Brian A. Diamond

The plaintiff Receiver sued the defendant purchaser for damages after the purchaser failed to close a $12.2 million agreement of purchase and sale for a luxury residential property.

The purchaser argued he was entitled to terminate the agreement and receive his deposit back because the property suffered substantial water and mould damage prior to closing, and that the Receiver anticipatorily breached the agreement by refusing to extend the closing date.

The court found that the damage was not substantial, the Receiver did not repudiate the agreement, and the purchaser breached the contract by failing to close.

The Receiver was awarded over $5.3 million in damages, including the deficiency in the resale price, auction fees, and holding costs.

The self-represented defendant brought a motion to set aside a default judgment obtained by the plaintiff regarding an equipment rental agreement.

The defendant had failed to defend the action despite being personally served, citing health issues and confusion with a consumer protection complaint against a previous company.

The court found the defendant's explanation for default and defence on the merits weak, but concluded the interests of justice favoured setting aside the judgment on strict terms.

The default judgment was set aside on the conditions that the writ of seizure and sale remain in place and the defendant pay costs thrown away.

The appellant, David Aiello, appealed the dismissal of his motion to set aside a default judgment and noting in default.

The Court of Appeal found that the motion judge erred in principle and made palpable and overriding errors of fact in applying the factors for setting aside default judgment from Mountain View Farms Ltd. v. McQueen.

Specifically, the motion judge misapplied the first and second factors by considering the entire litigation history, ignored relevant facts regarding the appellant's default, and applied too high a standard for an arguable defence, failing to consider the quantum of damages as a viable defence.

The Court concluded that it would be unjust to prevent the appellant from having his day in court, given the significant prejudice of a multi-million dollar judgment and the overarching principle of determining proceedings on their merits.

The appellants appealed the dismissal of their claim for adverse possession of a strip of land between two residences in Toronto.

The application judge found that the appellants failed to meet their onus to establish adverse possession.

The Court of Appeal upheld the decision, finding that the application judge's factual findings were supported by the evidence, particularly that the predecessor in title recognized the respondents' ownership and did not intend to exclude them from the disputed land.

The defendant, David Aiello, brought a motion to set aside a default judgment and the striking of his statement of defence.

The default judgment arose from his failure to close on a property purchase and subsequent repeated non-compliance with court orders, including deadlines for undertakings and retaining counsel.

The court applied the five-factor test from *Mountain View Farms Ltd. v. McQueen* to determine if setting aside the default judgment was in the interests of justice.

The motion was dismissed, as Aiello failed to provide a plausible excuse for his numerous breaches of court orders and did not establish an arguable defence on the merits.

The defendant, Sonia Hakimi, brought a motion to set aside a default judgment, vacate a notice of garnishment and writ, remove derogatory credit bureau reports, and for costs.

Hakimi acknowledged her indebtedness to the plaintiff, Royal Bank of Canada, but argued she withheld payments pending clarification on how they would be applied.

The court applied the five-factor test for setting aside default judgments, finding that while the motion was brought promptly, Hakimi failed to establish a plausible explanation for default or an arguable defence on the merits.

Her affidavit merely asserted a defence without supporting evidence.

Consequently, the motion was dismissed without costs.

The respondents sought costs after the applicants abandoned the remaining nuisance claim in a neighbour dispute.

The court had previously ruled in favour of the respondents on an adverse possession issue, which the applicants unsuccessfully appealed.

The applicants abandoned the nuisance claim for economic reasons and argued each party should bear their own costs.

The court declined to award costs to the respondents, finding that the applicants' claims were not frivolous and that a costs award would only aggravate the ongoing dispute between the neighbours.

The Royal Bank of Canada brought a motion for judgment against Mohammed Elsioufi for outstanding loan debts, after Elsioufi was noted in default.

The bank also sought a declaration that the judgment debt would survive any future bankruptcy discharge of the defendant, pursuant to section 178(1)(e) of the Bankruptcy and Insolvency Act, alleging fraudulent misrepresentation.

The court granted judgment for the liquidated debt amounts but refused to issue the pre-emptive declaration regarding bankruptcy discharge, holding that it lacked jurisdiction to make such a hypothetical determination before a bankruptcy proceeding was initiated and without notice to a potential Trustee in Bankruptcy.

The appellants appealed an application judge's finding of adverse possession, arguing the judge failed to consider relevant evidence, make a finding on the ownership of the fence, and find sufficient usage of the disputed strip of land.

The Court of Appeal dismissed the appeal, holding that the application judge correctly stated the elements of adverse possession and made findings of fact reasonably supported by the evidence, including that both parties treated the fence line as a boundary.

Costs of $5,600 were awarded to the respondents.

A contractor commenced a construction lien action seeking payment of $20,000 under a fixed‑price kitchen renovation contract that provided for payment upon completion.

The homeowners denied the claim and advanced a counterclaim for repair costs and return of a deposit.

The court held that the contractor had not completed or substantially completed the work and that several deficiencies—including an uneven floor, improperly cut countertop, damaged hardwood floor, and backsplash design issue—were significant.

The court found that the contractor abandoned and repudiated the contract by refusing to undertake necessary corrective work and by demanding payment when none was due, disentitling it from recovery including quantum meruit.

The homeowners’ counterclaim also failed because the alleged repair costs had not yet been incurred and the deposit claim was withdrawn.

The defendant brought a motion to set aside a default judgment obtained in 2010 arising from a failed agreement for the sale of a retail business.

The moving party argued he had not been properly served with the statement of claim and asserted a triable defence on the merits.

The court held that the defendant became aware of the judgment no later than 2012 during an examination in aid of execution and failed to move to set it aside without undue delay as required by Rule 19.08 of the Rules of Civil Procedure.

The court also found the proposed defence weak and inconsistent with admissions regarding contractual indemnity obligations and undisclosed liabilities of the business.

The motion was dismissed and costs awarded to the plaintiff.

The applicants brought an application for a declaration regarding the boundary between their property and the respondents' property, alleging trespass, negligent misrepresentation, and nuisance.

The court dismissed the trespass claim, finding the respondents had established a crystallized claim for adverse possession of a narrow strip of land up to an old fence line prior to the properties' conversion to the Land Titles system.

The negligent misrepresentation claim was dismissed as improperly pleaded and unproved.

The nuisance claim regarding water run-off was converted to an action and directed to a summary trial.

The plaintiff brought a motion for an interim interlocutory injunction requiring that past and future revenues from certain taxi plates be paid into court pending trial of an ownership dispute between family members.

The plaintiff also sought preservation of the alleged fund under Rule 45.02 of the Rules of Civil Procedure and an accounting.

Applying the tripartite test for injunctive relief from RJR‑MacDonald, the court found there was a serious issue to be tried regarding ownership of the taxi plates but held that the plaintiff failed to demonstrate irreparable harm or that the balance of convenience favoured granting the injunction.

The court also declined to order preservation of funds under Rule 45.02 because no identifiable existing fund had been established and anticipated future revenues do not constitute a specific fund.

The motion and request for an accounting were dismissed.

The plaintiff moved for summary judgment seeking payment of fees owed under an agreement requiring the corporate defendant to hold tax refund proceeds in trust and remit a percentage to the plaintiff.

The corporate director signed the agreement and later acknowledged the debt but failed to remit the funds.

The court held that the agreement created a trust over the tax refunds and that the corporation breached that trust by retaining the funds.

Applying constructive trustee principles, the court found the director personally liable because she knew of the trust, controlled the funds, and knowingly participated in the breach.

Summary judgment was granted against both defendants.