G. Tighe

The plaintiff corporation brought a motion for leave to register a certificate of pending litigation on an adjacent commercial property.

The plaintiff alleged it had a binding agreement of purchase and sale with the defendant owner, which the defendant repudiated after the tenant purportedly exercised a right of first refusal.

The court found the plaintiff raised a triable issue regarding its interest in the unique adjacent land and granted the motion, ordering the plaintiff to pay its promised deposit into court.

The plaintiffs moved under Rule 48.11 of the Rules of Civil Procedure to restore an action to the trial list after it had been struck from the list for several years, while the defendants brought a cross‑motion to dismiss the action for delay.

Applying the conjunctive test articulated by the Court of Appeal in Nissar v. Toronto Transit Commission, the court held that the plaintiffs bore the burden of providing an acceptable explanation for the litigation delay and demonstrating that the defendants would suffer no non‑compensable prejudice if the action proceeded.

The plaintiffs argued that related litigation justified holding the matter in abeyance, but the court found no evidence that opposing counsel had been informed of such an intention and concluded the action had effectively been neglected for nearly four years.

Although the court found that the defendants had not established actual prejudice, the plaintiffs failed to satisfy the first branch of the Nissar test.

The motion to restore the action to the trial list was therefore dismissed.

The plaintiffs and a co-defendant brought a motion for partial summary judgment seeking a declaration that losses arising from the collapse of a basement wall were covered under a title insurance policy.

The insurer argued the policy was void due to a material misrepresentation in the insurance application concerning the nature of the dwelling, which was described as a single-family residence despite being used as a multi-unit property.

The court held that there were genuine issues requiring a trial, including whether the misrepresentation was material to the risk and whether the insurer would have issued the same policy had it known the true facts.

The applicants also argued that the insurer had effectively accepted coverage through prior correspondence, but the court found that the evidence surrounding the letter raised factual issues unsuitable for summary judgment.

The motion for partial summary judgment was dismissed.