Alexander J. Freedman

The plaintiffs, Avante Automobile (2017) Corporation and Francesco Serpa, sought damages from BMW Canada Inc. for breach of statutory, contractual, and common law duties in relation to the purchase and operation of a BMW dealership.

The court found BMW Canada liable for failing to properly document an extension to complete required renovations and for not following the termination provisions of the Retailer Agreement.

However, the court preferred the defendant’s evidence on valuation and found no net recoverable damages.

The action was dismissed, subject to costs.

This decision addresses two motions: a Mareva injunction sought by CIM Mackenzie Creek Limited Partnership and Jiubin Feng against NSR Toronto Holdings Ltd., and a cross-motion by NSR Toronto Holdings Ltd. to stay CIM's counterclaim as an abuse of process.

CIM's Mareva injunction, based on alleged fraud by NSR in the sale of the Mackenzie Creek Project to Sunny Co., was dismissed due to lack of proof of fraud and no risk of asset dissipation.

NSR's cross-motion to stay CIM's counterclaim was granted because CIM failed to promptly disclose a settlement agreement with Sunny Co., which materially altered the litigation's adversarial landscape, constituting an abuse of process.

The court emphasized the strict disclosure requirements for such agreements.