Alan B. Dryer

The appellant, 2708959 Ontario Inc., appealed the dismissal of its application regarding four structures encroaching on a municipal road allowance in Stratford.

The Court of Appeal upheld the application judge’s finding that the City of Stratford had not expressly or tacitly approved the encroachments when the building and site plan drawings were approved in 1998.

The court found that the onus was on the original proponent and their advisors to bring the encroachments to the City’s attention, and that approval of site plans and occupancy permits did not constitute approval of the encroachments.

The appeal was dismissed, and costs were awarded to the City.

This is an appeal concerning a dispute over the retention of a deposit on a commercial property after the agreement of purchase and sale (APS) was terminated.

The motion judge had found that the respondents (buyers) were entitled to terminate the APS and recover their $350,000 deposit because the appellant (seller) failed to comply with requisitions to remove an open building permit, which constituted a valid objection to title.

The appellant's claims for the deposit and punitive damages were denied.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that the outstanding work permit entitled the respondents to terminate the APS, as it prevented the appellant from conveying good and marketable title.

The applicant corporation sought various forms of relief regarding building encroachments on a municipal road allowance in Stratford, Ontario, including a concrete retaining wall, a wooden access ramp, a concrete step, and a single-car parking space.

The applicant argued the encroachments were authorized, constituted legal non-conforming uses, or that the municipality was estopped from requiring an encroachment agreement.

The court dismissed the application, finding no explicit or tacit authorization for the encroachments, that they did not meet the criteria for legal non-conforming use, and that the elements for proprietary estoppel against the municipality were not established.

The applicant brought an application for judicial review and sought leave to appeal a decision of the Ontario Land Tribunal.

After the motion for leave to appeal was dismissed, the court issued a notice under Rule 2.1 of the Rules of Civil Procedure, noting the judicial review application appeared to raise the same issues.

The court found the application was an attempt to relitigate issues already decided and did not raise any factual errors outside the scope of the statutory appeal mechanism.

The application for judicial review was dismissed pursuant to Rule 2.1.01.

The moving party, a neighbourhood association, sought leave to appeal a decision of the Ontario Land Tribunal regarding a development application.

The Divisional Court dismissed the motion for leave to appeal without providing reasons, consistent with its usual practice.

On the issue of costs, the court rejected the moving party's argument that it was a public interest litigant, noting it was directly impacted by the development.

However, recognizing the association's lack of assets, the court reduced the requested costs of $32,272.16 and ordered the moving party to pay $10,000 to the responding developers.

The court also directed the Registrar to issue a notice under Rule 2.1 regarding the related application for judicial review.

The Landlord (Applicant) sought to terminate a commercial lease, arguing that the tenant's option to renew was void for uncertainty due to missing terms regarding the exercising party, governing terms, and exercise manner.

The Tenant (Respondent) contended the option was clear and enforceable.

The court found that the issue was properly determinable by application and, applying principles of contract interpretation including a holistic reading, consideration of the factual matrix, and the contra proferentem rule, determined that the option to renew was valid and enforceable by the Tenant.

The Landlord's application was dismissed, and the Tenant was granted peaceful occupation under the renewed term.

The plaintiff, Batavia Developments Inc., brought a motion under Rule 6.01 to consolidate its action with an application launched by the defendant, Shakoor Mohsini.

The defendant opposed consolidation and sought a stay of the action.

The court found that the action and application arose from the same real estate transaction and involved common questions of law and fact, requiring expert evidence and resolution of conflicting evidence.

The court determined that the matter could not be properly decided on a paper record and that examinations under oath were necessary.

The plaintiff's motion for consolidation was granted, and the defendant's motion for a stay was denied, with the application being converted into an action.

The plaintiff seller and defendant buyers both moved for summary judgment in an action arising from a failed $7 million commercial real estate transaction.

The buyers refused to close and terminated the agreement because an outstanding work permit remained on title, which the seller failed to remove or insure over by the contractual deadline.

The seller claimed the buyers repudiated the contract in bad faith and sought forfeiture of the $350,000 deposit plus punitive damages.

The court found that the outstanding work permit was a legitimate concern and a valid objection to title, entitling the buyers to terminate the agreement.

The buyers' motion for summary judgment was granted, and the deposit was ordered returned to them.

The plaintiff landlord brought a motion for summary judgment to recover arrears of rent from the defendant commercial tenant.

The tenant argued it was relieved of its obligation to pay rent because the COVID-19 pandemic and resulting government restrictions triggered the lease's force majeure clause or frustrated the contract.

The court found that while the government restrictions triggered the force majeure clause, the clause explicitly did not excuse the tenant from paying rent.

The court also held that the doctrine of frustration did not apply because the lease did not require the tenant to operate a retail store, the disruptions were temporary, and the force majeure clause demonstrated the parties had contemplated such circumstances.

Summary judgment was granted in favour of the landlord.

The plaintiff and defendants were 50 percent owners of a corporation whose sole asset was a property intended for gas station development.

Following a breakdown in their relationship, the defendants sold the property to a third party without the plaintiff's consent.

The plaintiff brought a motion for an oppression remedy to remove the defendants from management, while the defendants sought to wind up the corporation.

The court dismissed both requests, finding no oppressive conduct and concluding that a winding up was not just and equitable at this stage.

The court granted a motion to rescind the sale of the property and ordered the return of the purchase funds held in court, less outstanding costs owed to the plaintiff.

Following the dismissal of an application regarding the removal of an illegally installed third-party rooftop sign, the successful respondent sought costs.

The applicant argued for no costs or a modest award, claiming the case involved issues of public importance.

The court rejected this argument, finding the legal issues straightforward and not novel.

The court awarded the respondent costs of $20,613.60, finding the amount reasonable for the hard-fought litigation.

The applicant sought to set aside a Notice of Violation issued by the City requiring the removal of a rooftop billboard sign.

The applicant argued the sign was a legal non-conforming use because a permit had been issued in 1959.

The court dismissed the application, finding that the original sign was replaced between 1978 and 1983 without a permit, and further substantial alterations were made in 2013 without a permit.

As the sign was never lawfully erected under the applicable by-laws, it did not qualify as a legal non-conforming use, and the City was not estopped from enforcing its sign by-law.

The plaintiffs brought a motion for leave to amend their Statement of Claim to add new claims under the Fraudulent Conveyances Act and the Assignments and Preferences Act, as well as claims for unjust enrichment and constructive trust.

The proposed amendments arose from a telephone conversation in which the individual defendant allegedly stated his intention to make an assignment in bankruptcy and admitted to transferring funds to avoid paying the plaintiffs.

The defendants opposed the motion, arguing the proposed amendments lacked sufficient particulars.

The court granted leave to amend for the statutory claims, finding they were legally tenable and sufficiently particularized given the plaintiffs' current knowledge.

However, the court denied the amendments for unjust enrichment and constructive trust, with leave to amend, as they lacked sufficient material facts connecting the allegations to the elements of those claims.

In the context of CCAA proceedings for Sears Canada, the Monitor brought a motion to enforce a settlement agreement with several former landlords regarding the valuation of their claims.

The landlords disputed the Monitor's calculation of their claims under the agreed Landlord Claim Formula and sought disclosure of the underlying calculations.

The court held that the landlords were entitled to the disclosure and could dispute the calculations, but only using the sources permitted by the formula.

Additionally, the court ordered one landlord, Primaris, to repay $10,000 it had unilaterally withheld for legal fees when returning a mistaken payment.

Metropolitan Toronto Condominium Corporation No 1371 (MTCC 1371) brought a summary judgment motion to dismiss Jermark Plumbing & Mechanical Services Ltd.'s (Jermark) claim for breach of contract and duties of good faith.

Jermark alleged it was the winning bidder for a piping replacement project and that MTCC 1371 breached its obligations by awarding the contract to another company after unit owner objections and a court order.

The court dismissed the summary judgment motion, finding genuine issues requiring a trial, particularly concerning contract formation, the exact terms of any agreement, and good faith performance, which depend heavily on witness credibility and the factual narrative.

The defendant 2623559 Ontario Inc. appealed a Master's decision dismissing its motion to discharge a certificate of pending litigation on a property.

The plaintiff, a 50% owner of the vendor corporation (2425779 Ontario Inc.), alleged the sale to 2623559 Ontario Inc. was fraudulent and below market value.

The court upheld the Master's decision, finding no palpable and overriding error or error of law.

The Master correctly applied the test for discharging a CPL, considering the plaintiff's reasonable claim to an interest in land, the alleged "badges of fraud" in the transaction, and the "Dhunna factors" regarding the uniqueness of the land and the inadequacy of damages as an alternative remedy.

The court also determined that the alternative security paid into court was insufficient to protect the plaintiff's potential interest, which was significantly higher than the amount secured.

The appeal was dismissed with costs awarded to the plaintiff.

The Landlord, Varsity Investments Inc., sued the Tenant, 1666862 Ontario Inc., and its guarantors for breach of a commercial lease, claiming accelerated rent and damages after the Tenant ceased operations.

The Landlord alleged the Tenant was in default due to insolvency, abandonment, and repudiation.

The Tenant counterclaimed for wrongful termination of the lease, arguing the Landlord's distress was illegal.

The court found that the Tenant was not in breach of the lease, did not repudiate it, and that the Landlord's actions of changing locks and purporting to distrain for non-existent arrears constituted an illegal distress, thereby terminating the lease.

The Landlord's action was dismissed, and the Tenant's counterclaim for damages was allowed.

The defendant 2623559 Ontario Inc. ("262") moved for an order discharging a certificate of pending litigation (CPL) and a notice registered against a property it purchased.

The plaintiff, Goyal, opposed the motion, alleging the sale was fraudulent and sought rescission.

The court upheld the CPL, finding a triable issue regarding an interest in land and sufficient "badges of fraud" to justify its maintenance.

The decision applied the Dhunna factors and the holistic equitable test, concluding that the equities favored maintaining the CPL.

The court clarified the terms of an easement previously granted to Vivekanandan over Terzian's property.

The dispute centered on the precise description of the easement's southern boundary, specifically how it interacts with a "grassy area" at the northern end of the island.

The court adopted Vivekanandan's interpretation, ruling that the easement's southern boundary follows the diagonal line of the grassy island, rather than a squared-off line proposed by Terzian, to ensure the easement includes all intended paved areas.

The appellant was wholly unsuccessful on appeal.

The respondent sought partial indemnity costs of $8,301.47 including HST for the appeal.

The court, considering Rule 57.01 of the Rules of Civil Procedure, found the requested costs to be fair, reasonable, and proportionate, and ordered the appellant to pay them forthwith to the respondent.