David Gordon Bent

The Plaintiffs, vendors in an aborted residential real estate sale, moved for summary judgment against the Defendants, purchasers who failed to close the transaction.

The purchasers sought an abatement or extension due to a decrease in appraised value and financing issues, which the vendors refused.

The vendors subsequently re-sold the property at a lower price and claimed damages.

The court granted summary judgment to the Plaintiffs, finding the Defendants had repudiated the Agreement of Purchase and Sale and that the Plaintiffs had made reasonable efforts to mitigate their losses.

Damages were awarded, including the loss on resale, interest on a bridge loan, and legal fees, with the deposit to be applied against the total.

A motion to amend the style of cause to correct a defendant's name was also granted.

The plaintiff, 784773 Ontario Limited O/A Lowton Co-Tenancy, brought a motion for summary judgment against the defendants, Michael Larkin and Larkin + Land Use Planners Inc., for misappropriated funds while acting as trustees.

The defendants admitted to misappropriating funds and owing a total of $1,728,304, of which $1,038,616 had already been paid via a partial judgment.

The remaining contentious issue was whether the plaintiff was entitled to the entirety of the remaining $739,926, as the defendants argued it might belong to other group members.

The court found no genuine issue requiring a trial, emphasizing the admitted breach of fiduciary duty and misappropriation, and ruled that the wrongdoer should not benefit from a lack of exacting proof.

The motion was granted, awarding the plaintiff the remaining $739,926, reimbursement for forensic accounting costs, and a declaration that the debt arose from fraud/misappropriation while acting in a fiduciary capacity.

The defendant tenant and guarantor brought a motion to stay the plaintiff landlord's action for rent arrears in favour of arbitration, relying on the arbitration clause in their commercial lease.

The landlord opposed the stay, arguing the matter was a proper one for summary judgment under section 7(2)(5) of the Arbitration Act, 1991.

The court dismissed the motion to stay, finding that the tenant's proposed defences regarding additional rent and mitigation did not raise genuine issues requiring a trial.

The court allowed the litigation to proceed and awarded the landlord $5,000 in full indemnity costs.

The plaintiff brought a motion for partial judgment under Rule 51.06 for $1,038,616, an amount admitted by the defendants to have been misappropriated while acting in a fiduciary capacity as trustees.

The plaintiff also sought a declaration that this debt would survive bankruptcy and substantial indemnity costs.

The court granted partial judgment for the admitted amount, awarded pre-judgment interest, and declared that the debt arose from fraud, embezzlement, misappropriation, or defalcation while acting in a fiduciary capacity.

However, the court declined to make a pre-emptive declaration that the debt would survive bankruptcy, deeming it hypothetical.

Partial indemnity costs were awarded to the plaintiff, and directions were given for scheduling the remaining summary judgment motion.

The defendant insurance broker brought a motion to amend its statement of defence and crossclaim in an action arising from a fire loss where the plaintiff alleged inadequate insurance coverage.

The plaintiff opposed the amendments, arguing they improperly pleaded evidence and argument rather than material facts, contrary to Rule 25.06.

The court granted the motion, finding that the proposed amendments, which detailed construction costs, statements made in meetings, and gross receipts, were relevant to the broker's causation defence and did not clearly offend the rules of pleading.

The moving party sought a determination on whether a handwritten note by the deceased constituted a valid holograph codicil.

The deceased had previously executed a will dividing his estate equally among his three children and transferred his cottage to two of them in joint tenancy.

The handwritten note expressed an intention to provide the third child with a cash equivalent from the estate to compensate for her exclusion from the cottage property.

The court found the note demonstrated a deliberate and final testamentary intention and declared it a valid holograph codicil.

The appellants appealed an order striking their defence for failing to file material as directed by a previous court order.

The Court of Appeal dismissed the appeal, noting that the appellants provided no evidence to explain their failure to satisfy undertakings, did not appear on the return date for a contempt motion, and had a history of dilatory and obstructionist conduct.

The motion judge's discretionary order was entitled to deference and no clear error was found.

The plaintiff sought an interlocutory injunction restraining a former employee and his new company from soliciting or servicing any past or present customers.

The plaintiff alleged the employee was a fiduciary who breached duties by leaving on short notice and soliciting clients.

The court held the plaintiff failed to establish a strong prima facie case that the employee was a fiduciary or that any continuing breach of fiduciary duty existed.

Evidence of irreparable harm was speculative and limited, and the balance of convenience favoured permitting lawful competition by the former employee’s start‑up business.

The motion for an interlocutory injunction was dismissed with costs.

The appellants appealed the dismissal of their claim for specific performance requiring the transfer of property pursuant to a first right of refusal and an agreement of purchase and sale.

They also sought leave to appeal the costs order.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's factual findings that there was no first right of refusal and that the agreement of purchase and sale was unenforceable due to the improbability of obtaining severance.

Leave to appeal costs was also refused.

The plaintiffs sought specific performance of an alleged oral right of first refusal for a 123-acre property, or alternatively, specific performance of a written agreement of purchase and sale for a 10-15 acre severed parcel.

The court found no oral agreement existed for the right of first refusal, and even if it did, it was unenforceable under the Statute of Frauds as the plaintiff's property maintenance did not constitute part performance.

The court also declined to order specific performance of the written agreement because expert evidence established that obtaining the necessary land severance was highly improbable.

The plaintiffs' claims were dismissed and the defendant's counterclaim to validate the transfer and remove certificates of pending litigation was granted.

The appellant landlord appealed a decision finding that its accounting records were insufficient to prove expenses properly chargeable to the respondent tenant as Additional Rent under a commercial lease.

The application judge had previously ruled that the lease did not require the tenant to pay standardized management fees, but allowed the landlord a second hearing to prove actual expenses.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the landlord's materials were insufficient.

The court also upheld the costs award, noting the landlord's failure to respond to settlement offers and its role in prolonging the proceeding.

The moving party sought an order under Rule 45.02 of the Rules of Civil Procedure requiring the defendants and a non-party to pay into court any monies arising from a prospective dealership transaction, alleging entitlement to commission as an independent contractor.

The court considered whether the requirements for payment into court of a specific fund were satisfied, including the existence of a specific identifiable fund, a proprietary claim, a serious issue to be tried, and the balance of convenience.

The evidence showed that only a non-binding letter of intent existed and no binding agreement or completed transaction had occurred.

The court held that a contractual claim for potential commissions does not constitute a proprietary claim to a specific fund and that no identifiable fund existed.

The motion was dismissed as speculative and unsupported by the evidentiary record.

The applicant filed a human rights application alleging age discrimination after she was laid off and a younger, less experienced co-worker was hired permanently.

The respondents requested a summary hearing to dismiss the application for having no reasonable prospect of success.

The Tribunal found that the applicant could potentially establish a prima facie case of discrimination and that there were disputed facts regarding her performance and the personnel agency's knowledge of the alleged discrimination.

The request to dismiss the application was denied, and the matter was ordered to proceed to a full hearing.

The tenants appealed an Ontario Rental Housing Tribunal decision that dismissed their application for rent abatement and damages due to the landlord's failure to repair.

The tribunal had ruled that because the repair issues were addressed in a previous order, the new application was barred by res judicata.

The Divisional Court held that the tribunal erred in law, as the tenants were seeking relief for ongoing breaches and new expenses incurred after the landlord failed to comply with the previous order.

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

The appellant appealed a Small Claims Court judgment awarding the respondent damages for unpaid invoices based on personal guarantees.

The appellant argued the respondent improperly split its claims to stay within the Small Claims Court monetary limit and that the guarantees were unenforceable because no prior written demand was made.

The Divisional Court held that the claims were not improperly split as they were based on separate guarantees for different corporate entities.

However, the court found that a formal demand for payment was a condition precedent to bringing an action on a collateral debt (guarantee).

Since no demand was made, the actions were dismissed.

The respondent's husband failed to pay premiums on a term life insurance policy, causing it to lapse before his death.

The respondent sought relief from forfeiture under section 98 of the Courts of Justice Act to recover the death benefit.

The applications judge granted the relief.

On appeal, the Court of Appeal held that section 98 is not available to revive a lapsed term life insurance policy, as the failure to pay premiums does not constitute a penalty or forfeiture, but rather a simple failure to pay for ongoing coverage.

The appeal was allowed and the application dismissed.