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 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.

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.

The defendant, Promark Electronics Inc., appealed a Master's interlocutory order requiring it to produce financial documents (including financial statements and sales records for 2002-2016) and answer related questions on examinations for discovery.

The underlying action involved a claim by the plaintiff, Sanford Gray, for wrongful termination by constructive dismissal, alleging a unilateral reduction in his compensation package.

Promark's defence asserted an implied term in the employment agreement allowing it to vary compensation based on business objectives and economic circumstances, specifically profitability and sales diversification.

The Master found the requested financial documentation relevant to test Promark's defence and the plaintiff's counter-allegations regarding the true reasons for the compensation change.

The Superior Court upheld the Master's decision, finding no error of law, mixed fact and law, or fact, concluding that the financial information was relevant to the pleaded issues and that the Master's proportionality assessment was appropriate.

Following a judgment where Vivekanandan successfully established an easement and adverse possession over a disputed area, they sought costs on a substantial indemnity basis under Rule 49 of the Rules of Civil Procedure.

The court declined to award substantial indemnity, noting that Rule 49.10 is more appropriately applied to monetary judgments and that Vivekanandan was not entirely successful on all aspects of their claim.

The court awarded costs on a partial indemnity basis, finding the requested amount of $93,107.99 (including fees, HST, and disbursements) to be reasonable given the complexity and effort involved in the property title litigation, consistent with the principle of indemnity and reasonable expectations.

The plaintiff in a wrongful dismissal action moved for a further and better affidavit of documents and to compel answers to questions refused at discovery.

The plaintiff alleged constructive dismissal after the defendant unilaterally reduced his compensation package.

The defendant claimed it had unfettered discretion to vary the commission structure based on business realities, including profitability.

The court found the defendant's financial records relevant to test its claim regarding business realities and ordered production of financial books and records from 2000 to 2016.

The court also ordered the defendant's representative to answer most of the refused discovery questions, finding them relevant to the profit margin issue.

The plaintiff was awarded $8,000 in partial indemnity costs.

Appeal from a motion judge's decision dismissing the appellant's claim on the basis that it was statute-barred.

The motion judge found that the appellant knew or ought to have known of the claim within the limitation period.

The appellants argued the motion judge erred in his findings regarding when the appellant became aware of the claim.

The Court of Appeal upheld the motion judge's decision, finding no error and dismissing the appeal with costs awarded to the respondent.

The appellant appealed a judgment from the Superior Court of Justice dated June 17, 2016.

The parties settled the matter prior to the appeal hearing.

The appeal and application for leave to appeal costs were dismissed by consent, with costs awarded to the respondent in the amount of $25,000, all inclusive.

Following a successful summary judgment motion dismissing the plaintiff's claim for development charges as statute-barred, the defendants sought partial indemnity costs of $21,941.47.

The plaintiff argued the costs should be drastically reduced to $2,104.50, asserting the defendants unnecessarily focused on substantive defences rather than solely on the limitation period.

The court rejected this argument, finding that the underlying factual footprint had to be developed regardless of the focus, and that the defendants' costs were reasonably incurred.

The court fixed the defendants' costs at $17,500 all inclusive.