A. Habas

The plaintiff brought a motion to amend its statement of claim to correct a misnomer in its name, changing it from 'Urban Life Residential, In Trust' to 'Urban Life Residential Inc., In Trust', and to extend the time to file a trial record.

The defendant opposed and brought a cross-motion for summary judgment dismissing the action, security for costs, and to discharge a certificate of pending litigation (CPL).

The court granted the plaintiff's motion to amend, finding it was a case of misnomer and the defendant was not misled.

The court dismissed the defendant's cross-motion for summary judgment, finding genuine issues for trial regarding the identity of the purchaser and the validity of the trust.

The requests for security for costs and discharging the CPL were also dismissed.

The plaintiffs brought an action against the defendant, the sister of one of the plaintiffs, regarding the allocation of proceeds from the sale of a jointly owned property, damages for ouster, and conversion of personal property.

The defendant counterclaimed for unjust enrichment, alleging she was a 50% beneficial owner of the plaintiffs' restaurant businesses under a joint family venture.

The Superior Court of Justice dismissed the counterclaim, finding no joint family venture existed in this extended family context and that the defendant failed to prove she made a direct financial contribution.

The court granted the plaintiffs' action in part, awarding damages for the defendant's ouster of the plaintiffs from the joint property and for the conversion of various personal items, including a grand piano.

The defendant brought a motion to set aside a default judgment and noting in default obtained by the plaintiff in an action arising from a marketing agreement.

The defendant failed to defend the action because it had not updated its corporate profile address and did not receive the statement of claim.

The court found that although the motion was not brought promptly, the defendant had a plausible explanation for the default and established an arguable defence of set-off on the merits.

The motion was granted and the default judgment was set aside with no costs awarded.

The appellant appealed a decision of the Superior Court of Justice.

The Court of Appeal found no error in the motion judge's conclusion and dismissed the appeal with costs fixed at $8,000 inclusive of disbursements and HST, payable $4,000 to each respondent.

The applicant buyer and respondent seller entered into an agreement of purchase and sale for commercial real estate.

The agreement included a financing condition that required the buyer to pay a second deposit 'at the time' of notifying the seller that the condition was waived.

The buyer waived the condition late in the evening on the deadline date but did not provide the second deposit until the following afternoon.

The seller took the position that the agreement was terminated.

The court found that, in the context of the factual matrix and the 'time is of the essence' clause, the parties intended for the deposit to be paid contemporaneously with the waiver.

The buyer's application for specific performance was dismissed, and the seller's application for a declaration that the agreement was void was granted.

The applicant, Claudio Posocco, sought a declaration that his guarantee for a mortgage was discharged.

This application was a re-hearing ordered by the Court of Appeal, based on fresh evidence of a foreclosure judgment obtained by a prior mortgagee.

Posocco argued that the foreclosure extinguished his guarantee for a junior mortgage.

The court dismissed the application, distinguishing the facts from *Rushton v. Industrial Development Bank* by noting that the mortgages were distinct, not a single mortgage encompassing multiple parcels.

Relying on *Isman v. Sinnott*, the court held that foreclosure of a first mortgage by a party who also held a junior mortgage did not extinguish the rights under the junior mortgage's covenant.

Additionally, the court found that the guarantee's contractual terms explicitly made Posocco liable as a principal debtor even in the event of prior foreclosure, and that the property had not yet been disposed of, leaving open the potential for reconveyance.

The applicant sought a declaration that a personal guarantee was void and unenforceable after the creditor postponed a mortgage securing the underlying debt without the guarantor’s knowledge or consent.

The applicant argued that a guarantor is discharged when a creditor materially alters the contract governing the debt.

The court held that guarantors may contract out of common law protections and that the wording of the guarantee expressly permitted the creditor to vary or modify security without releasing the guarantor.

Interpreting the guarantee’s broad language, the court found the parties intended the guarantor’s liability to remain despite alterations to the security arrangements.

The application to void the guarantee and set aside the prior judgment was dismissed.

Several defendants in an insurer’s civil fraud action brought motions seeking full particulars of allegations relating to allegedly inflated or fabricated accident benefit invoices submitted through medical service providers.

The insurer alleged improper billing practices involving treatment plans and treatment invoices but refused to provide detailed particulars, asserting privacy concerns under the Personal Health Information Protection Act and offering only a spreadsheet during discovery.

The court held that the pleadings lacked sufficient material facts and that allegations amounting to misrepresentation require full particulars under Rule 25.06(8) of the Rules of Civil Procedure.

The court rejected the argument that the issue became moot after the insurer served an amended pleading removing the words “fraud” and “collusion”, finding the core allegations still required particularization.

The insurer was ordered to deliver the requested particulars within 30 days.

The corporate plaintiff brought a motion seeking leave under Rule 15.01(2) of the Rules of Civil Procedure to permit its president, who was not a lawyer, to represent the corporation in a construction lien action and also sought to set aside a noting in default on a counterclaim.

The court held that a corporation must normally be represented by counsel and that leave for non-lawyer representation requires evidence both of financial inability to retain counsel and of the proposed representative’s ability to conduct the litigation.

The court found the evidence of financial inability inadequate and concluded the proposed representative’s conduct demonstrated he was incapable of responsibly managing complex civil litigation.

The court further held that under s. 54 of the Construction Lien Act a defendant seeking to set aside default must provide evidence of a meritorious defence.

Because no such evidence was provided, the motion to set aside the default was dismissed with prejudice.

The applicant, a 10% minority shareholder in a landlord corporation, brought an oppression application against the majority shareholders.

The court determined preliminary issues, finding that the majority shareholders acted oppressively by leasing the corporation's property to their own related business at less than fair market value and failing to enforce the lease terms.

The court also found accounting irregularities, including the landlord corporation paying expenses that should have been paid by the tenant, and ordered remedies including the repayment of improper expenses and a buyout of the applicant's shares without a minority discount.