Edward Hiutin

The court considered a summary judgment motion by Arista Homes (Boxgrove Village) Inc. for forfeiture of a deposit after a failed real estate transaction.

The defendant, Ding Ding, sought relief from forfeiture.

The court applied the test for relief from forfeiture, finding the deposit proportionate and no unconscionability.

The motion was granted and the deposit forfeited to Arista.

The appellant, Anna Marlena Butryn, appealed a summary judgment order enforcing minutes of settlement in mortgage enforcement proceedings.

She argued she signed the minutes under undue influence and duress from her husband, John Chetti, and without independent legal advice.

The Court of Appeal upheld the motion judge's decision, finding no evidence the respondent had knowledge of the alleged undue influence/duress, that the minutes of settlement provided significant benefits to the appellant, and that she was represented by experienced litigation counsel, making independent legal advice from a separate lawyer unnecessary.

The court reiterated that a spousal relationship does not automatically create a presumption of undue influence requiring third-party inquiry unless coupled with a manifestly disadvantageous transaction.

This appeal arose from two actions tried together concerning breaches of a license agreement and fiduciary duties related to powder-coating business ventures.

The trial judge found that Robert Langlois breached a License Agreement and fiduciary duties to the "ACS plaintiffs" (7868073 Canada Ltd. et al.), with Jeffrey Sugar and Gary Sugar knowingly assisting.

Profits were disgorged to the ACS plaintiffs, and a separate action by Gary Sugar was dismissed as moot.

The appellants (Gary Sugar and the "Langlois appellants") challenged the trial judge's findings on the License Agreement's validity and termination, the existence and continuation of fiduciary duties, and the misappropriation of corporate opportunities.

The ACS plaintiffs cross-appealed the costs award.

The Court of Appeal dismissed all appeals and denied leave to cross-appeal costs, affirming the trial judge's conclusions that the License Agreement was valid and not terminated, that fiduciary duties continued, and that corporate opportunities were misappropriated.

The Applicant condominium sought an order appointing an arbitrator and confirming the arbitrator's jurisdiction over issues in its Fresh as Amended Notice of Arbitration.

The Respondent developer sought to quash the notice, arguing repudiation of a prior agreement to appoint a specific arbitrator and that a third party (Gooderham) should be involved due to new matters.

The court granted the Applicant's request to appoint the agreed-upon arbitrator, finding no repudiation.

However, the court deferred the determination of the arbitrator's jurisdiction, mandate, and whether the third party should be joined to the arbitrator himself, consistent with the principle that arbitrators can rule on their own jurisdiction.

The plaintiffs and the defendant Robert Langlois entered into a joint venture to operate a powder-coating business, ACS.

Mr. Langlois licensed his powder-coating know-how and expertise to ACS.

Before ACS generated any revenue, Mr. Langlois secretly formed a competing business, PCS, with the defendants Jeffrey Sugar and Gary Sugar.

Mr. Langlois diverted corporate opportunities, including a lucrative powder-coating contract, to PCS and later to VML.

The plaintiffs sued for breach of contract, breach of fiduciary duty, and knowing assistance.

The court found that Mr. Langlois breached the Licence Agreement and his fiduciary duties by misappropriating corporate opportunities.

The court also found that Jeffrey Sugar and Gary Sugar knowingly assisted in these breaches.

The court ordered disgorgement of profits and repayment of loans and expenses, holding the defendants jointly and severally liable.

The defendants (purchasers) brought a motion for summary judgment against the plaintiff (builder/vendor) for the return of their deposit and damages following a failed real estate transaction.

The plaintiff had elected to affirm the Agreement of Purchase and Sale after an anticipatory repudiation by the defendants, keeping the closing date alive.

On the closing date, the defendants tendered the closing funds, but the plaintiff failed to provide a substantially completed home ready for occupancy.

The court found the plaintiff in fundamental breach of the agreement, entitling the defendants to terminate the contract.

The defendants were awarded the return of their $55,000 deposit and $25,000 in damages for the costs of borrowing the closing funds.

The court fixed the costs of a motion where the defendant successfully opposed the registration of a Certificate of Pending Litigation (CPL) on its property.

The defendant sought partial indemnity costs of $51,051.67, arguing it made a Rule 49 offer and the motion was complex.

The court found the Rule 49 offer invalid because it required unanimous acceptance by all moving parties and third-party consent.

The court also found the costs claimed completely unreasonable and excessive for a CPL motion, noting that counsel spent 222 hours on the matter.

The court fixed costs at $6,000, payable 75% by one group of plaintiffs and 25% by another.

The plaintiffs, investors in a real estate development, sought to register a Certificate of Pending Litigation (CPL) against three lots and to register a preservation order regarding a vendor take-back mortgage on title.

The property had been sold to a third-party developer, Brampton G&A. The court dismissed the motion, finding that the parties had previously agreed not to register orders on title, the property was an investment property rather than unique, and the existing preservation order requiring mortgage payments to be paid into court provided sufficient protection without encumbering the third party's title.

This costs endorsement addresses three motions within a consolidated proceeding.

The court awarded substantial indemnity costs to the Adair parties (defendants) against the Pichelli parties (plaintiffs) for their successful summary judgment motions, finding that the allegations of fraud and malfeasance were unsubstantiated.

For the summary judgment motion brought by the Vuletic defendants against the Pichelli parties, costs were reserved to the trial judge due to unresolved factual disputes, including an allegation of forgery.

Finally, for a motion to vary a previous decision regarding Ante Kegalj, the Pichelli parties were awarded partial indemnity costs, significantly reduced from their claim, due to the straightforward nature of the motion and issues with their bill of costs.

The plaintiff, Fortress Carlyle Peter St. Inc., sought costs following its successful summary judgment motion for specific performance.

The defendant, Ricki’s Construction and Painting Inc., challenged the plaintiff's requested all-inclusive sum of $100,000 as excessive and unreasonable, proposing $50,000, and argued for divided success.

The court found the underlying motion was not simple, the plaintiff's costs claim reasonable with a $10,000 reduction, and rejected the argument for divided success.

The court awarded the plaintiff $90,000 in all-inclusive costs.

The plaintiff, Fortress Carlyle Peter St. Inc., brought a summary judgment motion for specific performance of an Agreement of Purchase and Sale for a property in Toronto, or alternatively, relief from forfeiture of a $1 million deposit.

The defendant, Ricki’s Construction and Painting Inc., brought a cross-motion for summary judgment to dismiss the action.

The court granted specific performance to the plaintiff, finding that the defendant's conduct, including delayed delivery and deceitful alteration of an estoppel certificate, disentitled it from insisting on "time of the essence" for the closing.

The property's uniqueness was also a factor supporting specific performance.

The defendants in multiple related actions brought motions for summary judgment against the Pichelli plaintiffs, who were investors in a real estate development project.

The plaintiffs alleged that the developers (the Vuletics), a title holder (Kegalj), and the developers' lawyers (the Adairs) engaged in fraudulent and improper conduct.

The court granted summary judgment dismissing the claims against the Adair defendants, finding that the lawyers owed no duty of care to the non-client investors.

The court also granted summary judgment dismissing the claims against Kegalj, finding no relationship or duty owed to the plaintiffs.

However, the court dismissed the Vuletics' motion for summary judgment, finding that genuine issues of credibility and conflicting versions of the lot purchase agreements required a trial.

This case involved two applications arising from a failed condominium purchase and sale.

The purchaser sought a refund of her deposit, arguing she validly rescinded the agreement due to the vendor's failure to complete common elements (parkette and gates), which she claimed constituted a material change.

The vendor contended the purchaser breached the agreement by failing to close, leading to termination, and that rescission was not possible after termination.

The court found that the purchaser had no right to refuse closing based on uncompleted common elements, as the agreement explicitly stated this would not deem the unit incomplete.

Furthermore, a change in the construction schedule for amenities was not a "material change" under the Condominium Act, 1998.

The court affirmed the common law principle that an agreement cannot be rescinded once it has been validly terminated.

Consequently, the purchaser's application for a deposit refund was dismissed, and the vendor's application was allowed, confirming the purchaser's breach, the vendor's right to terminate and retain the deposit, and the right to sue for further damages.

A trial of an issue was ordered to determine the quantum of damages exceeding the forfeited deposit.

The defendants brought motions for security for costs against the plaintiffs, and the plaintiffs (as defendants by counterclaim) brought a cross-motion for security for costs against the plaintiffs by counterclaim.

The court granted the Langlois defendants' motion against the corporate plaintiffs, finding good reason to believe they had insufficient assets in Ontario.

The court dismissed the motion by a self-represented lawyer defendant, finding no evidence of opportunity cost to justify an award of security for costs in his favour.

The court also dismissed the plaintiffs' cross-motion, as the counterclaim was largely equivalent to a defence to the main action.

The applicant condominium corporation sought relief from an allegedly oppressive shared facilities agreement (CRA) imposed by the declarant developer, and brought several actions for construction deficiencies and property management breaches.

The court found the CRA produced an oppressive result due to the conflicted manager's conduct and amended the agreement to allow the condominium to terminate the manager without cause.

The court also ruled on multiple summary judgment motions regarding construction deficiencies, dismissing the first action as a nullity for lack of statutory notice to owners, and granting summary judgment on various specific deficiency claims based on limitation periods and warranty coverage.

Damages were awarded for specific proven deficiencies and against the former property manager for failing to maintain insurance records.

Following an order granting the plaintiff leave to discontinue the action, the court addressed the quantum of costs payable to the defendants.

The defendants sought over $25,000 in partial indemnity costs for the relevant period.

The court reviewed the bill of costs and disallowed several amounts, including a double-counted HST charge, time spent after the service of the notice of discontinuance, work related to unsuccessful security for costs proceedings, and excessive communication charges.

Applying the principles under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court fixed costs at a fair and reasonable amount significantly lower than claimed.

After accounting for a set-off from costs previously awarded to the plaintiff on appeal, the net amount owing was reduced accordingly.

Following dismissal of an appeal from a Master's decision, the court addressed costs.

The respondent had successfully resisted the appeal and sought costs.

Considering the straightforward nature of the issue and the modest materials involved, the court found it appropriate to award a fixed amount.

Costs were awarded on a lump-sum basis payable within 90 days, with the possibility of set-off against other outstanding cost orders in the proceeding.

The applicant condominium corporation sought an order appointing an arbitrator pursuant to a Complex Reciprocal Agreement.

The respondents agreed on the choice of arbitrator but argued the matters at issue were outside the arbitrator's jurisdiction and that overlapping court proceedings precluded arbitration.

The court applied the competence-competence principle, holding that challenges to an arbitrator's jurisdiction should generally be resolved by the arbitrator first, unless based solely on a question of law or requiring only superficial consideration of documentary evidence.

Finding that at least one issue (allocation of common costs) arguably fell within the arbitrator's jurisdiction, the court granted the application and appointed the arbitrator.

The applicant landlord sought leave to appeal an arbitrator's decision which found that the respondent tenant was justified in terminating its commercial lease and ceasing rent payments due to a fundamental breach by the landlord regarding a dangerous sub-ceiling.

The Superior Court of Justice granted leave to appeal, finding that the arbitrator's failure to interpret the lease agreement to determine the allocation of repair responsibilities and failure to apply the established legal test for fundamental breach constituted errors of law.

The court set aside the arbitrator's decision and remitted the matter to a new arbitrator for a rehearing.

The defendants moved to set aside an ex parte order extending the time for service of a statement of claim in a construction lien action under the Construction Lien Act.

The court held that the plaintiff failed to provide full and frank disclosure of material facts when seeking the extension, particularly regarding communications with prior counsel and the circumstances surrounding the delay in service.

Applying the principles governing ex parte motions, the court concluded the omitted facts might have influenced the original decision to grant the extension.

The court set aside the extension order, invalidated service of the statement of claim, struck the action, and vacated the registered construction lien and certificate of action.

Conditional directions regarding security for costs and leave to amend the statement of defence were also addressed.