Andrew Charles Crichton Parley

The appellant landlord appealed the dismissal of its application for a declaration that a long-term commercial lease had expired and for ancillary relief on the basis that the tenant was overholding.

The appellant argued that the tenant's failure to obtain timely Planning Act approval brought the lease to an end and precluded further renewals.

The Court of Appeal found no error in the application judge's analysis, holding that the tenant had continued to take appropriate steps to obtain the necessary approval and that the renewals were permitted subject to such approval.

Fresh evidence motions were dismissed as irrelevant to the appeal outcome, and leave to appeal the $225,000 costs award was denied.

The applicants sought damages for breach of contract after the respondent developer cancelled an agreement of purchase and sale for a preconstruction condominium unit.

The respondent argued that the applicants had waived the strict timelines in the Tarion addendum and that two of the applicants had bound the third to an amending agreement.

The court found that while the applicants were partners who could bind each other, the doctrine of waiver did not apply to extend the early termination date.

However, the court held that the contract's limitation of liability clause was enforceable, restricting the applicants' remedy to the return of their deposits with interest.

The decision concerns a dispute over the renewal of a commercial lease between McDonald’s Restaurants of Canada Limited and North Elgin Centre Inc. McDonald’s sought to exercise its option to renew the lease for two additional 10-year terms, while North Elgin opposed the renewal, seeking to terminate the lease and redevelop the property.

The court reviewed the lease provisions, the requirements of the Planning Act, and the parties’ conduct, ultimately finding that the lease had been validly renewed for both the first and second renewal terms, subject to municipal consent.

The court dismissed North Elgin’s application to terminate the lease and granted McDonald’s a declaration of renewal, ordering North Elgin to refrain from further communications that would undermine the consent process.

The Receiver sought an order for discharge and release, approval of its Third Report, statement of receipts and disbursements, and fees.

The Court declined to grant the discharge, citing CBJ’s unauthorized commencement of actions in Ontario and Alberta in breach of the Receivership Order.

The Court found CBJ’s disregard for court orders troubling and noted the lack of contrition or proper procedure to regularize its actions.

The motion for discharge was adjourned to allow for a more complete record and for the Receiver to advise on the value of the Ontario and Alberta actions to the estate.

The applicant, Fay Smith, moved to set aside minutes of settlement and a full and final release, alleging she was coerced under duress by her former counsel and Crown counsel.

The court applied the two-part test for duress from *Kawartha Capital Corp. v. 1723766 Ontario Limited*, requiring proof of pressure leaving no choice and illegitimate pressure.

The court found that the applicant received extensive and thoughtful independent legal advice throughout the litigation and mediation process.

The pressure experienced was deemed typical of litigation and did not meet the threshold for economic duress.

The court also found no evidence of collusion between counsel to cover up alleged Ministry malfeasance.

The applicant's motions were dismissed.

This decision addresses the issue of costs following an application that determined the rights of a landlord and tenant under a lease agreement.

The applicant, 2327451 Ontario Inc., was partially successful on jurisdictional issues and successful on the interpretation of a restrictive covenant, but unsuccessful on other claims.

The court, applying the principles of mixed success under the Courts of Justice Act and Rules of Civil Procedure, awarded the applicant partial indemnity costs of $17,934.53, finding that litigation was a necessary step despite no formal settlement offers.

The responding parties brought an application seeking declaratory relief regarding the moving parties' alleged failure to retain an operator for a light rail transit project.

The moving parties brought a motion to stay the application in favour of arbitration, relying on a dispute resolution clause in prior Minutes of Settlement.

The court granted the stay, applying the competence-competence principle and finding that the moving parties established an arguable case that the dispute fell within the arbitration agreement.

The court also found no undue delay by the moving parties in seeking the stay.

The plaintiff, Suntower Developments Limited, brought a motion for a certificate of pending litigation (CPL) over property owned by the defendants, Studios of America Corporation and Studios of America Limited Partnership.

Suntower claimed a constructive trust based on unjust enrichment and alleged wrongful conduct, stemming from an agreement where Suntower was to receive a share of cash flow for its development work, not a proprietary interest.

The defendants opposed, arguing the contract was a juristic reason precluding unjust enrichment and that monetary damages were an adequate remedy.

The court dismissed the motion, finding no triable issue for a constructive trust claim, as the contract was a juristic reason for any enrichment, and the plaintiff had no reasonable expectation of a proprietary interest.

The court also found no triable issue for a constructive trust based on wrongful conduct, as the defendants' ownership of the property did not result from any breach of obligation.

The equities also favored dismissing the CPL.

This endorsement addresses the costs of a contempt motion brought by McDonald's against North Elgin Centre Inc. (NEC), and NEC's cross-motion for declaratory relief.

Both the motion and cross-motion were dismissed.

NEC, as the successful party, sought substantial indemnity costs of $153,368.

McDonald's argued for $15,000.

The court found NEC substantially successful but awarded partial indemnity costs of $37,000, significantly reducing the amount claimed.

The reduction was based on the unreasonableness of NEC's claimed hours, the failure to delegate work to lower-cost timekeepers, and the fact that McDonald's prepared most of the voluminous record.

The court also found NEC's offer to settle did not comply with Rule 49 and thus did not attract substantial indemnity cost consequences.

The applicant sought to use Passenger Visual Information Displays (PVIS) instead of standard ULC-listed strobe lights as visual signal devices for the fire alarm systems in 15 new Eglinton Crosstown LRT stations.

The City of Toronto denied the alternative solution because PVIS is not a ULC-listed device.

The Building Code Commission ruled that the proposed alternative solution, which integrates PVIS with established standard operating procedures and constant system monitoring, provides sufficiency of compliance with the Building Code's requirements for visual signal devices in rapid transit stations.

The appellant brought a motion for leave to appeal a prior order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the all-inclusive amount of $1,500.

The moving party, XTM, Inc., brought a motion for leave to appeal the order of Justice R.A. Lococo dated August 12, 2021.

The Divisional Court dismissed the motion for leave to appeal without costs.

The defendants brought a motion to set aside a default judgment entered against the Crown in an action arising from a fatal mining accident.

The parties reached a resolution consenting to set aside the default judgment on terms, including the payment of substantial costs by the Crown.

The court endorsed the resolution, finding that the five-part test for setting aside a default judgment was met, as the delay was due to unique circumstances compounded by the pandemic, and the Crown had an arguable defence.

The court also granted a sealing order for certain medical information to protect personal privacy.

The appellants appealed a Master's decision that set aside a Registrar's administrative dismissal of the respondent's action for delay.

The respondent law firm had commenced an action alleging wrongful solicitation of clients by the appellants.

The action was dismissed five years later under Rule 48.14.

The Superior Court found that the Master made several legal and palpable and overriding errors in applying the Reid factors, including equating delay with the litigation not advancing at all, lowering the bar for what it means to prosecute an action, and improperly shifting the burden of proving prejudice to the appellants.

The appeal was allowed, the Master's decision was set aside, and the Registrar's dismissal was upheld.

McDonald's sought to declare North Elgin Centre Inc. (NEC) in contempt of a prior court order requiring NEC to provide "all reasonable cooperation" to obtain Planning Act consent for a renewed lease.

NEC filed a report with the Town's Committee of Adjustment proposing conditions for consent approval, which McDonald's argued was a breach.

NEC also brought a cross-motion for declaratory relief and directions.

The court dismissed McDonald's contempt motion, finding that NEC's report, including its proposed conditions, reflected legitimate concerns as the property owner and did not constitute a failure to provide "all reasonable cooperation." NEC's cross-motion was also dismissed as unnecessary given the contempt motion's dismissal, and because a single judge could not vary a panel order.

The appellant, Wayne Laski, and the Estate of Harold Morton Laski appealed a motion judge's decision to strike their action against BMO Nesbitt Burns Inc. and Norman Yu.

The action alleged negligent misrepresentation and breach of disclosure duty related to a transfer of securities from Harold Laski to a joint account with Wendi Laski, which passed by right of survivorship outside the estate.

The motion judge struck the estate's claim for non-compliance with procedural rules and the appellant's personal claim based on issue estoppel, collateral attack, abuse of process, and lack of duty of care/damages.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision to proceed with the motion in the appellant's absence due to repeated non-compliance with adjournment conditions.

The court also affirmed the striking of the personal claim, finding no error in the application of issue estoppel and noting the appellant's failure to demonstrate damages.

The plaintiff, Tassone, brought an action against 407 ETR and its lawyers.

While the action against 407 ETR had settled, Tassone's counsel later subpoenaed 407 ETR's legal department representatives in the ongoing action against the lawyers, alleging unlawful conduct and seeking to breach solicitor-client privilege. 407 ETR successfully moved to quash these subpoenas.

This endorsement addresses the costs of that motion.

The court found that a prior mutual release did not bar 407 ETR's claim for costs related to the subpoena motion.

The costs claimed by 407 ETR were deemed reasonable, with a minor deduction for duplicate student time.

Due to Tassone's unsubstantiated allegations of unlawful conduct and aggressive, unjustified attempts to breach privilege, the court awarded substantial indemnity costs to 407 ETR.

McDonald's appealed a Superior Court decision that terminated a commercial ground lease due to McDonald's failure to comply with the renewal provision.

The application judge found that because the parties had not agreed on a rental rate at least nine months before the lease expiry, McDonald's was obliged to either refer the matter to arbitration or revoke its renewal notice.

The Court of Appeal allowed the appeal, finding that the application judge erred in concluding that North Elgin had properly revoked its waiver of strict compliance with the renewal provision.

The court held that the revocation lacked sufficient clarity and did not provide McDonald's with reasonable notice or an opportunity to cure the defect.

This case involved two applications concerning the renewal of a twenty-year ground lease between a landlord, North Elgin Centre Inc., and its tenant, McDonald’s Restaurants of Canada Limited.

McDonald's had given notice to renew but failed to either revoke its intention or elect arbitration within the stipulated nine-month period when rent negotiations stalled.

The landlord sought a declaration that the lease was terminated due to McDonald's non-compliance with the renewal provision.

McDonald's sought a declaration that the lease was renewed and an order for arbitration.

The court found that McDonald's did not strictly comply with the renewal provision.

While the landlord's conduct initially constituted a waiver of strict compliance, this waiver was effectively revoked by clear communication.

McDonald's subsequently failed to elect arbitration within a reasonable time and was not entitled to relief from forfeiture.

The court granted the landlord's application, declaring the lease terminated, and dismissed McDonald's application.

A 90-day stay of judgment was granted.

The respondent, Trade Capital Finance Corp., alleged it was defrauded of approximately $6.5 million in a scheme involving the purchase of fictitious accounts receivable.

The majority of lost funds were deposited into bank accounts owned by the appellant, The Cash House Inc., a financial services company.

Trade Capital obtained a Mareva Order freezing assets and ordering financial disclosure.

The appellants were found in contempt for intentionally operating Cash House through a bank account owned by a related entity (2454904 Ontario Inc.) in violation of the Mareva Order, and for failing to produce required documents.

The motion judge sentenced Osman Khan to 90 days imprisonment and struck Cash House's statement of defence and crossclaim.

The appellants appealed, arguing the Mareva Order was ambiguous and that the sanctions were excessive.

The Court of Appeal dismissed the appeal, finding the Mareva Order sufficiently clear and the sanctions justified by the appellants' persistent non-compliance.