Bill R. Michelson

The plaintiff brought a motion seeking orders to compel the defendants to answer undertakings and refusals from discovery examinations.

The underlying dispute involved an alleged unpaid settlement amount, with the plaintiff claiming negligence and conversion of funds by the defendants, who relied on a disputed promissory note and authorization.

The court largely granted the plaintiff's requests, ordering disclosure of communications between the defendants, payment receipts, original emails for metadata, and Law Society files related to one defendant's retainer.

Additionally, one defendant was ordered to produce tax returns for three years preceding 2014 and documentation of his location when sending key documents.

The court denied the request for one defendant's U.S. financial statements and income tax returns, finding them irrelevant.

The plaintiff, Canadian National Railway Company (CN), brought a motion to compel the production of files and examination for discovery of three non-party lawyers: Mr. Brown, Mr. Lof, and Ms. Assuras.

The motion arose from a Mareva and Anton Pillar order and a subsequent summary judgment against Greyslone and Belview, which were found to have no legal status at the time of certain transactions and failed to account for $661,000.

Ms. Assuras, counsel for Greyslone and Belview, opposed the motion, asserting privilege, while Mr. Lof and Mr. Brown took no position.

The court found Mr. Czerlau's (who instructed Ms. Assuras) testimony to be evasive and misleading, and inferred that Greyslone and Belview were not acting at arm's length to Mr. Holmes, suggesting they were shams.

Consequently, the court proposed to draw negative inferences against Greyslone and Belview's bona fides, disallow claims of privilege, and ordered the production of the entire files of Ms. Assuras, Mr. Lof, and Mr. Brown to the plaintiff, subject to a 14-day period for further submissions.

The appellant, a vendor of undeveloped land, appealed a Superior Court judgment requiring it to pay $407,582 in development-related costs as a condition of obtaining a severance consent from the municipality.

The Agreement of Purchase and Sale contained a clause permitting the vendor to refuse onerous or unreasonable severance conditions.

The application judge decided the case on the basis of a zoning clause not raised by the parties, constituting a denial of procedural fairness.

The Court of Appeal allowed the appeal, finding that requiring a non-developing vendor to pay development costs was unreasonable under the contract, and that the respondent purchaser bore the obligation to satisfy such conditions or terminate the agreement.

The applicant, having been entirely successful in the underlying application, sought partial indemnity costs of $89,703.50.

The respondent argued for no costs or a maximum of $50,000, citing the applicant's failed allegation of bad faith.

The court noted that much of the parties' submissions were not directed to the determinative issue, which the court identified independently based on the Agreement of Purchase and Sale.

The court also questioned the necessity of multiple counsel.

Costs were awarded to the applicant in the reduced amount of $68,407.68 plus HST.

The applicant purchaser and respondent vendor entered into an Agreement of Purchase and Sale for land in Markham.

The agreement required the vendor to obtain a severance at its sole expense, unless the conditions imposed were 'onerous or unreasonable'.

The Committee of Adjustment granted the severance subject to the condition that the owner sign a Cost Sharing Agreement and pay $407,582.

The vendor argued this was onerous and unreasonable, while the purchaser argued it was the vendor's responsibility.

The court interpreted the agreement, specifically the zoning clause, and found that the parties intended for the land to be rezoned and operational at the time of sale, which required the cost sharing payment.

The court held the condition was not onerous or unreasonable and ordered the vendor to repay the $407,582 to the purchaser.