Brian 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 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 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 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.