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 appellant appealed an order setting aside the noting in default of the respondent and permanently staying a third party claim brought under the Construction Act.

The appellant had commenced the third party claim without seeking the required leave and sought to convert it to an ordinary civil proceeding more than five years after the limitation period expired.

The Divisional Court dismissed the appeal, holding that a motion for leave to convert a construction lien third party claim must be brought before the expiry of the limitation period, and the motion judge made no error in refusing to grant leave nunc pro tunc.

Following a successful motion by the plaintiff to extend the time for service of its statements of claim in two lien actions, the plaintiff sought partial indemnity costs.

The defendant argued that costs are not typically awarded to a party seeking an indulgence.

The court held that there is no general rule disentitling a party seeking an indulgence from recovering costs, especially where the opposing party's conduct unnecessarily increased costs.

The court awarded the plaintiff $11,000 in partial indemnity costs.

The plaintiff brought motions to extend the time for service of its statements of claim in two construction lien actions, and to validate service or permit substituted service.

The plaintiff had consciously decided not to serve the claims within the 90-day statutory period, ostensibly for financial reasons, and later attempted service by emailing the defendant's lawyer.

The court found the plaintiff's explanation for the delay inadequate and the email service invalid.

However, considering the lack of demonstrable prejudice to the defendant and the defendant's own complacency after becoming aware of the liens, the court granted the extensions and dispensed with the requirement for further service.

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.