David Schatzker

The plaintiff brought a motion under Rule 45.02 for an order requiring the defendant to pay $180,000 into court from the proceeds of a property sale, pending the final disposition of the action.

The parties had previously entered into a joint venture to invest in real estate, and the plaintiff claimed a one-third interest in the proceeds based on a trust agreement.

The defendant argued the trust agreement was superseded by a subsequent agreement.

The court found that the plaintiff met the three-part test for an order under Rule 45.02, as there was a specific fund, a serious issue to be tried regarding the claim to the fund, and the balance of convenience favoured granting the relief to prevent dissipation of the funds.

The motion was granted.

The moving party defendants brought a motion to vacate a Certificate of Pending Litigation (CPL) that had been registered against a commercial property.

The CPL was originally granted ex parte to Olympia Trust Company, but was never registered.

Instead, a new entity, Bald Eagle Inc., which was never formally added as a plaintiff, obtained and registered a CPL.

Relying on a recent related decision confirming the validity of the underlying mortgage sale, and noting the procedural irregularities in obtaining the CPL, the Master granted the motion and ordered the CPL vacated forthwith.

The applicant tenant operated an adult entertainment club and sought a declaration that a notice of termination from the respondent landlord was invalid.

The tenant argued the lease had been validly extended by oral agreement with the previous landlord, while the new landlord argued the extension violated the Statute of Frauds and was unregistered under the Land Titles Act.

The court found the lease extension was valid due to part performance and binding on the new landlord because it had actual notice of the tenancy.

However, the court held the landlord was not required to maintain the municipal owner's licence for the club.

The court declared the termination notice invalid and granted the tenant relief from forfeiture, providing a reasonable time to obtain its own licence.