Evan L. Tingley

This is an appeal from a summary judgment ordering payment on a promissory note.

The appellant had defaulted on the loan and filed no evidence on the motion for summary judgment.

The motion judge granted summary judgment and refused to stay execution pending a third-party claim.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision, as the respondent's evidence supported an independent contract and the appellant failed to provide contradictory evidence.

The court heard two applications concerning the interpretation of an Asset Purchase Agreement.

The vendor (1000197094 ONTARIO INC.) sought a declaration that Section 3.04 of the agreement constituted an arbitration agreement.

The purchaser (1872488 ONTARIO INC.) argued against this and brought a cross-application seeking disclosure of information related to Work in Progress and Net Earned Revenue valuations, and a determination that the valuation process was not arbitration.

The court found that Section 3.04 was indeed an arbitration agreement, requiring a final and binding determination by an independent accounting firm.

The court also ordered ongoing disclosure of relevant information by both parties regarding Work in Progress and Net Earned Revenue, clarifying that these two items were the subject of the dispute.

The applicant sought a declaration regarding ownership of chattels left on a property sold to one respondent, and damages for lost chattels.

The court found an agreement for storage constituted a gratuitous bailment, not a license, and that the chattels were not abandoned.

The respondent bailee improperly transferred possession of the chattels to a subsequent purchaser.

The court declared the applicant's ownership of the remaining chattels and ordered damages for the lost ones.

The applicant tenant sought a declaration that it had validly renewed its commercial lease and other relief.

The respondent landlord argued the tenant was in default.

The court applied the principle of estoppel by convention, finding a shared mistaken assumption regarding rent payments during the COVID-19 CECRA program, which prevented the landlord from relying on an alleged rent shortfall.

The court also granted relief from forfeiture for minor outstanding bank fees, noting the landlord's delayed demand for these fees.

The lease was declared validly renewed, and the landlord was ordered to pay the tenant's costs.

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 is an appeal from a trial judge's decision to discharge a mortgage.

The appellant claimed a loan was secured by a mortgage on the respondent's home, which was later re-loaned but remained secured.

The trial judge, unable to determine witness credibility, relied on documentary evidence to find the mortgage had been repaid and effectively redeemed.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the issue of redemption was properly before the court via counterclaim, that the appellant waived technical compliance by admitting repayment, and that the trial judge was entitled to rely on documentary evidence given credibility issues.

The plaintiff, a mechanical systems contractor, sought summary judgment for an unpaid balance of $103,047.48 plus interest against the corporate defendants and their directors for breach of trust under the Construction Lien Act.

The defendants admitted the debt and the existence of statutory trusts but argued the action was time-barred.

The court found that written acknowledgments and promises to pay by the directors, including digital signatures on emails, restarted the limitation period.

The court also found that the directors were personally liable for knowingly engaging in breaches of trust by misusing trust funds for overhead and management fees.

Summary judgment was granted to the plaintiff, including substantial indemnity costs and declarations of breach of trust surviving bankruptcy.

The appellants appealed a motion judge's decision that the respondent Pezzack Financial Services Inc. was entitled to proceeds of a mortgage action settlement held in escrow pursuant to a Notice of Garnishment.

The appellants claimed that the garnishee held the mortgage in trust for them, either as an express trust or a resulting trust.

The Court of Appeal upheld the motion judge's findings that the claimed express trust was a sham and that the circumstances did not support a resulting trust.

The appeal was dismissed with costs fixed at $10,000.00 all-inclusive.

The plaintiff, Homestead House Paint Co. Inc., brought a motion for an interlocutory injunction to prevent the defendant, Wendy Jamieson, from disclosing confidential information in alleged breach of a non-disclosure agreement (NDA).

The plaintiff also sought an order sealing the court file and holding hearings in camera.

The court found a serious question to be tried regarding the NDA's breach concerning the supplier's identity, but dismissed the injunction motion due to the plaintiff's failure to demonstrate irreparable harm.

The court rejected the contractual clause deeming irreparable harm and found the alleged harm to be speculative.

A limited confidentiality order was granted, requiring the redaction of the supplier's name from court materials, consistent with the open court principle.

The plaintiff, a mechanical systems contractor, sought summary judgment for an unpaid balance and interest on a condominium construction project.

The defendants, including the owner corporation and its directors/officers, admitted the debt and the existence of statutory trusts under the Construction Lien Act.

The court found that the defendants breached these trusts by using funds for unauthorized purposes, including general overhead and management fees to the individual defendants.

The defendants' primary defense of a lapsed limitation period was rejected due to written acknowledgments of debt and an agreement that induced the plaintiff to forbear from litigation.

The court granted summary judgment for the plaintiff, including the principal debt, interest, declarations of breach of trust and personal liability for the directors, and substantial indemnity costs.

The plaintiff sought to discharge a $220,000 mortgage registered against his property, claiming the funds were never advanced by the defendant.

The defendant counterclaimed for possession, alleging the funds were advanced in cash to the plaintiff's relative in Iran and by paying off credit card debt.

The court found significant credibility issues with all witnesses but relied on documentary evidence showing the defendant received over $220,000 in transfers from Iran, which he acknowledged was sufficient to discharge the mortgage.

The court ordered the mortgage discharged, finding it was effectively redeemed when the defendant received those funds.

Raymond James Ltd. (RJL) successfully obtained summary judgment against Jayanth Noronha for a forgivable loan and dismissal of his $2.0 million counterclaim.

RJL sought costs on a full indemnity basis, relying on an indemnification clause in the Agency Agreement and Noronha's unsubstantiated allegations of bad faith.

The court awarded RJL full indemnity costs of $93,403.10, finding the indemnification clause valid and Noronha's conduct prolonged the litigation, making the requested costs reasonable and fair.

The plaintiff investment dealer, Raymond James Ltd. (RJL), terminated its agency agreement with the defendant investment advisor, Jayanth Noronha, after discovering he was involved in off-book investments and using personal email for business, contravening RJL's compliance manual and IIROC rules.

Upon termination, the outstanding balance of a forgivable loan to Noronha became immediately due.

RJL sued for this balance, while Noronha counterclaimed for wrongful termination and breach of good faith, alleging RJL sought to misappropriate his book of business.

The Investment Industry Regulatory Organization of Canada (IIROC) subsequently found Noronha guilty of multiple rule violations, including off-book trading, undisclosed remuneration, conflict of interest, and deleting email records, leading to a lifetime ban.

RJL moved for summary judgment.

The court found no genuine issue for trial, holding that the loan was contractually due upon termination, and Noronha's termination was justified by his regulatory breaches, not a pretext to seize his client base.

The IIROC findings further confirmed the validity of RJL's actions.

The motion for summary judgment was granted, allowing RJL's claim and dismissing Noronha's counterclaim.

The applicant, a commercial tenant, sought relief from forfeiture after the mortgagee, Home Trust, sought to terminate its tenancy following the owner's mortgage default.

The court determined that the original lease was not binding on the mortgagee.

It found that a year-to-year tenancy existed between the parties, not a month-to-month tenancy as argued by the mortgagee, and that the termination notice based on unsafe conditions was not immediately effective.

Relief from forfeiture was denied as the termination right stemmed from the nature of the year-to-year tenancy, not a breach by the tenant.

The court ruled that the tenancy could be terminated on October 31, 2018, based on the six-month notice given.

A retired partner sought recovery of his equity and share of profits from a construction partnership pursuant to a June 2005 retirement agreement.

The agreement provided for payment between June 2005 and June 2008 according to a specified schedule.

The payments were not made as scheduled due to insufficient funds.

The partner commenced litigation in September 2012, over four years after the payment deadline.

The trial judge found the action time-barred under the Limitations Act, 2002, determining that the claim was discovered when payments were not received by June 2008.

The Court of Appeal upheld this decision, rejecting arguments that the limitation period had not commenced because the amount was disputed, profits could not be ascertained, or there had been forbearance or novation.

Appeal from a trial judgment dismissing a negligent misrepresentation claim.

The appellants, a manufacturer of assembly lines, contracted to supply equipment to a German company.

When the purchaser transferred the contract to its Canadian subsidiary, the appellants requested assurances from the parent company.

The respondents provided a letter from their bank confirming project financing and the parent company's guarantee.

When the project failed due to industry collapse, the appellants sued for negligent misrepresentation, claiming the letter was misleading because it failed to disclose that the bank's financing was conditional.

The trial judge dismissed the claim, finding the representation was true and not misleading, and that the appellants had not reasonably relied on it.

The Court of Appeal upheld the dismissal, finding no palpable and overriding error and no denial of procedural fairness.

The appellant, Solstice Two Limited, appealed a decision granting relief from forfeiture to the respondent, Valeria Scicluna, who had advanced $293,685 toward the purchase of a condominium but failed to close due to job loss.

The application judge awarded the recovered funds to the bankruptcy trustee rather than to Scicluna.

The Court of Appeal dismissed both the appeal and cross-appeal, upholding the relief from forfeiture as appropriate given the grossly disproportionate nature of the forfeiture and confirming that the funds properly vest in the bankruptcy trustee under the Bankruptcy and Insolvency Act.

The applicant sought equitable relief from forfeiture after being locked out of commercial leased premises due to multiple breaches of the lease, including non-payment of basic rent, unauthorized subletting, and failure to open the specified restaurant business for nearly three years.

The court, applying the principles of relief from forfeiture, found that while the applicant had cured rent arrears, the prolonged failure to open the restaurant and lack of sufficient evidence for delays were significant.

The court granted relief from forfeiture but imposed stringent conditions on the applicant, requiring timely rent payments, provision of post-dated cheques, and payment of a substantial sum for outstanding reality taxes, with a clear stipulation that non-compliance would allow the respondents to terminate the lease.

The plaintiffs, Walter Davies and CityGate (WD) Management Corp., brought an action against Davies Smith Developments Partnership for damages arising from an alleged breach of an agreement concerning equity payout and profit sharing.

The defendant argued the claim was statute-barred under the Limitations Act, 2002.

The court found that the plaintiffs had discovered their claim by July 2008, at the latest by September 2, 2010, and therefore, the action commenced on September 6, 2012, was beyond the two-year limitation period.

Consequently, the plaintiffs' claim was dismissed.

The defendant's counterclaim was also dismissed as no overpayment was proven.