately $43,000.

The plaintiff argued that no costs should be awarded because the motion raised a novel point of law concerning the availability of punitive damages under Part XXIII.1 of the Securities Act.

The court accepted that the issue was legally novel and reasonably contested, noting that existing case law did not clearly resolve the question.

Exercising its discretion, the court held that fairness justified departing from the usual costs rule.

No order as to costs was made.

The plaintiffs brought a proposed class action against the directors, officers, and advisors of a Delaware-incorporated company for alleged misrepresentations and failures to disclose under Part XXIII.1 of the Securities Act.

The defendants brought motions to strike the claim for punitive damages, strike the claim against a former director for failing to disclose a reasonable cause of action, and stay the action against the foreign financial advisors on jurisdictional grounds.

The court granted all motions, striking the punitive damages claim as inconsistent with the statutory scheme, striking the claim against the former director without leave to amend, and permanently staying the action against the foreign advisors as the court lacked jurisdiction simpliciter.

In an application concerning hydro-electric property tax exemptions under section 3(1), paragraph 18 of the Assessment Act, the court determined that most disputed station components qualified as machinery and equipment used for producing electricity for sale to the general public.

The court rejected a narrow interpretation requiring direct transformation use and held all power produced at the stations met the sale-to-general-public requirement.

The court also held the applicant could not rely on paragraph 17 as an alternative exemption route.

Due conflicting expert evidence, the scope of exempt foundations required further expert process and a trial on that issue.

The applicant landlord sought a declaration that a commercial tenant was required to pay its proportionate share of the cost of rehabilitating a shopping centre parking lot as additional rent under a lease provision requiring tenants to pay common area maintenance costs for repairs and maintenance.

The dispute turned on whether the parking lot rehabilitation constituted a repair or a capital expenditure under “accepted accounting practice.” After considering expert engineering and accounting evidence and principles drawn from GAAP and relevant case law, the court concluded that the work significantly extended the life of the parking lot and reduced operating costs, thereby enhancing its service potential.

The court held that the rehabilitation constituted a capital expenditure rather than a repair within the meaning of the lease.

Accordingly, the tenant was not responsible for the cost and was entitled to set-off amounts already paid.

The respondent property owner applied to the City of Ottawa for a reduction in property taxes, alleging a gross or manifest error in the assessment roll.

The City declined to hold a meeting or make a decision on the application.

The respondent successfully applied to the Divisional Court for an order of mandamus compelling the City Council to hold a meeting.

The City appealed.

The Court of Appeal allowed the appeal, finding that the Municipal Act, 2001 provides a statutory right of appeal to the Assessment Review Board when a municipal council fails to make a decision.

The court held that the respondent was required to exhaust this adequate alternative remedy before seeking judicial review.

The appellants sought to set aside a paragraph of the trial judgment finding oppression against one of the corporate appellants.

The Court of Appeal declined the request, noting the issue was not raised during oral argument and that there was ample evidence to support the trial judge's finding of oppression independent of a specific loan.

The appellants' request was dismissed.