Evan L. Tingley

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.

The plaintiffs brought a motion for leave to issue a certificate of pending litigation (CPL) against a property registered to one of the defendants, claiming the property was beneficially owned by another defendant who owed them money.

The plaintiffs also sought to amend their statement of claim and file supplementary affidavit evidence.

The court allowed the late affidavit and the amendment to the statement of claim.

However, the court dismissed the motion for a CPL, finding the plaintiffs failed to establish a triable issue regarding an interest in the land, as the funds advanced were merely an unsecured loan used to pay property expenses.

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 applicant and respondent owned adjoining properties with a shared laneway.

The respondent, developing a condominium, entered into an agreement to pay the applicant for encroaching on the laneway.

After the agreement's initial term expired, the respondent stopped paying but continued to obstruct the laneway.

The applicant sought $75,000 for 10 months of continued obstruction.

The court admitted a late affidavit from the applicant, found that the agreement had been implicitly extended, and alternatively found that the respondent substantially interfered with the applicant's right of way.

The court awarded the applicant $67,500 for nine months of obstruction, plus costs.

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.

This motion sought an order for security for costs against the plaintiff, an Ontario corporation, in a $20 million lawyer's negligence claim.

The defendants argued that the plaintiff had insufficient assets in Ontario to pay costs, citing a previous decision where the same plaintiff was ordered to post security and its sole shareholder failed to establish impecuniosity.

The court applied the two-step inquiry under Rule 56.01, finding that the defendants had good reason to believe the plaintiff lacked sufficient assets.

The plaintiff failed to demonstrate ample assets or impecuniosity, and its claim was not found to have a "good chance of success." The motion was granted, ordering the plaintiff to post security for costs totaling $149,000 in three installments, and staying the proceeding until the first installment was posted.

The defendant landlord brought a motion for summary judgment to dismiss the plaintiffs' action for wrongful termination of a commercial lease.

The defendant argued that the corporate plaintiff was not a party to the lease and the personal plaintiff could not claim damages suffered by the corporation under the rule in Foss v. Harbottle.

The court found that while the current pleadings did not support an independent claim for the personal plaintiff, dismissing the action would allow the defendant to escape liability for an alleged breach.

The court adjourned the motion for two months to allow the plaintiffs to amend their statement of claim.

The appellant appealed a motion judge's order staying its action for wrongful termination and tortious misconduct based on a forum selection clause in an Exclusive Sales Agreement.

The clause required disputes to be settled by binding arbitration in Germany.

The Court of Appeal dismissed the appeal, holding that the broad language of the clause captured both the contract and tort claims against the contracting party.

The majority also upheld the stay against the non-contracting respondents, finding their claims were factually intertwined with those against the contracting party.

A dissenting judge would have allowed the appeal in part, finding no jurisdiction to force arbitration on non-parties.

This decision addresses costs following an application for partition and sale of a jointly owned property and a subsequent accounting reference.

The applicant sought partial indemnity costs for both the application and the reference.

The respondent sought substantial indemnity costs for a portion of the reference, citing an offer to settle.

The court found the applicant successful on the initial application and the respondent successful on the reference hearing.

Applying principles from the Courts of Justice Act and Rules of Civil Procedure, and considering the mixed success and similar overall partial indemnity fees, the court ordered each party to bear their own costs.

This endorsement addresses costs following the dismissal of the plaintiffs' claim.

The court considered whether the successful defendants, Sparkasse Siegen and Thomas Magnete GmbH, should receive costs on a higher scale due to settlement offers, and whether costs should be awarded against a non-party, Mr. Mellema.

The court declined to award higher scale costs, finding the plaintiffs' claim was not frivolous and their refusal to accept settlement offers was not unreasonable.

It also declined to award costs against Mr. Mellema personally, noting the defendants' awareness of his involvement and their prior opportunities to seek increased security for costs or provide notice.

The plaintiffs were ordered to pay partial indemnity costs to both defendants.

The applicant and respondent, mother and son, disputed the accounting of net proceeds from the sale of a jointly owned condominium.

The respondent had lived in the property rent-free for 20 years and claimed sole beneficial ownership, as well as credits for sweat equity and management fees.

The court found the property was owned 50/50 and denied the respondent's claims for sweat equity and management fees.

The court also denied the applicant's claim for occupation rent, finding the presumption was rebutted by the family's intention for the respondent to live rent-free and the lack of prior notice for the claim.

The plaintiffs moved for summary judgment against the defendants for breach of an Agreement of Purchase and Sale.

The defendants raised five defenses.

The court granted summary judgment on four defenses (unenforceability due to waiver, bad faith, mitigation, and insufficient funds to close a secondary property purchase), finding no genuine issue for trial on these points.

However, a trial of an issue was ordered to determine the foreseeability of the quantum of forfeited deposits related to the secondary property purchase, as there was conflicting evidence regarding the defendants' knowledge of the deposit amounts at the time of contract.

The plaintiffs, suppliers of automated assembly lines, sued the defendants for negligent misrepresentation and breach of contract following the cancellation of a major auto sector project.

The plaintiffs alleged they relied on a comfort letter from the defendants regarding project financing and that a subsequent oral agreement was made for the defendants to assume the debt.

The court dismissed the claims, finding the comfort letter was not misleading and reliance on it was unreasonable given the plaintiffs' own deceptive request.

The court also found no evidence of the alleged oral agreement and held that any such claim would be barred by the Limitations Act and the Statute of Frauds.

The plaintiff sought summary judgment for a debt of approximately €511,000, claiming it was assigned to him by a German bank.

The defendants admitted the debt but disputed the validity of the assignment under German law.

The court, relying on uncontradicted expert evidence regarding German law, found that the plaintiff failed to provide sufficient evidence to prove a valid assignment, including bilateral execution, clear identification of the assigned claim, proof of signatory authority, and proper notice to the debtors.

The court determined there was a genuine issue requiring a trial and dismissed the motion for summary judgment, ordering the plaintiff to pay the defendants' costs.

The plaintiff brought a motion for summary judgment to discharge a mortgage registered against his property, alleging that the defendant mortgagee never advanced the funds.

The plaintiff also claimed against the lawyer who provided him with independent legal advice, alleging negligence.

The court dismissed the plaintiff's motion for summary judgment regarding the mortgage discharge, finding that the conflicting evidence regarding the advance of funds required a trial.

The court granted the lawyer's motion for summary judgment, dismissing the claim against him on the basis that it was statute-barred under the Limitations Act, 2002, and alternatively, that the lawyer did not breach his duty of care.