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 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 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.