Eric Mathieu Joseph Brousseau

This appeal concerned the appropriate measure of damages for a vendor's breach of an agreement of purchase and sale for real property.

The appellant purchaser sought to recover the significant capital appreciation realized by the breaching vendor two and a half years after the breach, when the vendor resold the properties for $56 million more than the original contract price.

The Court of Appeal upheld the motion judge's decision, affirming the general principle that damages for breach of a real estate contract are assessed at the date of breach, unless the innocent party can demonstrate a later date is fair due to an inability to re-enter the market and mitigate.

The court found the appellant, a long-term investor, was not a speculator and failed to prove its loss or justify a departure from the date of breach.

The appeal on damages and costs was dismissed, as was the cross-appeal on costs thrown away.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action.

The plaintiff claimed a 50% equitable interest in a real estate property based on an oral joint venture agreement, while the defendants argued the relationship was strictly that of borrower and lender secured by promissory notes and a mortgage.

The court dismissed the motion, finding that the conflicting evidence regarding the nature of the parties' relationship raised significant credibility issues that constituted a genuine issue requiring a full trial.

The plaintiff sought costs after successfully resisting the defendants' motions to strike and for summary judgment.

The court awarded the plaintiff $7,500 in costs for the motion to strike.

However, the court denied the plaintiff costs for the summary judgment motion because the plaintiff's principal sent an improper email threatening the defendants with criminal charges to extort a settlement.

The applicants sought to enforce two letters rogatory issued by the U.S. District Court for the District of Columbia to compel documentary and oral evidence from the respondent, a non-party in the underlying U.S. patent infringement litigation.

The respondent opposed, arguing the requests were overly broad, moot due to discovery deadlines, and contrary to public policy as they sought proprietary source codes.

The court granted the applications, enforcing the letters rogatory but narrowing their scope and imposing protective conditions, including compliance with a supplemental protective order and the deemed undertaking rule.

The applicant tenant brought an application for the return of moneys held by the respondent landlord following the end of a commercial lease.

The landlord claimed the tenant owed occupancy costs, utilities, and damages for move-out deficiencies.

The court found the landlord's accounting unreliable, as it was uncertified, inconsistent, and relied on hearsay evidence.

The court ordered the landlord to return $49,906.00 to the tenant, representing the funds held less conceded unpaid rent.

Claims by both parties for additional damages were dismissed due to insufficient evidence and the lack of a cross-application by the landlord.

The plaintiff purchased a commercial property from the defendants.

After closing, the plaintiff discovered that the version of a commercial lease provided by the defendants prior to closing was allegedly incorrect, and that the true lease obligated the landlord, rather than the tenant, to repair the roof.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claims for misrepresentation and breach of contract, arguing the plaintiff had already negotiated a price abatement for the roof and did not rely on the lease.

The court dismissed the motion, finding a genuine issue requiring a trial regarding whether the plaintiff lost the opportunity to seek contribution from the tenant based on the incorrect lease provided.

The moving party brought a motion for leave to appeal the order of Kimmel J. dated March 20, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the fixed amount of $4,891.66.

The individual defendants brought a Rule 21 motion to strike the plaintiff's claim against them for fraudulent misrepresentation.

The plaintiff alleged that the defendants, as officers/directors of the vendor corporation, knowingly provided a false lease and statutory declarations regarding the property's condition and tenant obligations during a property sale.

The defendants argued the claim was an attempt to convert a breach of contract into a personal tort.

The court dismissed the motion, finding the claim for fraudulent misrepresentation was sufficiently pleaded, as allegations of fraud, deceit, and dishonesty against corporate officers/directors can proceed, taking their actions outside their corporate role.

The plaintiff purchaser brought a motion for judgment against the defendant vendors for breach of an agreement of purchase and sale for seven apartment buildings.

The defendants failed to discharge mortgages on title prior to closing, breaching the agreement.

The plaintiff sought damages for sunk costs and over $56 million for lost capital appreciation, based on the defendants' subsequent sale of the properties 2.5 years later.

The court awarded the sunk costs but dismissed the claim for lost profits, holding that damages must be assessed at the closing date and that the plaintiff, an international real estate investor, had mitigated its losses by deploying its funds elsewhere.

The moving party brought a motion to extend the time to appeal a garnishment order issued over two years prior.

The moving party argued that its delay was due to its sole shareholder's ignorance of the law and the belief that the company was judgment proof.

The Court of Appeal dismissed the motion, finding that the moving party made a tactical decision not to appeal and that the delay caused prejudice to the victims of the underlying fraud.

The court also noted that the proposed appeal was not obviously meritorious.

Following the dismissal of the appeal, the court received written submissions on costs.

The court awarded costs of the appeal to the respondent in the amount of $17,500, inclusive of disbursements and taxes.

The appellant landlord wrongfully terminated a commercial lease held by the respondent, who was the sole shareholder of a corporation operating a restaurant on the premises.

The termination caused the restaurant to close and the respondent's shares to become worthless.

The landlord appealed the summary judgment awarding the respondent damages for the diminution in share value, arguing the claim was barred by the rule in Foss v. Harbottle.

The Court of Appeal dismissed the appeal, holding that the rule does not apply where the wrong was committed against the shareholder personally and the corporation has no cause of action.

This endorsement addresses the costs of an appeal where the defendant's appeal from a master's decision, granting the plaintiffs leave to amend their statement of claim, was dismissed.

The plaintiffs, as successful parties on appeal, sought partial indemnity costs.

The court awarded the plaintiffs partial indemnity costs of $8,975.75, payable within 30 days, finding that the defendant's re-litigation of issues on appeal justified the award, despite the underlying motion being for an amendment.

The defendant appealed a master's order granting the plaintiffs leave to amend their statement of claim to include a breach of an earlier manufacturing agreement, after the expiry of the limitation period.

The central issue was whether the proposed amendment constituted a new cause of action.

The court dismissed the appeal, finding no error in the master's decision that the amendment did not introduce a new cause of action, as it arose from the same factual matrix and alleged breaches, and the defendant had notice of the underlying facts.

The court affirmed that the "clean hands" doctrine is not applicable to limitation period analyses and that the tenability of amendments is assessed by assuming pleaded facts are true, deferring substantive merits to trial or summary judgment.

Following a successful summary judgment motion dismissing the plaintiffs' action, the successful defendant sought costs of $25,000 to $30,000 on a substantial indemnity basis, relying on an expired offer to settle.

The plaintiffs argued for costs in the range of $10,000 to $15,000.

The court found that substantial indemnity costs were not justified as the offer to settle had expired long before the motion and the case raised important issues for the plaintiffs.

The court awarded the defendant costs on a partial indemnity scale in the amount of $23,376.43.

The defendant, a second mortgagee, brought a motion for summary judgment to dismiss the plaintiffs' action alleging an improvident sale of a property under a power of sale.

The plaintiffs, who held a third mortgage, received nothing from the sale and claimed the defendant failed to obtain fair market value and inflated costs.

The court found that the sale was not improvident, noting the property had been recently exposed to the market, the sale price was supported by appraisals, and the purchaser was ready and willing to close.

The court also held that the plaintiffs had already received an accounting and any further dispute regarding costs should be pursued through the assessment process under the Mortgages Act.

The motion for summary judgment was granted and the action dismissed.

The defendants brought a motion for security for costs against the plaintiffs, seeking additional security for the discovery stage and for the period from discoveries to trial.

Previously, $45,000 in security had been ordered, with the court finding that 1636833 Ontario Inc. (833) had insufficient assets.

On this motion, the plaintiffs provided new, more comprehensive evidence of 833's financial condition, including significant bank balances, investment accounts, and revenue from an active business relationship.

The court found that 833 now demonstrated sufficient liquid and unencumbered assets in Ontario to satisfy a potential costs award, dismissing the defendants' motions for further security for costs.

The decision reiterated the limits of speculative inquiries into a company's future financial prospects on such motions.

The plaintiffs brought an action in defamation against the defendant, a former union member, for publishing numerous derogatory posts and videos online.

The plaintiffs moved for summary judgment, and the defendant brought a cross-motion to dismiss the action under the anti-SLAPP provisions of the Courts of Justice Act.

The court held that an anti-SLAPP motion can be heard concurrently with a summary judgment motion.

The court dismissed the anti-SLAPP motion, finding that while the expression related to a matter of public interest, the harm suffered by the plaintiffs outweighed the public interest in protecting the expression.

The court granted the plaintiffs' motion for summary judgment, finding the posts defamatory and malicious, and awarded a permanent injunction and costs.

The defendants brought a motion seeking to strike the plaintiff's claim against an individual defendant (Sam Mizrahi) for breach of contract and unjust enrichment, an order requiring the plaintiff and its employee to undertake not to interfere with the defendants' economic relations, and security for costs.

The court granted the motion to strike the claim against the individual defendant without leave to amend, finding no reasonable cause of action and that it was frivolous/vexatious.

The motion for injunctive relief was dismissed as there was no underlying cause of action.

Security for costs was granted in the amount of $200,000, payable in installments.

The appellants sought to add three health care providers as defendants to a medical malpractice action more than two years after the original injury.

The motion judge dismissed the motion on the basis that the limitation period had expired.

The Court of Appeal allowed the appeal, finding that the motion judge applied the wrong test under the Limitations Act, 2002.

The court held that the motion judge failed to make proper findings of fact regarding when the appellants knew or ought reasonably to have known of their claims against the proposed defendants.

The court also found that the motion judge erred in treating lack of due diligence as a standalone ground for finding claims statute-barred.

The key distinction was that the claims against the proposed defendants differed from the claim against the original defendant, as they involved allegations that the health care providers failed to take immediate action once cauda equina syndrome was suspected, information that was only revealed during examinations for discovery in 2015.