Andrea Lusk

The court considered cross-motions for summary judgment in a failed real estate transaction.

The plaintiffs, Bertus and Diane Nieuwenhuis, sought damages for breach of an agreement of purchase and sale (the "Taunton APS") with the defendant, FRP Inc. The defendant sought the return of its deposit, arguing the agreement became null and void when conditions were not fulfilled or waived.

The court found that neither party was ready, willing, and able to close on the extended closing date, and neither party tendered or reinstated time of the essence.

The agreement was therefore abandoned, and the defendant was entitled to the return of its deposit.

The plaintiffs' claim for damages was dismissed.

The applicant sought an order for the forfeiture of a $62,000 deposit from the respondent assignee, Ke Ma, and its release from the brokerage, Homelife Best Choice Realty Inc., Brokerage, following the non-completion of an assignment agreement for a pre-construction property.

The court found that while the applicant failed to fully satisfy a condition precedent (obtaining the vendor's written consent in the required form), the respondent assignee breached her contractual obligation to cooperate by failing to communicate objections to the vendor consent form in a timely manner.

This breach prevented the condition from being cured and fulfilled.

Consequently, the respondent's default led to the forfeiture of the deposit as per the terms of the assignment agreement.

The condominium corporation brought a motion to appoint an arbitrator to resolve the plaintiffs' claims against it, which had previously been stayed in favour of arbitration.

The plaintiffs opposed the appointment, arguing they had not commenced an arbitration and could not be forced to act as plaintiffs.

The court granted the motion and appointed an arbitrator, noting that the condominium corporation was entitled to push forward with the claims made against it to clear its name, and that the arbitrator would determine the process.

The applicant unit owner sought an oppression remedy against the respondent condominium corporation due to excessive noise and vibrations emanating from an adjacent garbage room.

The applicant endured the noise for over a decade while the corporation responded in a delayed and piecemeal fashion, eventually halting approved remediation work when the application was commenced.

The court found that while the applicant did not provide expert evidence to prove the corporation's proposed remediation plan was inadequate, the corporation's inexcusable delay and retaliatory stoppage of work unfairly disregarded the applicant's interests.

The court awarded $30,000 in damages for oppression and ordered the corporation to complete the approved remediation work.

The defendant, Metropolitan Toronto Condominium Corporation No. 1255 (MTCC 1255), brought a motion to stay an action commenced by 23 St. Thomas Inc. and Metropolitan Toronto Condominium Corporation No. 1271 (MTCC 1271) in favour of mandatory arbitration under the Condominium Act, 1998.

The court found that the pith and substance of MTCC 1271's claims related to the interpretation and application of the Reciprocal Agreement and Indemnity Agreement, making them arbitrable.

Consequently, MTCC 1271's claims were stayed.

However, the court declined to stay 23 St. Thomas Inc.'s claims, as it was not a party to the agreements and there was insufficient evidence to pierce the corporate veil.

The motion was granted in part, with an arbitrator appointed for the arbitrable claims.

The applicant beneficiary objected to the passing of accounts and sought to remove the estate trustee, her brother.

She also objected to the estate trustee's compensation and property management fees paid to their sister.

The court found the accounts met the standard of ordinary care and diligence, the property management fees were reasonable, and the estate trustee's compensation of $267,859.96 was fair based on the Laing Estate factors.

The application to remove the trustee was abandoned, and the accounts were approved as submitted with costs awarded against the applicant.

The defendant condominium corporation brought a motion to stay the plaintiffs' action against it pending mediation and arbitration under the Condominium Act, 1998 and the Arbitration Act, 1991.

The plaintiffs opposed the stay, arguing that the claims against the condominium corporation were intertwined with the claims against the developer and that bifurcating the proceedings would cause duplication and inconsistent verdicts.

The court found that while bifurcation was unreasonable and risked multiplicity, recent Supreme Court of Canada jurisprudence mandated a stay under section 7 of the Arbitration Act, 1991, as no statutory exceptions applied.

The motion to stay was granted.

This endorsement addresses the issue of costs following the dismissal of the applicant's main application.

The respondent sought partial indemnity costs of $35,985.

The applicant argued for no costs, citing the court's previous finding of shared blame and the respondent's earlier inaction.

The court, applying principles from the Courts of Justice Act and Rule 57.01(1), determined that while the unsuccessful applicant should pay some costs, the quantum should be significantly reduced due to the respondent's contribution to the dispute and the applicant's uncompromising stance.

The court fixed costs at $12,500, inclusive of tax and disbursements.

The defendant brought a motion for partial summary judgment to dismiss the plaintiff's claim for unpaid invoices dating from 2007 to 2012, arguing they were statute-barred under the Limitations Act, 2002.

The plaintiff, a receiver who acquired the assets of the original creditor, argued the claims were not discoverable due to poor record-keeping and alleged part payments.

The court granted summary judgment, finding the claims were discoverable by 2012 and that the defendant had paid his accounts annually, meaning no part payments extended the limitation period.

A secondary motion to strike the claim for late appointment of counsel was dismissed.