Courtney Vanessa Raphael

The tenant and landlord brought cross-applications regarding a commercial lease dispute arising during the COVID-19 pandemic.

The parties had agreed to a temporary rent reduction during the lockdown, but disputed its duration and whether the landlord was obligated to apply for the Canada Emergency Commercial Rent Assistance (CECRA) program.

The court found the rent relief agreement validly terminated in August 2020 and that the landlord made no binding promise to apply for CECRA.

However, applying the doctrine of spent breach, the court held the tenant could still exercise its lease renewal option provided arrears were paid.

Claims regarding maintenance breaches were directed to trial.

The plaintiff hotel sought an injunction to restrain the neighbouring defendant tire shop from servicing commercial vehicles, alleging the noise constituted a nuisance and breached municipal by-laws and the Environmental Protection Act (EPA).

The court found that the noise from servicing commercial vehicles likely caused an adverse effect, breaching s. 9(1) of the EPA and, consequently, the municipal zoning by-law.

Applying the RJR-MacDonald test, the court granted an injunction restraining the defendant from servicing commercial vehicles between 8:00 p.m. and 9:00 a.m. to prevent irreparable harm to the hotel's reputation.

The applicant sought to quash four municipal by-laws permitting the development of an arena and casino outside the downtown area, alleging statutory non-compliance, procedural unfairness, disqualifying bias, and bad faith.

The court found that the municipality complied with the Planning Act and gaming regulations, provided adequate public consultation, and that the council members did not exhibit disqualifying bias or act in bad faith.

The application was dismissed.

The appellant agreed to sell her home at 45 Moore Avenue, Toronto to the respondents.

Between execution of the Agreement of Purchase and Sale and closing, neighbouring property owners asserted ownership of a two-foot-wide strip of the driveway.

The respondents refused to close, claiming the appellant could not convey clear title to the entire driveway.

The appellant sued for damages; the respondents counterclaimed for return of their deposit.

The motion judge found in favour of the respondents, determining that the APS represented the appellant owned all of what visually appeared to be the functioning private driveway, and that the title defect was significant enough to justify refusing to close.

The appellant appealed, arguing the APS only required sale of a seven-foot-wide driveway (per the 1987 survey) and that any defect was not significant.

The Court of Appeal dismissed the appeal.

This decision addresses four motions in consolidated construction lien actions.

Lien claimants Vestacon Limited and Plan Group Inc. sought to validate their liens against properties owned by 1302207 Ontario Limited (Peter Co.) and 364 Richmond Street West Inc. (Richmond Co.), following the bankruptcy of the tenant, Arc Productions Ltd. The court declared all three Certificates of Substantial Performance (CSPs) invalid due to premature issuance and insufficient property descriptions.

Consequently, Vestacon's lien was found to be timely, having been registered within 45 days of contract completion.

The court also affirmed the validity of Vestacon's Section 19 notices to the landlords, establishing their liability.

Furthermore, Vestacon's lien was extended to include the 364 Richmond Street West property, and leave was granted to add Richmond Co. as a defendant.

For Plan Group's lien, while the CSPs were invalid, a genuine issue for trial was found regarding the exact date of last supply, leading to the dismissal of the owners' motion to declare Plan Group's lien expired.

The defendant municipality brought a motion to strike the plaintiff bridge company's statement of claim, which sought contribution and indemnity for damages and legal costs arising from five nuisance actions brought by local residents.

The residents alleged that the plaintiff's boarded-up houses caused urban blight.

The plaintiff claimed the municipality unlawfully withheld demolition permits, causing the nuisance.

The court dismissed the motion to strike, finding it was not plain and obvious that the claim disclosed no reasonable cause of action, and that the action was not an abuse of process nor barred by issue estoppel.

The plaintiff was granted leave to amend its pleadings to better particularize misfeasance in public office and negligence.

The applicant, a town councillor, brought an application for judicial review regarding a sexual harassment investigation.

The Integrity Commissioner subsequently concluded the complaint could not be determined, rendering the application moot.

The applicant amended his application to seek a declaration of mootness and costs.

The Divisional Court dismissed the application, finding no unusual circumstances to award costs to the applicant for a moot proceeding, and awarded $15,000 in costs to the respondent Town.

The defendants in two construction lien actions, Pier 27 and L Tower, brought motions seeking orders for the plaintiff, Yuanda Canada Enterprises Ltd., to post security for costs totaling over $1 million.

The court dismissed both motions, finding that the defendants failed to establish "good reason to believe" that the plaintiff had insufficient assets in Ontario to pay costs.

The court emphasized the high threshold for such motions, requiring indicia of insolvency or instability, and noted that the certified basic holdback owed to the plaintiff by the Pier 27 Defendants, exceeding the claimed security for costs, constituted a sufficient asset.

The appellant tenant breached a commercial lease covenant to continuously operate its business and to restore the premises upon expiry.

The landlord affirmed the lease and later sued for damages.

The tenant argued the claim was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld the motion judge's finding that the failure to operate the business was a continuing breach, giving rise to a fresh cause of action and a rolling two-year limitation period for each day of non-compliance.

The claim for failure to restore the premises was also brought within the limitation period, as it accrued upon the expiry of the lease.

Following a successful summary judgment motion dismissing the plaintiff's claims in one of two proceedings, the court issued a supplementary endorsement to finalize the consolidation order and determine costs.

The court rejected the defendants' request to require pre-clearance of the plaintiff's Consolidated Statement of Defence.

On costs, the court declined to award substantial indemnity costs, finding partial indemnity appropriate.

Considering the plaintiff's financial circumstances and the defendants' over-lawyering, the court fixed costs at $30,000 payable to the defendants.

The plaintiff, former CEO of the defendants, sued for wrongful dismissal and related torts, alleging the defendants were common employers with his bankrupt direct employer and conspired to place it into bankruptcy to avoid paying his severance.

The defendants moved for summary judgment.

The court granted the motion and dismissed the plaintiff's claims, finding the tort claims were an impermissible collateral attack on the bankruptcy orders and lacked evidentiary support.

The court also held that the written employment agreements precluded a finding of common employer liability, and that a release executed by the plaintiff in favour of the bankrupt employer's trustee operated to release the defendants as alleged joint debtors in any event.

The appellants asserted an oppression claim under s. 248 of the Business Corporations Act, alleging misappropriation of funds from a widely held public company and seeking to recover those funds for the company.

The motion judge struck the claim, finding it was solely that of the company and had to be pursued as a derivative action with leave of the court.

The Court of Appeal dismissed the appeal, holding that where a claim seeks to recover solely for wrongs done to a public corporation and does not allege harm to the complainant's individualized personal interests, it must be pursued as a derivative action.

Shareholder plaintiffs commenced an action alleging that directors and officers of a publicly traded corporation engaged in improper transactions and that certain third parties knowingly assisted in those transactions.

The moving defendants sought to strike the statement of claim, arguing that the claim improperly sought recovery for losses suffered by the corporation and therefore required leave to proceed as a derivative action under s. 246 of the Ontario Business Corporations Act.

The court held that the plaintiffs’ claim, which sought disgorgement of funds to the corporation, was fundamentally derivative in nature and could not proceed as an oppression claim in the circumstances of a large publicly traded corporation.

The court distinguished appellate authority permitting overlap between oppression and derivative remedies in closely held corporations.

The statement of claim was struck without prejudice to the plaintiffs applying for leave to bring a derivative action.

Following a summary judgment motion concerning limitation defences in a commercial lease dispute, the court determined the appropriate award of costs and interest.

The defendant had been partially successful on the motion, particularly on a limitation argument affecting the recoverable quantum of damages under a liquidated damages clause.

The court held that the defendant achieved meaningful success and was entitled to recover a significant portion of its partial indemnity costs.

However, the plaintiff was awarded costs related to an issue concerning rent arrears that could have been resolved earlier.

Net costs were awarded to the defendant with pre‑judgment interest payable to the plaintiff on the rent arrears component.

A commercial landlord sued a tenant for rent arrears, liquidated damages under a continuous‑operation clause in a lease, and damages for failure to restore leased premises at the end of the lease.

The tenant moved for summary judgment arguing the arrears were paid and the remaining claims were statute‑barred.

The court held that liquidated damages under the continuous‑operation clause were not "rent" within the meaning of the Real Property Limitations Act but were damages governed by the two‑year limitation period under the Limitations Act, 2002.

Because the breach was continuous, the landlord could recover only damages accruing within two years before the action was commenced.

The restoration claim was not time‑barred because the obligation arose only upon termination of the lease.

The plaintiffs brought certification motions under the Class Proceedings Act, 1992 relating to falling balcony glass panels from three condominium developments in Toronto.

Owners and residents alleged negligence, nuisance, and breach of contract against developers, builders, and related entities after balconies were sealed and glass panels replaced following safety concerns.

The defendants consented to certification subject to three caveats regarding class definition wording, certification of an aggregate damages issue, and the viability of a collateral contract claim against a developer.

The court certified the actions as class proceedings, rejecting the proposed change to the class definition and permitting the collateral contract claim to proceed as a common issue.

However, the court declined to certify a proposed aggregate damages issue due to appellate authority interpreting s. 24(1)(c) of the Class Proceedings Act as prohibiting random sampling of class members to determine damages.

The appellant municipality appealed the dismissal of its motion for summary judgment, which sought to dismiss the respondent's claim for $8.9 million in unfunded transit liabilities as statute-barred.

The dispute arose from a by-law transferring transit responsibilities from the appellant to the respondent, which required the parties to negotiate the allocation of unfunded liabilities.

The Court of Appeal held that the limitation period did not begin to run until the appellant's municipal council passed a formal resolution denying responsibility and refusing to arbitrate, as the by-law imposed an ongoing obligation to negotiate.

The appeal was dismissed.

The appellant employee appealed a trial judge's finding that his employer had just cause to dismiss him.

The employee had consumed four beers, driven a company vehicle without authorization, crashed it, and subsequently pled guilty to driving with a blood alcohol level over 80 milligrams.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that this constituted serious misconduct warranting dismissal despite a previously unblemished employment record.

The moving municipality sought summary judgment dismissing an action as statute‑barred under the Limitations Act, 2002.

The dispute arose from a by‑law transferring responsibility for public transit assets and liabilities from lower‑tier municipalities to a regional municipality, including unresolved responsibility for unfunded employee liabilities.

The moving party argued the two‑year limitation period began when the by‑law took effect or when negotiations and an arbitration clause permitted referral to arbitration.

The court held that a permissive arbitration clause stating parties “may” proceed to arbitration does not trigger the limitation period.

The claim was discoverable only when municipal council formally passed a resolution denying responsibility and refusing arbitration, as municipal staff cannot bind the municipality without delegated authority.

Following an appeal, the Court of Appeal for Ontario issued a costs endorsement.

The court rejected the respondents' request for substantial indemnity costs and the appellants' request for no costs.

Instead, the court awarded costs on a partial indemnity basis, ordering the appellants to pay a total of $64,000 to the various respondents.