Battista Frino

The moving parties brought motions to quash appeals from an order authorizing a court-appointed Sales Officer to enter into agreements to separate joint venture interests in real estate projects as part of a corporate wind-up.

The Court of Appeal granted the motions to quash, finding that the order was interlocutory because it was a step in implementing the wind-up and sale process, not a final determination of substantive rights.

Furthermore, the Court held that the order was made pursuant to the Business Corporations Act, meaning any appeal lies to the Divisional Court.

The court approved a proposed settlement and certified the action for settlement purposes under the Class Proceedings Act, 1992.

The class consists of approximately 100 investors in a failed real estate limited partnership project.

The settlement restores the class members’ proportionate interest in the property, now with greater development density and less debt, and is considered generous.

The court found the settlement fair, reasonable, and in the best interests of the class, and approved class counsel’s fees.

The action will continue only as between the defendants for unresolved crossclaims.

The plaintiff brought a motion for leave to amend its statement of claim to add allegations regarding a delay claim and punitive damages arising from a construction subcontract dispute.

The defendants opposed, arguing the amendments pleaded a new cause of action that was statute-barred and improperly pleaded evidence.

The court granted leave to amend, finding the amendments largely provided particulars of allegations already pleaded and did not assert a fundamentally different claim.

The court also held that even if it were a new cause of action, there was a genuine factual dispute regarding discoverability that should not be resolved on a pleadings motion.

Siemens Canada Limited brought a motion for summary judgment seeking to limit its liability to Symtech Innovations Ltd. to admitted holdback and to dismiss Symtech's significant prolongation claim.

The court found that Symtech failed to provide timely contractual notice of its prolongation claim, which was a condition precedent to maintaining the claim.

Consequently, the prolongation claim was dismissed.

However, the court found genuine issues requiring a trial regarding Siemens' alleged breaches of the sub-subcontract and the quantification of other earned and unpaid amounts.

The court also declined to grant summary judgment in a related breach of trust action, noting jurisdictional differences.

The plaintiff tenant sought immediate relief from forfeiture and a mandatory injunction to restore its commercial tenancy after the defendant landlord terminated the lease due to the tenant's use of the premises, which rendered the property uninsurable without a sprinkler system upgrade.

The court found the tenant was in breach of the lease for failing to upgrade the sprinkler system, as this cost was attributable to their specific hazardous use under the "net lease" terms.

The court dismissed the tenant's request for a mandatory injunction but granted temporary relief from forfeiture for 30 days, allowing the tenant to remedy the breach by installing an upgraded sprinkler system at its own cost or through an agreed arrangement with the landlord.

Operations were prohibited until the system was installed and approved by an insurer.

This motion concerned compelling answers to outstanding undertakings, under advisements, and refusals from the defendants' discovery.

The applicants, Symtech and Kelson, sought documents related to delays caused by a bankrupt subcontractor (Blackrock), an insurance claim made by the defendants (Bird) on a "Subguard" policy, and acceleration change orders to other trades.

The defendants resisted on grounds of relevance and privilege.

The court ordered production of documents related to Blackrock delays, the Subguard claim, and acceleration change orders, finding them relevant.

However, the court upheld litigation and settlement privilege for Bird's internal assessments of Symtech and Kelson's claims, provided these privileged documents are itemized.

The respondent in an application regarding the interpretation of settlement agreements brought a motion to convert the application into an action and consolidate it with an existing 2018 action between the parties.

The underlying dispute involved a condominium development, easements, and construction on abutting properties.

The court dismissed the motion, finding that the discrete issues of contract interpretation could be resolved on a written record without viva voce evidence, and that delaying the application to be heard with the 2018 action would cause undue prejudice and delay to the construction project.

The plaintiff commercial tenant sought a mandatory interlocutory injunction to regain possession of commercial premises and recover seized equipment after being evicted by the defendant landlord.

The court dismissed the motion, finding that the plaintiff failed to provide a meaningful undertaking as to damages, did not demonstrate a serious issue to be tried as the landlord had lawfully terminated the tenancy for non-payment of rent and non-compliance with insurance requirements, and did not establish irreparable harm.

The balance of convenience favored the landlord.