Alison Kuchinsky

The court considered whether a 2024 capital call made by the general partner of a real estate development limited partnership was valid under the partnership agreements and the Limited Partnerships Act.

The applicant, Dream Impact, argued the call was invalid and that it had not defaulted, or, alternatively, that any default was cured by other partners' contributions.

The court found the capital call was valid, Dream Impact defaulted by not contributing, but that after the other partners funded Dream Impact’s share and its interest was diluted, there was no continuing default.

The applicant’s put notice was found invalid.

The plaintiffs, Christopher Morgis and Jo-Anne Morgis, brought a motion under Rule 48.14(3) of the Rules of Civil Procedure for an extension of time to set their action down for trial and for a timetable for the completion of remaining steps.

The action arose from a dispute over the removal of personal property and chattels from a property sold under power of sale.

The court reviewed the lengthy procedural history, including duplicative actions, delays, and failures to comply with procedural requirements.

The court found that the plaintiffs failed to provide a satisfactory explanation for the delay and that the defendants would suffer non-compensable prejudice if the action were allowed to continue.

The motion was dismissed and the action was dismissed for delay.

The third party brought a motion to set aside a noting in default in a construction lien action, arguing they were never properly served with the third party claim and were unaware of it for nearly five years.

The defendant cross-moved for leave nunc pro tunc to issue the third party claim, as they had failed to obtain the required statutory leave under the Construction Lien Act.

The court set aside the noting in default, finding the third party's explanation for the delay reasonable and that they had a meritorious defence.

The court denied the defendant's request for leave nunc pro tunc, noting the expiry of the limitation period and undue prejudice to the third party, and stayed the third party claim.

The defendant Landlord brought two ex parte motions seeking declarations that the plaintiff's construction liens against two leasehold properties had expired, and related orders to vacate registrations and dismiss actions.

The court found the Landlord failed to meet the high evidentiary onus required for ex parte relief, particularly regarding the dates of contract completion or abandonment under the Construction Lien Act (now Construction Act).

The motions were dismissed without prejudice, with a direction that they must be brought on notice to the plaintiff if pursued further.