Emily Quail

This consolidated trial addressed multiple disputes between Raymond Nicolini (through Sayward Investments Inc., InSite Construction Management Inc., and King Station Facility Inc.) and Vilson Da Silva (through Leblon Carpentry Inc., Leblon Drywall Inc., and his wife Daenn Monteiro Loureiro).

The court found that Da Silva, Loureiro, and Leblon Carpentry breached a 2019 loan agreement with Sayward, owing $38,909.29.

A 2020 advance from Sayward to Leblon Carpentry and Da Silva was determined to be a loan, not a joint venture, with $203,735.20 owing.

The mortgage on the matrimonial home was held to secure only the 2019 loan, not the 2020 loan, due to lack of spousal consent.

The drywall contract between InSite and Leblon Drywall was found to have a price of $1,330,742, and Leblon Drywall was deemed overpaid, leading to the dismissal of its breach of contract claim.

The parties were found to have mutually terminated the drywall contract, releasing each other from claims for deficiencies and overpayments.

Claims of oppression and conspiracy brought by InSite were dismissed, as InSite was not a proper complainant for oppression and the lien claim lacked a predominant purpose to injure.

The Court of Appeal for Ontario issued a costs endorsement following an appeal where the trial judge's liability finding was upheld, but the damages award was set aside for a new hearing.

Due to divided success on appeal, the parties agreed to bear their own appeal costs.

The court varied the trial judge's costs order, reducing the amount payable by the appellant to the respondent by one-third (from $251,706.10 to $167,804.07), reflecting the partial success on appeal and the uncertainty regarding the original offer to settle.

The costs of the new damages hearing were left to the discretion of the presiding judge.

The appellant (vendor) appealed a trial judgment finding it breached an Agreement of Purchase and Sale (APS) for development lands and awarding the respondent (purchaser) over $11 million in lost expected profits.

The Court of Appeal upheld the trial judge's finding of liability, confirming the vendor's breach for wrongly asserting the purchaser failed to pay a further deposit and that the purchaser was ready, willing, and able to close without tendering.

However, the Court allowed the appeal on damages, ruling that the trial judge erred by departing from the normal measure of damages for real estate breaches (difference between contract price and market value on closing date).

The Court clarified that the remoteness test determines the *type* of loss, not the *measure*, and that market value inherently accounts for development potential.

A new hearing was ordered to assess damages using the normal measure.

The plaintiff, having won a wrongful dismissal trial for $15,701.71, sought substantial indemnity costs of $54,777.36.

The defendant argued against costs, noting the award was within Small Claims Court jurisdiction and significantly less than the plaintiff's initial $200,000 claim.

The court found the case should have been in Small Claims Court due to the monetary value and the plaintiff's overreach in claims (aggravated/punitive damages, Human Rights Code) that were dismissed.

The defendant's Rule 49 offer was reasonable.

The court dismissed both parties' claims for costs, finding no costs payable to either party.

The plaintiff, a 69-year-old esthetician, was terminated without cause after working for the defendant and its predecessor for 20 years.

The court found the termination clause in her employment agreement unenforceable due to a lack of fresh consideration.

Recognizing her prior service with the bankrupt predecessor employer, the court awarded a total notice period of 10 months, less the working notice already provided, resulting in 7.25 months' pay in lieu of notice.

Claims for aggravated damages, punitive damages, and age discrimination were dismissed.

The applicant sought a declaration of an interest in an abandoned, landlocked parcel of land adjacent to its property, and an order rectifying the land register.

The registered owner had not been seen or heard from since acquiring the property in 1938.

The court dispensed with service as the respondent could not be located.

While the court rejected the applicant's claim based on mutual mistake, it found that the applicant and its predecessors had established adverse possession by openly and continuously farming the land as their own for over 65 years.

The court ordered the land register to be rectified to show the applicant as the registered owner.

The plaintiff real estate brokerage sought an interlocutory injunction to enforce restrictive covenants against several former agents who left to join a competing brokerage.

The court dismissed the motion, finding the spatial restrictions in the agreements ambiguous and the temporal limitations unreasonable.

The court also found the plaintiff did not come with clean hands, having previously breached its agreement with the lead defendant by bringing in a competing team without consultation.

The plaintiff failed to establish a strong prima facie case, irreparable harm, or that the balance of convenience favoured an injunction.

Following the dismissal of the plaintiff's motion for a certificate of pending litigation, the successful defendant sought costs.

The plaintiff argued costs should be reserved to the trial judge or reduced.

The court rejected the plaintiff's arguments, finding it appropriate to fix costs immediately.

Because the defendant had made an offer to settle that was as favourable as the outcome, the court awarded partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total costs at $30,655.83.

The plaintiff purchaser brought an action for damages against the defendant vendor for breach of an amended Agreement of Purchase and Sale for a 45-acre development property.

The vendor had repudiated the contract, claiming the purchaser failed to pay a $400,000 deposit.

The court found that the amended agreement implicitly removed the deposit requirement, meaning the vendor's repudiation constituted an anticipatory breach.

The court held that the purchaser was ready, willing, and able to close, and was not required to tender given the vendor's clear repudiation.

The court rejected the vendor's argument that the purchaser failed to mitigate, finding the property was unique and no comparable properties were available.

The court awarded the purchaser $11,122,345.27 in damages for lost expected profits, relying on the plaintiff's expert planner.

The defendants brought a motion to discharge a certificate of pending litigation (CPL) obtained by the plaintiff without notice against a commercial property.

The plaintiff, a shareholder in the company that originally purchased the property, alleged the property was fraudulently conveyed to another company.

The court found that while the plaintiff met the threshold test for claiming an interest in land, he failed to make full and fair disclosure of material facts on the ex parte motion, specifically regarding prior litigation and settlement involving the property.

Balancing the equities, including the non-disclosure, the fact that the property was not unique, and that damages would be an adequate remedy, the court ordered the CPL discharged without security.

The plaintiff vendor sold a commercial office tower to the defendant purchaser.

The vendor claimed $67,457.38 in post-closing adjustments related to additional rent reconciliations.

The purchaser argued these were 'rent receivables' that the vendor had to collect directly from the tenants.

On a motion for summary judgment, the court interpreted the purchase agreement and found the amounts were general adjustments subject to readjustment between the vendor and purchaser, not rent receivables.

Summary judgment was granted in favour of the vendor.

The appellants were convicted by a jury of importing cocaine and conspiracy to import cocaine, based largely on the testimony and eyewitness identification of a co-conspirator who had already been convicted.

On appeal, the appellants argued the verdicts were unreasonable and challenged the trial judge's jury instructions.

The Court of Appeal found the verdicts were not unreasonable but allowed the appeals and ordered new trials due to errors in the jury charge.

Specifically, the trial judge provided an inadequate Vetrovec caution that distracted the jury from the witness's motive to cooperate with police, and gave boilerplate instructions on eyewitness identification that failed to highlight the specific frailties of the witness's evidence.

The court issued an addendum to its Reasons for Judgment, which previously found certain Option Agreement provisions unconscionable and granted relief from penalty and forfeiture under section 98 of the Courts of Justice Act to the applicants.

This addendum sets the specific terms for that equitable relief, including timelines for construction commencement contingent on the respondent withdrawing an objection and the final disposition of any appeal.

The court also addressed costs, finding the applicants entirely successful and awarding them partial indemnity costs of $111,349.43, rejecting the respondents' arguments for divided success or reduced costs.

The applicants sought a declaration that repurchase and daily penalty provisions in an Option Agreement were unenforceable and relief from forfeiture under section 98 of the Courts of Justice Act.

The respondents brought a cross-application to enforce the agreement.

The court found the provisions unconscionable due to gross disproportionality between the forfeiture/penalty and actual damages, coupled with unfair conduct by the respondents, unequal bargaining power, and inherently unreasonable terms.

The court also determined that the respondent Michael's agent implicitly waived Michael's right to rely on the construction deadline through his conduct.

Consequently, the applicants' request for relief from forfeiture was granted, and the respondents' cross-application to enforce the Option Agreement was dismissed.

The court imposed new, equitable terms for future construction and a revised repurchase price if subsequent defaults occur.

The Applicant, Illumina Holdings Inc., sought immediate payment of $254,195 plus interest from the Respondents, BrandAlliance Inc. and A Brand Company Inc., based on a share purchase Letter Agreement.

The Respondents brought a counter-application seeking rectification of the Letter Agreement due to alleged valuation errors and a declaration that Arora, Illumina's owner and former CFO of BrandAlliance, breached his fiduciary duties.

Alternatively, the Respondents sought consolidation, trial, or arbitration.

The court found the Letter Agreement binding and enforceable, rejecting the Respondents' claims for rectification, breach of fiduciary duty, and arguments for a trial or arbitration.

The court also found that the Respondents' claims were largely statute-barred and that A Brand Company Inc. was liable due to a merger with BrandAlliance.

The applicant estate sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision denying survivor benefits following the death of a firefighter from a heart attack.

The Tribunal found that the statutory presumption for firefighters did not apply because the deceased had not attended a 'fire scene' within 24 hours of the heart attack, and that the injury did not otherwise arise out of and in the course of employment.

The Divisional Court dismissed the application, holding that the Tribunal's decision and its subsequent refusal to reconsider were reasonable and supported by the evidence and applicable policies.

The Crown appealed the acquittal of a respondent charged with committing indictable offences for the benefit of, at the direction of, or in association with a terrorist group under section 83.2 of the Criminal Code.

The respondent was the sole member of his own terrorist group.

The trial judge found the respondent not guilty of the section 83.2 offences but found him not criminally responsible on account of mental disorder (schizophrenia) for the underlying predicate offences.

The Court of Appeal upheld the trial judge's interpretation that section 83.2 does not apply to a lone wolf terrorist acting as the sole member of a terrorist group, as the provision contemplates a bilateral relationship between the principal committing the offence and a separate terrorist group.

The court dismissed the appeal.

Following the dismissal of an oppression remedy application, the respondents sought substantial indemnity costs.

They argued that the application was the applicant's second unwarranted one on similar facts and that a comprehensive settlement offer, made after judicial mediation, was rejected.

The court declined to award substantial indemnity costs for the entire proceeding but found it fair and reasonable to award substantial indemnity costs from April 25, 2019, the date of the settlement offer.

The offer was deemed more favourable to the applicant than the outcome of the contested application, and no formal counter-offer was made.

The respondents were awarded fixed costs of $66,148.84 inclusive.

The applicant, a one-third shareholder, sought an oppression remedy under the OBCA to compel the sale of the corporation's sole asset (a property) or the purchase of his shares, due to a disagreement with the majority shareholders (the respondents) who also owned the tenant restaurant.

The court dismissed the application, finding no oppressive or unfair conduct, and that the respondents' business judgment was within a reasonable range.

The court emphasized the absence of a unanimous shareholder agreement and that mere disagreement does not amount to oppression or warrant winding up.