Christopher M. Stanek

This is a costs endorsement following the dismissal of a motion for an injunction.

The respondent sought costs in the amount of $116,344.59, including a claim for substantial indemnity costs based on offers to settle.

The court considered whether costs should be reserved to trial or awarded forthwith.

While the general rule is that costs on unsuccessful injunction motions should be paid forthwith, the court found that costs should be reserved to the cause based on the particular circumstances of the case, including the respondent's delivery of an undertaking that addressed the applicant's concerns and formed the basis for the dismissal.

A construction lien dispute arising from the termination of a mechanical subcontract.

The plaintiff, a mechanical contractor, claimed a lien for unpaid work and damages for wrongful termination.

The defendant, the construction manager, terminated the subcontract citing multiple defaults including failure to provide adequate manpower, delays in completing critical work, and failure to correct deficiencies.

The court found the defendant properly exercised its contractual right to terminate based on the plaintiff's failure to properly and diligently perform the work, but awarded the plaintiff the net unpaid balance of the subcontract after deducting the defendant's completion costs and other back-charges.

The applicants sought a permanent or interlocutory injunction to prevent the respondent from interfering with their easement rights over a laneway.

The respondent, a non-profit charitable corporation, intends to construct a long-term care home and has proposed restrictions to the laneway width and temporary closures.

The court dismissed the motion for an interlocutory injunction, finding that while the applicants demonstrated a substantial issue to be tried, they failed to establish irreparable harm.

The court noted that the applicants had previously agreed to similar restrictions in a Memorandum of Understanding in exchange for removal of a restrictive covenant, and that any damages would be quantifiable.

The balance of convenience favoured the respondent's development of the long-term care facility.

This action concerned a Distribution Agreement between MJL Enterprises Inc. (plaintiff) and SAL Marketing Inc. (defendant) for MJL's software, iSTAR.

The plaintiff sought damages for alleged breach of contract, including failure to market the software, non-payment of invoices for development work, and copying of software features.

The defendant maintained it was a standard distribution agreement, the software was not marketable, invoices were not properly approved per the contract, and no copying occurred.

The court found no breach of the Distribution Agreement by the defendant, that the invoices were not issued in compliance with the contract, and that there was no evidence of software copying, misrepresentation, fraudulent misrepresentation, or breach of confidence.

All claims for damages were dismissed.

The applicant sought a declaration that it had provided a valid and enforceable notice of extension under a 2015 lease.

The court dismissed the application, finding that the applicant and respondent had entered into a new binding agreement on November 24, 2021, which superseded the original lease terms.

Consequently, the applicant could not extend the 2015 lease by notice of extension and was ordered to pay past due rent and costs to the respondent.

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 applicant, J. Lang Management Inc., brought a motion for a certificate of pending litigation (CPL) over the Jordon Lands, asserting a contractual right to a mortgage over the property to secure asset management fees.

The respondents opposed, arguing the fees were not earned or due.

The court found that the applicant raised a triable issue regarding its interest in the land and that the balance of equities favored granting the CPL.

The respondents' offer of alternative security was rejected as it would effectively rewrite the parties' negotiated commercial agreement and diminish the applicant's bargained-for protection.

The applicant, J. Lang Management Inc., brought a motion for a certificate of pending litigation (CPL) over the "Jordon Lands" based on a contractual term in an asset management agreement.

This term stipulated that the respondents would grant a mortgage over the Jordon Lands to secure asset management fees if the applicant had a reasonable apprehension of non-payment.

The respondents argued the fees were not owed and that the applicant had provided no valuable services.

The court found that the applicant had raised a triable issue regarding its interest in the land and that granting the CPL was just and equitable.

The court rejected the respondents' proposed alternative security, emphasizing the importance of upholding the specific security terms negotiated in the commercial agreement.

This is the third installment of a trial to determine the fair value of a corporate entity and other damages owed by an estate, following previous findings of oppression.

The court addressed complex accounting issues, including the outstanding balance of a shareholder loan, financing fees, and the ownership interests and loan obligations of added parties in related entities.

The court made specific findings on these financial adjustments, leading to a significant payment ordered from the estate to the applicant.

The decision also clarified the application of res judicata in multi-stage proceedings and emphasized the consequences for parties responsible for poor financial record-keeping.

This appeal concerned the sale of Lash Point, a family cottage property owned by a non-profit corporation (LPAC).

Family members were divided between "Remainers" (who wanted to keep the property) and "Departers" (who wanted to sell their interests).

A lower court initially ordered a staged buy-out, but due to delays, a motion judge later approved an en bloc sale of the entire property to third parties, reversing the original plan.

The appellants (Remainers and LPAC) appealed, arguing the motion judge lacked jurisdiction to vary the original order and erred in approving the sale without satisfying the principles for sale approval in receivership contexts (Soundair principles).

The Court of Appeal affirmed the motion judge's jurisdiction to vary the order but found that the sale approval was flawed as it did not meet the Soundair principles, particularly regarding efforts to obtain the best price and the integrity of the sales process.

The appeal was allowed, the sale order set aside, and the Receiver was directed to develop a proper sales process for the entire property.

The defendant, Pacific Mortgage Group Inc., brought a motion seeking leave to introduce a late-served expert report from Duff & Phelps in a claim on a promissory note and counterclaim alleging undisclosed liabilities.

The court had previously issued an order precluding the service of expert reports due to the defendant's "cavalier and unacceptable" approach to compliance with the Rules of Civil Procedure.

The motion was opposed by the plaintiff and other parties, who argued that admitting the report would cause prejudice and further delay.

The court applied the three-part test from Gardner v Hann, considering the reason for non-compliance, its effects, and fairness in the circumstances.

Finding no adequate explanation for the delay, significant prejudice to the opposing parties, and a disregard for court orders, the court denied leave to introduce the expert report.

This is a costs endorsement following the dismissal of the defendants' motion for summary judgment.

The plaintiffs, as the successful parties, sought costs on a partial indemnity scale.

The defendants argued their motion was reasonably brought and narrowed issues, and that the requested costs were excessive.

The court awarded costs to the plaintiffs, fixing fees at $41,049 and disbursements at $792.40, totaling $47,280.78 including HST, to be paid within 30 days.

The court applied a 60% partial indemnity rate, considering the significance and complexity of the underlying motion.

The Third Parties, Jimmy K. Sun and Sun Partners, brought a motion for summary judgment to dismiss the defendants' Third Party Claim for contribution and indemnity.

The motion was based on the expiry of the limitation period under the Limitations Act, 2002.

The court found that Section 18 of the Act establishes an absolute two-year limitation period from the date the first alleged wrongdoer was served with the claim, and that the doctrine of fraudulent concealment did not apply to extend this period.

The Third Party Claim was commenced more than two years after the defendants were served with the Statement of Claim.

The applicant, Claude Bitton, brought an action for breach of contract and an application for an oppression remedy against Alain Checroune, A. Checroune Realty Corporation, and 500 Sheppard Avenue West Ltd. The parties had intended to jointly develop a condominium property.

The court found that a binding agreement existed regarding the assumption of a mortgage, registration of new mortgages, and share transfer, but no enforceable agreement on development funding or management.

The court concluded that Checroune and A. Checroune Realty engaged in oppressive conduct by failing to discharge the CMLS mortgage, improperly registering a second mortgage, and failing to fund half of the corporation's ongoing expenses.

However, the court found no damages caused by Checroune's conduct, attributing project stagnation to Bitton's inaction.

The court ordered the invalidation of a Notice of Sale, discharge of the CMLS mortgage, partial discharge of Bitton's mortgage, and the sale of A. Checroune Realty's shares in 500 Sheppard Avenue West Ltd. to Bitton, with further submissions required for valuation.

The defendants moved for summary judgment to dismiss the plaintiffs' action concerning a share purchase agreement for a commercial property.

The core issue was whether the defendant vendor used "best efforts" to satisfy a condition precedent requiring all litigation affecting the property to be resolved by the closing date.

The plaintiffs sought specific performance, arguing the condition was not met due to the defendant's breach.

The court found a genuine issue requiring a trial regarding the defendant's best efforts, dismissing the summary judgment motion.

The court also declined to discharge the plaintiffs' certificate of pending litigation or set aside an interlocutory injunction, and refused partial summary judgment on the defendants' counterclaim for unpaid rent due to intertwined factual issues.

The plaintiff, Cargojet Airways Ltd., brought an action for breach of contract and negligence against Aveiro Constructors Limited and Hatch Mott MacDonald Ltd. regarding defects in an aircraft hangar's insulation.

The defendants moved for summary judgment, arguing the action was barred by the Limitations Act, 2002, and a contractual limitation period for Hatch.

The court found that Cargojet had sufficient knowledge of the material facts to commence a claim by May 3, 2010, and failed to act with due diligence.

Consequently, the action against Aveiro was statute-barred by the two-year statutory limitation period, and the action against Hatch was barred by its twelve-month contractual limitation period.

Both motions for summary judgment were granted, and the action was dismissed.