David P. Preger

The court determined costs following cross-motions arising years after a trial judgment that had found an enforceable agreement for the purchase and sale of shares.

The defendant had unsuccessfully brought a motion for directions and was found in contempt for attempting to alter the terms of the agreement previously confirmed by the court and upheld on appeal.

The successful parties sought substantial indemnity costs, relying on an unaccepted settlement offer and arguing that the defendant had unnecessarily prolonged the litigation.

The court held that the defendant’s continued attempts to revisit the concluded issues and delay completion of the transaction warranted costs on a substantial indemnity basis.

Costs of $12,650 inclusive of fees and disbursements were awarded and ordered deducted from funds payable under the original judgment.

The defendant brought a motion seeking directions for the completion of a share purchase and sale agreement that had been confirmed by a prior trial judgment.

The moving party sought directions regarding tax structure, adjustments related to a claimed capital gains exemption, interest, and other closing mechanics.

The responding parties opposed the motion on the basis that the court was functus officio and brought a cross-motion alleging contempt for failure to comply with the earlier judgment.

The court held that it lacked authority to provide further directions because the judgment had already finally determined the terms of the transaction.

However, the court found the moving party deliberately failed to comply with the judgment beyond a reasonable doubt and was in contempt.

Orders were made requiring completion of the share transfer and authorizing a representative of the successful parties to execute documents if the defendant failed to comply.

The successful appellant sought costs of the appeal and a stay motion.

The respondent and the Receiver argued that costs should be in the cause or paid from funds held in trust, citing special circumstances including the matter returning to the Superior Court and the Receiver managing the property without rent payments.

The Court of Appeal found no reason to depart from the usual rule that a successful party is entitled to costs forthwith, and awarded costs to the appellant payable jointly and severally by the respondent and the Receiver.

The appellant landlord appealed an order regarding a commercial lease dispute.

The issues included the commencement date of the lease, the commencement date for parking space rent, and the payment of a leasehold improvements allowance.

The Court of Appeal upheld the application judge's findings that the lease commenced when the demising walls were built and the premises were delivered, and that parking rent commenced when the parking spaces were turned over.

The court amended the order on consent to direct the leasehold improvements allowance to be paid directly to the sub-tenant.

The appeal was otherwise dismissed.

The appellant, Home Depot, appealed orders authorizing a receiver to sell a property free and clear of Home Depot's leasehold and equitable interests.

The motion judge had refused to draw inferences regarding whether the first mortgagee had impliedly consented to Home Depot's lease, stating he could only rely on undisputed facts.

The Court of Appeal allowed the appeal, holding that the motion judge erred in law by applying an incorrect standard of proof and failing to draw reasonable inferences from the evidence.

The matter was remitted for a new hearing.

The moving party, a commercial tenant who built a store on the subject property, sought a stay of an order approving the sale and vesting of the property free and clear of its interests pending appeal.

The court granted the stay to preserve the status quo, finding the moving party would suffer irreparable harm if its appeal became moot.

To alleviate prejudice to the responding party mortgagee, the moving party was ordered to continue paying rent into trust and to deposit a $100,000 letter of credit.

The appellants appealed a decision granting priority to the respondent's equitable mortgage over their registered mortgage.

The Court of Appeal upheld the application judge's finding that the appellants had actual notice of the intended priority of the respondent's mortgage, meaning s. 93(3) of the Land Titles Act did not preclude the equitable mortgage from having priority.

The appeal was dismissed, with minor amendments to the formal order regarding subsequent encumbrancers and notice for power of sale.

The appellants appealed a trial judgment enforcing an Indemnity Agreement and collateral demand mortgages.

The Court of Appeal upheld the trial judge's findings that the Indemnity Agreement was a specialty subject to a 20-year limitation period and that the action on the collateral mortgages was brought within the 10-year limitation period, which commenced when moneys were advanced under the primary indemnity obligation.

However, the Court allowed the appeal in part, finding that the trial judge erred by granting judgment on the mortgage covenants for an amount in excess of the primary indemnity debt, as the mortgages were collateral security.

The appellants defaulted on a commercial mortgage, prompting the respondent mortgagee to issue a Notice of Sale and accept an offer to purchase the property.

The appellants subsequently obtained a higher offer and sought to enjoin the sale, arguing the Notice of Sale was defective and the accepted offer was improvident.

The application judge declined to enjoin the sale, and the sale closed before the appeal was heard.

The Court of Appeal dismissed the appeal, finding the Notice of Sale was reasonable and the mortgagee could not be restrained from exercising its power of sale after entering into a binding agreement in good faith.

The appellants appealed a trial judgment dismissing their claim for conveyance of lands and granting the respondent's counterclaim for occupation rent based on unjust enrichment, trespass, and registering a certificate of pending litigation without a reasonable claim.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's refusal to allow the appellants to discontinue their action on the first day of trial, her decision to allow post-trial pleading amendments, or her assessment of damages for trespass and the aborted sale.

The appellants appealed a motion judge's order enforcing a settlement agreement for the purchase of shares for $275,000.

The Court of Appeal upheld the finding that the settlement was not contingent on a corporate reorganization and that payment was due within a reasonable time.

However, the Court allowed the appeal in part, finding that the motion judge erred in ordering an additional payment for tax consequences, as the $275,000 was inclusive of taxes.

The Court also reduced the motion costs from substantial to partial indemnity, finding that a letter sent by the respondent did not constitute a Rule 49 offer.

The appellant appealed an order finding him in contempt of a Mareva injunction for depleting his self-directed RRSP and imposing various sanctions.

The Court of Appeal upheld the contempt finding but found the sanctions, which effectively granted final judgment to the respondent on multiple claims, were disproportionate to the disobedience.

The Court set aside the disproportionate sanctions, including the striking of the appellant's defence, and substituted an order requiring the appellant to pay the value of the depleted RRSP into court as security.