Fernando Souza

The appellant tenant commenced an action for a declaration that its commercial lease was binding against the owners of the building.

The building was subsequently sold to the respondent, who was added as a defendant, and then sold again to a new owner.

The appellant negotiated a new lease with the new owner and brought a motion to dismiss the action with costs.

The respondent cross-moved to compel the appellant to discontinue the action and pay costs.

The Master granted the cross-motion.

On appeal, the Divisional Court held that Rule 23.01 does not permit a court to compel a plaintiff to discontinue an action.

The court further held that the action became moot because the respondent sold the property, not because the appellant negotiated a new lease, and therefore each party should bear its own costs.

The appeal was allowed and the action dismissed without costs.

Following a successful appeal granting summary judgment on liability and directing an assessment of damages, the appellant sought costs on a full indemnity basis pursuant to a lease provision.

The respondents argued that costs should be reserved to the assessment judge, as the true magnitude of the appellant's victory would only be known once damages were assessed.

The Divisional Court agreed with the respondents and ordered that the costs of the appeal and the motion for leave be in the discretion of the judge hearing the assessment of damages.

The appellant landlord appealed a decision declining to grant summary judgment against the respondent tenants for breach of a commercial lease.

The tenants had raised defences based on alleged prior representations and a non-competition clause.

The Divisional Court allowed the appeal, finding that an 'entire agreement' clause precluded reliance on prior representations, and that the non-competition clause only applied if the tenant was not in default.

As the tenants were in arrears before the competing lease was signed, the defences and counterclaim failed.

Summary judgment was granted on liability, with damages to be assessed.

The appellant appealed a judgment regarding the prepayment of a mortgage.

The Court of Appeal found that the respondent was entitled to prepay the mortgage without notice or bonus as it was not in default.

However, the respondent was not relieved of the obligation to make proper tender of the principal and interest.

The appeal was allowed in part to award the appellant additional interest from the date of attempted prepayment to the date of proper tender.