Avi Freedland

The court considered whether the buyers were entitled to repudiate a real estate purchase agreement due to a storm sewer easement registered on title, and the resulting damages.

The court found the buyers were not entitled to repudiate, as the easement did not materially affect the use of the property, and awarded damages to the sellers, including the forfeited deposit and consequential losses.

This is a costs endorsement following an appeal.

The Court of Appeal for Ontario ordered the appellants to pay full indemnity costs to the respondents in the amount of $25,973.05, inclusive of disbursements and applicable taxes.

The decision was made after the appeal from a Superior Court of Justice judgment.

The appellants appealed a provisional summary judgment order made against them in a mortgage action.

They had defaulted on a syndicated mortgage loan and alleged fraud against the lenders, including the respondents.

The motion judge granted summary judgment, finding no genuine issue requiring a trial and no evidentiary basis for the fraud claims against the respondents.

The Court of Appeal dismissed the appeal, affirming the motion judge's decision.

The court held that the motion judge correctly applied summary judgment principles, including the holistic approach and the "best foot forward" rule, and properly exercised discretion regarding necessary parties and the risk of inconsistent findings with a related fraud action.

The appellants sought to overturn a summary judgment granted against them, which included full indemnity costs under a second mortgage, and the striking of their statement of defence and counterclaim without leave to amend.

The Court of Appeal dismissed the appeal, finding no reversible error in the motion judge's conclusion that the appellants were liable under the mortgage, their pleadings were unparticularized, and that other outstanding claims did not justify delaying judgment.

The court also upheld the refusal to grant leave to amend due to the unintelligible nature of the pleadings and the appellants' failure to seek amendment or provide proposed amended pleadings.

The court-appointed Receiver moved for approval of its Third Report, activities, and the fees and disbursements of the Receiver and its counsel.

The debtor opposed the approval of the fees, arguing they were unreasonable because the receivership was straightforward and the debtor had ultimately refinanced the property.

The court applied the Diemer factors and found the fees to be fair and reasonable, noting that the receiver's activities were necessary at the time they were undertaken pursuant to court orders.

The court approved the fees in the amount of $247,953.15 and awarded costs of the motion to the Receiver.

The appellant, TS Pharmaceuticals Ltd., appealed the dismissal of its motion for damages against the court-appointed Receiver, A. Farber & Partners Inc. TS alleged the Receiver failed to use "best efforts" to maintain a Health Canada cannabis licence, which lapsed, leading to the termination of a Share Purchase Agreement.

The Court of Appeal upheld the motion judge's finding that the Receiver had no positive obligation or authority to maintain the licence, nor could it have done so in the short timeframe between the SPA execution and licence expiry.

The appeal was dismissed.