Fred E. Seller

The court considered an application by Place Laurier Limited for leave to appeal an arbitration award regarding the fair market value of land subject to a ground lease.

The applicant argued the arbitrator failed to apply the correct legal test for determining the highest and best use of the land and did not provide sufficient reasons for the valuation.

The court found that while some issues raised extricable questions of law, the arbitrator had not erred in law and provided sufficient reasons.

The appeal was dismissed.

The moving parties brought a motion for leave to appeal a costs order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $4,500 to the responding party.

The plaintiff franchisor sought an interlocutory injunction to enforce restrictive covenants against the defendant franchisee, who had purported to terminate the franchise agreement and opened a competing fitness studio.

The dispute arose after the franchisor implemented a direct-to-consumer online fitness program during the COVID-19 pandemic, which the franchisee alleged constituted a fundamental breach.

The court dismissed the motion, finding that while there was a serious issue to be tried regarding fundamental breach, the franchisor failed to establish a strong prima facie case, and the balance of convenience did not favour granting the injunction given the imminent expiration of the agreement and the potential loss of livelihood for the franchisee's employees.

The plaintiff, Ocean Dredging DM Inc., brought a motion for an interlocutory injunction to prevent the defendant, Kehoe Marine Construction Ltd., from breaching a Memorandum of Understanding (MOU) and to compel the defendant to negotiate subcontracts for a marine dredging project.

The court found that the relief sought was mandatory in nature, requiring a strong prima facie case.

The court dismissed the motion, concluding that the MOU was an agreement to negotiate with many outstanding terms, the plaintiff failed to demonstrate irreparable harm, and the balance of convenience favoured the defendant.

The plaintiff obtained a certificate of pending litigation (CPL) on a motion without notice against properties owned by corporations controlled by his son, alleging the son misappropriated funds while acting as his attorney for property.

The defendants moved to set aside the CPL for failure to make full and fair disclosure, or alternatively to discharge it under the Courts of Justice Act.

The court found that while the plaintiff failed to disclose material facts regarding the son's legal representation, the CPL would have been granted regardless.

The court also declined to discharge the CPL, finding a triable issue regarding the plaintiff's interest in the properties and that the balance of equities favoured maintaining the CPL.

The applicant, a commercial tenant, sought relief from forfeiture, an order compelling arbitration, and rent abatement after the respondent landlord issued a notice to quit upon the expiration of their lease.

The court found that relief from forfeiture was unavailable because the lease had expired by its terms, not due to a breach or default by the tenant.

The court also determined that the parties had abandoned their agreement to arbitrate by failing to appoint an arbitrator within the stipulated timeframe.

Consequently, the claims for arbitration and rent abatement, which was an issue for arbitration, were dismissed.

The appellant, a secured creditor, appealed an order approving a receiver's proposed purchase agreement and technology license agreement for the assets of the respondent companies.

The appellant argued that the proposal was identical to one previously rejected by another judge.

The Court of Appeal dismissed the appeal, finding that the new proposal differed significantly and that the motion judge appropriately applied the Soundair principles in approving the transaction, given the changed circumstances and the need to sell the subsidiary as a going concern.

The appellant appealed a judgment granting the respondent a discharge of a charge upon payment of $25,000 plus interest.

The Court of Appeal dismissed the appeal, finding that the motion judge did not err.

The Court held that the mandatory language of section 93(2) of the Land Titles Act, which requires a charge securing the payment of money to state the principal sum it secures, dictated the result.