Alexander Soutter

Following cross-motions for summary judgment where the plaintiff was successful in recovering the residual proceeds of a power of sale, the court determined costs and prejudgment interest.

The court awarded the plaintiff costs of $45,515.37, noting the plaintiff beat its Rule 49 offer and the defendants unreasonably rejected a settlement proposal.

The court also awarded prejudgment interest at 2% from the date of the power of sale.

The proposed appellant brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal concerning a pleading amendment, but granted leave to appeal concerning privilege and the real estate solicitor's file.

As success was divided, no costs were awarded.

Capital Sewer Servicing Inc. appealed a Superior Court decision that found it liable to indemnify and defend Crosslinx Transit Solutions Constructors under a subcontract.

The dispute arose from property damage claims by third parties during a light rail transit project.

Capital argued that Crosslinx, by undertaking to provide wrap-up insurance, had assumed the risk of such damages, and that the "hold harmless" clause did not include a duty to defend.

The Court of Appeal dismissed the appeal, affirming that a covenant to insure does not, as a matter of law, automatically transfer risk.

The court emphasized that contractual intent is derived from a holistic reading of the agreement, and found the subcontract's express indemnity provisions, coupled with the mutual intent clause, clearly imposed the obligation on Capital.

The "hold harmless" provision was also found to include a duty to defend, given the broad definition of "Claims" in the contract.

In the context of CCAA proceedings, the moving party sought an order declaring that the limitation period for its action against the debtor was suspended by a prior tolling order, or alternatively, an order lifting the stay of proceedings nunc pro tunc to regularize its action.

The court held that the tolling order did not apply to third-party claims against the debtor.

Furthermore, applying the Supreme Court's decision in Green, the court held it had no authority to grant a nunc pro tunc order lifting the stay because the moving party failed to seek leave before the limitation period expired.

The motion was dismissed.

The plaintiff sued for specific performance of an agreement of purchase and sale, alleging the defendants acted in bad faith by relying on a solicitor approval condition to annul the deal.

The plaintiff brought a motion seeking a ruling that the defendants impliedly waived solicitor-client privilege by pleading they acted in good faith on their solicitor's advice.

The court dismissed the motion, finding that the defendants did not base their defence on their state of mind, but merely answered the bad faith claim, and that the solicitor approval clause gave them an absolute right to cancel without waiving privilege over the solicitor's reasons.

The defendants brought a motion for leave to amend their statement of defence to withdraw an admission that they had entered into a conditional agreement of purchase and sale for a farm.

The plaintiff opposed the withdrawal.

The court applied the three-part test for withdrawing an admission and found that the proposed amendment raised a triable issue, as one of the three joint tenants had not signed the agreement.

The court also found that the admission was inadvertent and that there was no prejudice to the plaintiff, who had known from the beginning that the document was missing a signature.

The motion was granted.

The applicant, a dissenting shareholder in a corporate amalgamation, applied to the court to fix a fair value for his shares under s. 185 of the Business Corporations Act.

The respondent argued the application was out of time, but the court exercised its discretion to extend the deadline.

The court rejected the applicant's claimed value based on an informal statement by the CEO, as well as the respondent's heavily discounted offer.

Relying on the implied share value from the amalgamation exchange ratio, the court fixed the fair value at $0.236 per share, awarding the applicant $271,400 plus partial indemnity costs.

Following the approval of an amended restructuring proposal under the Bankruptcy and Insolvency Act, two limited partner applicant groups sought costs for their participation in the proceedings.

The court declined to award costs, noting the Commercial List practice of generally not awarding costs in restructuring matters.

The court emphasized that restructuring is not a classic adversarial proceeding and that stakeholders should not be discouraged from participating by the threat of costs.

No order as to costs was made for the bankruptcy proceeding, though the court left open the possibility of addressing costs in the related civil proceedings if funds flow back to the partnership.

The debtors, YG Limited Partnership and YSL Residences Inc., sought court approval for version 2 of Amended Proposal #3 under the Bankruptcy and Insolvency Act, following the court's previous rejection of an earlier proposal.

The amended proposal addressed the court's prior concerns by treating related party claims as equity, ensuring construction lien claims did not dilute unsecured creditors' recoveries, and providing that any surplus funds would be returned to the limited partnership.

The court found the amended proposal to be reasonable, calculated to benefit the general body of creditors, and advanced in good faith, and therefore granted the order approving the proposal.

Following a motion where the tenant successfully obtained relief from forfeiture and the landlord successfully obtained all rent arrears, both parties sought costs.

The landlord sought $300,000 based on partial indemnity and an unaccepted offer to settle, while the tenant sought $218,388 or that each party bear their own costs.

The court ordered that each party bear their own costs, noting the divided success, the withdrawal of the landlord's offer to settle prior to the hearing, and the unique and unforeseen circumstances of the COVID-19 pandemic.

The debtors, YG Limited Partnership and YSL Residences Inc., sought court approval of a bankruptcy proposal under the Bankruptcy and Insolvency Act.

Two groups of limited partners opposed the proposal, arguing it was not reasonable, was advanced in bad faith, and improperly treated related-party advances as debt rather than equity.

The court refused to approve the proposal, finding that the related-party claims were equity claims, the proposal sponsor had improperly induced unaffected lien claimants to vote as affected creditors, and the general partner had breached its fiduciary duties by advancing a proposal designed to benefit related parties at the expense of the limited partners.

The plaintiff tenant, a non-essential retailer, ceased paying rent during the COVID-19 pandemic, arguing the landlord breached the lease by failing to provide a first-class shopping centre due to government-mandated closures and restrictions.

The landlord sought to terminate the lease.

The court held that the landlord was not in breach of the lease, as it was complying with provincial laws, and the tenant was not entitled to an abatement of rent.

However, the court granted the tenant relief from forfeiture under the Commercial Tenancies Act, allowing a structured deferral of rent arrears with interest, noting the tenant's prior unblemished record and the unprecedented nature of the pandemic.

The plaintiffs, former executives of the Durham College student association (DCSI), sued Durham College and DCSI following their termination by DCSI.

Durham College brought a motion for summary judgment to dismiss the claims against it, arguing it had no involvement in the termination and owed no duty to supervise DCSI's employment relationships.

The court granted the motion, finding that the governing legislation prohibited Durham College from interfering with DCSI's normal activities, precluding any duty of care.

The court also dismissed the plaintiffs' claims for negligent misrepresentation, intentional infliction of mental distress, specific performance, and discrimination due to lack of evidence and insufficient pleadings.

The appellant purchased a three-year after-market vehicle warranty from the respondent.

When the appellant sought to renew the warranty, the respondent refused.

The appellant sued in Small Claims Court, where the trial judge found the renewal provision unenforceable because it lacked certainty regarding price and term.

On appeal, the Divisional Court upheld the trial judge's decision, finding it reasonable to conclude that the renewal clause was merely an agreement to agree and unenforceable without an objective standard or formula to determine the renewal terms.

The plaintiff car dealership sought summary judgment against the defendants for breach of a vehicle purchase agreement.

The defendant, Mr. Cater, failed to secure financing for a vehicle but retained possession of it for nearly a year.

The plaintiff sought the purchase price and daily usage fees.

The defendants counterclaimed for harassment.

The court granted summary judgment in part, finding the agreement binding and awarding the plaintiff daily usage fees against Mr. Cater.

The claim for the full purchase price was dismissed as it was not explicitly provided for in the contract's default clause after repossession.

The action against Ms. Parker was dismissed as she was not a party to the agreement.

The defendants' counterclaim was dismissed due to a lack of evidence.

The defendants moved to set aside a default judgment obtained by the plaintiff for amounts owing on four truck leases.

The court found no procedural irregularity in the service of the statement of claim or the obtaining of default judgment.

However, applying the five-factor test for setting aside a regularly obtained default judgment, the court determined that the defendants had a plausible explanation for their delay in responding and an arguable defence on the merits, particularly regarding the authenticity of signatures on two disputed leases and the application of payments.

The court emphasized the importance of resolving matters on their merits and found that allowing the defence to proceed was in the interests of the administration of justice.

The motion to set aside the default judgment was granted.