Dan Avram Poliwoda

The appellant tenant appealed the dismissal of its application to restrain the respondent landlord from terminating its commercial lease.

The landlord relied on a 30-day termination clause from a 1998 amending agreement.

The tenant argued that subsequent amending agreements, which included a six-month termination clause conditional on redevelopment, indicated the 30-day clause was confined to the 1998 extension term.

The Court of Appeal found the application judge erred by failing to address this key argument regarding contractual interpretation.

The appeal was allowed and the matter remitted for a new hearing.

The plaintiff sought an extension of the set down deadline and directions on scheduling a motion to compel the defendant to produce additional documents, arguing these were required by a prior production order.

The court found the plaintiff's motion was out of time, as the parties had agreed to a timetable for all pre-trial motions, and the plaintiff had not acted within those deadlines.

The court emphasized the importance of case management and procedural fairness, but held that the plaintiff had ample opportunity to bring the motion and declined to grant leave for it to proceed.

The court was asked to settle the wording of a formal order after the associate judge who made the underlying discovery ruling had retired.

The dispute arose because the parties’ previously agreed draft order did not match the wording of the original reasons, and the registrar refused to sign it.

The court held that in settling the order, it could not revisit the merits, infer a different intention, or implement the parties’ own understanding of what had been meant; it had to ensure the order tracked the reasons as written.

The court therefore signed the plaintiff’s revised draft order with some clarifying amendments and made no order as to costs of the settling process.

The plaintiffs moved for default judgment against the Developer Defendants for alleged misappropriation of $9 million.

Concurrently, the Developer Defendants sought to set aside their noting in default and obtain leave to file a Statement of Defence, asserting they had purged previous contempt orders related to a Mareva and Disclosure Order.

The court reviewed the Developer Defendants' efforts to provide an accounting and disclosure, acknowledging remaining gaps but finding that they had done all that was reasonably possible given the circumstances and passage of time.

The court emphasized that perfect compliance was not required to purge contempt.

Consequently, the Developer Defendants' motion to set aside default and for leave to file defences was granted, and the plaintiffs' motion for default judgment was dismissed.

No costs were awarded to either party, as the plaintiffs were justified in bringing their motion given the history of non-compliance.

The plaintiffs brought a motion to determine the appropriate sanction for the Developer Defendants' continuing contempt of a Mareva and Disclosure Order, following a Court of Appeal decision remitting the matter for re-sentencing.

The court found that the defendants had still not purged their contempt, having failed to properly account for the plaintiffs' $9 million investment.

The court sentenced the individual defendants to 30 days of intermittent incarceration, struck the statement of defence, and deemed the defendants noted in default, with leave to apply to file a defence only if they fully purge their contempt.