Andrew J. F. Lenz

The appellant appealed from an order of an associate judge that prohibited discovery motions without leave, made in the context of a dismissed motion for particulars in a lawyer's negligence action.

The court found the associate judge had jurisdiction to make the order as a term under Rule 37.13 or Rule 1.05, rather than under Rule 37.16 which addresses vexatious litigants.

However, the court concluded the order could not stand due to a lack of procedural fairness, as neither party had been given notice that the order was being contemplated or an opportunity to make submissions.

The appeal was granted and the order was set aside.

No costs were awarded as the appeal was unopposed.

The applicants, owners of 156 First Avenue in Ottawa, sought a declaration of prescriptive easement over a laneway (the “Disputed Lands”) running between their property and the respondents’ property at 152 First Avenue.

The applicants claimed the right to use the laneway to access the rear of their property and for parking, and sought an order for the removal of a fence erected by the respondents.

The court reviewed extensive affidavit evidence from the parties, former tenants, and neighbours regarding the historical use of the laneway.

The court found that while there was some evidence of past use for parking, the applicants failed to establish 20 years of open, uninterrupted, and acquiesced use necessary for a prescriptive easement, nor that such use was reasonably necessary for the enjoyment of the property.

The application was dismissed.

The applicant, Harmur Investments Limited, sought a vesting order declaring that it had acquired, through adverse possession, title to two parcels of land in the Township of Greater Madawaska.

The court found that Harmur had not acquired title to the parcel known as "the Triangle" but had acquired title to the parcel known as "the Boathouse Parcel." The decision provides a detailed analysis of the requirements for adverse possession under Ontario law, including the necessity of actual possession, intention to exclude, and effective exclusion of the true owner.

The plaintiff, Aenos Food Services Inc., brought a motion seeking particulars of the defendants' (Emily Tierney and Tierney Stauffer LLP) Statement of Defence in a solicitor's negligence action governed by simplified procedure.

The court dismissed the motion, finding that the particulars sought were within the plaintiff's knowledge, the defence already contained sufficient material facts, and the request was an attempt to elicit evidence prior to discovery, which is contrary to the principles of simplified procedure.

The court emphasized that particulars are to clarify pleadings, not to serve as a substitute for discovery, and that such motions contribute to delays and costs, undermining access to justice in Rule 76 actions.

This appeal arose from a Superior Court order finding a director in civil contempt for failing to comply with an order for document production and examination in aid of execution in assessment proceedings.

The appellants argued there was no factual basis for the contempt finding and that enforcement was not in the interests of justice due to ongoing litigation.

The Court of Appeal dismissed the appeal, affirming the lower court's application of civil contempt principles, emphasizing that court orders must be followed unless stayed or overturned, and that reliance on legal advice does not shield a party from contempt.

The parties subsequently agreed on terms to purge the contempt and costs.

The applicant, a commercial real estate financing company, sought a receivership order over the debtor and beneficial owners of properties due to loan default, outstanding interest, and unpaid municipal taxes.

The court considered factors for appointing a receiver, including the contractual right to appointment and the respondents' lack of transparency and uncertain sale prospects.

The application was granted, and a receiver was appointed.

Perley-Robertson, Hill, & McDougall LLP brought a motion seeking a finding of contempt against Grant Bourdeau, an officer and director of Acenzia Inc., for failing to comply with an order to attend an examination in aid of execution and produce documents.

The motion also sought a writ of sequestration against Acenzia Inc. The court found Bourdeau in contempt, ruling that he intentionally breached a clear and unequivocal order by refusing to answer questions and produce documents.

The court ordered Bourdeau to purge his contempt within 60 days by attending the examination, failing which he would face 30 days in jail.

Costs were awarded to the moving party.

The plaintiff, an Ontario-based charity, brought an action for a declaration that it owed no money to the defendant, a US-based charity operating in Colombia, under a funding agreement.

The agreement contained a forum selection clause designating Ontario.

The defendant moved to stay the Ontario action, arguing that the dispute should be heard in Colombia where it had initiated proceedings to annul the forum clause.

The court dismissed the motion, finding that the defendant failed to demonstrate 'strong cause' to override the parties' contractual choice of forum, as the dispute primarily involved contractual interpretation and accounting rather than broad factual inquiries in Colombia.

The Proposal Trustee brought a motion for court approval of the amended joint proposal of Artiva Inc. and Livewell Foods Canada Inc. under s. 58 of the Bankruptcy and Insolvency Act, and a related plan of arrangement under the Canada Business Corporations Act.

The proposal was supported by the majority of creditors, but opposed by a dissenting creditor who sought an adjournment due to late delivery of proofs of claim.

The court denied the adjournment, finding the time to challenge claims for voting purposes had expired.

The court approved the proposal and arrangement, finding them viable, made in good faith, and likely to generate a superior recovery for creditors than bankruptcy.

The noteholders appealed the Proposal Trustee's disallowance of their unsecured claims in the BIA proposals of several subsidiary corporations.

The Trustee had determined that the subsidiaries' guarantees were limited to an initial US$3 million advance and did not cover a subsequent US$12 million advance, and that the initial advance had been fully satisfied by a property transfer.

The Superior Court upheld the Trustee's interpretation of the guarantees but found an error in the debt allocation, ruling that US$828,000 of the guaranteed debt remained outstanding and should be recognized as an unsecured claim.

The debtors, Eureka 93 Inc. and related companies, filed a notice of intention to make a proposal under the BIA.

Two motions were heard: an unopposed motion by the debtors for an interim arrangement order under the Canada Business Corporations Act, which was granted; and an opposed motion by the noteholders (Dominion Capital LLC) seeking an order for document production relevant to an appraisal, cross-examination of Seann Poli, and examination of a representative of the first mortgagee, all in advance of the creditors' meeting to vote on the proposal.

The court dismissed the noteholders' request for examinations as premature, noting that the BIA provides mechanisms for investigation after the trustee's report or by adjourning the creditors' meeting.

However, the court ordered the debtor's appraiser to disclose and produce source documents used for the land appraisals, but declined to order disclosure for a business valuation under the BIA.

The applicant debtors brought an unopposed motion to extend the time for making a proposal under the Bankruptcy and Insolvency Act.

The court granted the extension to June 12, 2020, finding that the criteria of good faith, diligence, lack of prejudice, and potential viability were met, with an improved outlook despite COVID-19 closures.

The decision also included observations on the conduct of virtual hearings during the COVID-19 emergency, emphasizing the importance of notice to all parties and upholding the open court principle, even when public interest is low or a sealing order is in place.

The court flagged the need for more robust solutions for public access to virtual hearings in the future.

The applicant sought relief regarding title to property and a right of way, which involved the estate of a deceased person.

The court addressed preliminary issues concerning insufficient notice to the deceased's grandchildren and the lack of a representative for the respondent estate.

The application was adjourned, and the applicant was directed to provide clearer, more comprehensive notice to the grandchildren, offer to cover legal advice expenses, and make further efforts to locate all beneficiaries.

The court declined to allow the proceeding to continue without an estate representative at this stage due to evidentiary deficiencies and the need for proper representation of the estate's interests.

This endorsement addresses costs following a mini-trial where Premier Drycleaners' claim for rectification was dismissed.

Burnford Realty Limited, the successful party on the rectification issue, sought substantial indemnity costs.

Premier sought costs payable in the cause, arguing Burnford's late clarification of its position on a 2007 document prolonged the mini-trial.

The court found that Burnford's conduct in delaying an admission fell under Rule 57.01(1)(g).

However, Premier also contributed to the mini-trial's duration by introducing an issue outside its scope, falling under Rule 57.01(1)(e).

Considering the conduct of both parties, the court ordered that there would be no costs payable for the mini-trial.

Following an eight-day trial where the Ottawa Convention Centre Corporation (OCCC) succeeded on its claim and treefort Hip Productions Inc.'s counterclaim was dismissed, the court addressed the issue of costs.

OCCC sought substantial indemnity costs of over $400,000.

The court found that while OCCC's pre-litigation offer demonstrated reasonableness, it did not, by itself, warrant substantial indemnity costs.

However, treefort's unsubstantiated allegations of bad faith, fraud, and dishonesty against OCCC and its senior executives were deemed serious enough to fall into the "special and rare" category justifying substantial indemnity costs, limited to the costs of attending at trial.

The court awarded OCCC costs of $320,000, inclusive of disbursements and taxes.

The Ottawa Convention Centre Corporation (OCCC) sued treefort Hip Productions Inc. (treefort) for an unpaid balance from the 2015 Ottawa Wine and Food Festival, and treefort counterclaimed, alleging OCCC breached long-term contractual obligations regarding hosting, scheduling, and booking protection.

The court found that the contractual relationship was limited to annual license agreements, which contained entire agreement clauses.

OCCC's repeated warnings that dates were not guaranteed, and the asset purchase agreement's terms, negated treefort's claims of implied long-term covenants.

The court dismissed treefort's counterclaim and granted OCCC judgment for the outstanding balance plus interest.

This endorsement addresses the costs of a summary judgment motion where the plaintiff, Premier Drycleaners, was partially unsuccessful.

The defendant, Burnford Realty Limited, sought costs on a substantial indemnity basis, citing Rule 49 and the presumptive rule that costs follow the event.

Premier argued that costs should be payable in the cause, given that substantive issues, including liability for damages, remained unresolved and were referred to a mini-trial.

The court agreed with Premier, ordering that the costs of the summary judgment motion be payable in the cause, reserving the final determination of costs to the trial judge who would have the benefit of hindsight regarding the overall outcome of the action.

This endorsement addresses the costs of a previously dismissed motion brought by Bruce Wallace, who sought a Certificate of Pending Litigation (CPL) or alternative security.

The motion was dismissed because Wallace failed to demonstrate a reasonable claim to the properties.

Stephen Campbell, Pamela F. Campbell, and Gryphon’s Head Properties Limited (the "Campbells") sought substantial indemnity costs, arguing the motion was meritless and should never have been brought.

Wallace argued for lower costs, citing financial difficulties and the potential future utility of the motion materials for the Campbells.

The court found that while there was no formal offer to settle, the extensive materials prepared by the Campbells should have prompted Wallace to reconsider his motion.

Despite a prior agreement between former counsel regarding the CPL, the court concluded that substantial indemnity costs were not appropriate.

However, given the extensive materials prepared by the Campbells, partial indemnity costs of $10,000 were awarded, payable by Wallace within 30 days, rejecting Wallace's financial hardship claim due to unaccounted funds.

Premier Drycleaners sought summary judgment against Burnford Realty Limited for alleged breach of a commercial lease and an order compelling assignment of a new lease.

Premier argued for rectification of the 2008 lease to include a five-year extension option from a 2007 document, and claimed damages for lost profits.

The court dismissed the motion for summary judgment in its entirety, finding genuine issues requiring a mini-trial regarding the terms of the 2008 lease and the alleged breach.

The court also dismissed the request to compel assignment of the 2013 lease, ruling that the landlord's refusal to consent was reasonable given concerns about the tenant's viability and the damaged landlord-tenant relationship due to ongoing litigation.

The Plaintiff/Defendant by Counterclaim, Bruce Wallace, sought an order for a Certificate of Pending Litigation (CPL) on two properties or, alternatively, for $450,000 from property sale proceeds to be deposited with the Court.

Wallace claimed an interest in the properties based on misappropriation of corporate resources and a constructive trust.

The court found that Wallace did not demonstrate a reasonable claim to the properties, noting that one property was sold to the corporation for fair market value and the other was never owned by Wallace.

The court also considered the balance of factors for granting a CPL and found they did not favour Wallace, emphasizing that damages would be a satisfactory remedy.

The motion for a CPL and the alternative relief were dismissed, and the funds held in trust were ordered to be released to Gryphon’s Head Properties Limited.