Harvin D. Pitch

The appellants appealed a judgment awarding them financial compensation rather than a 45 percent ownership interest in the respondent corporation under the oppression remedy provisions of the Business Corporations Act.

The appellants argued the application judge failed to give effect to their reasonable expectation that shares would be issued pursuant to a non-binding term sheet.

The Divisional Court dismissed the appeal, finding the application judge properly considered the appellants' reasonable expectations, correctly concluded the term sheet was not a binding agreement to issue shares, and appropriately exercised his broad remedial discretion in awarding financial compensation instead of shares.

The court considered costs following a mixed-success application under the Ontario Business Corporations Act.

Although the applicants were awarded monetary relief, they failed on significant claims, including a request for 45% ownership and profits of the respondent corporation.

The court found success was divided and ordered each party to bear their own costs, referencing relevant offers to settle and prior case law on divided success.

The applicants sought relief under the Ontario Business Corporations Act for payment of 45 percent of the value of PowerNorth Utility Contractors Inc., arising from previous business dealings.

The court found that the applicants were proper complainants under the Act and entitled to remedies, including repayment of investments and services provided.

The court calculated the amounts owed for cash investment, use of premises, equipment, and services, and awarded interest.

The total award was $399,441.90.

The court declined to order a share of profits and urged the parties to agree on costs, noting divided success.

This decision addresses two motions: a Mareva injunction sought by CIM Mackenzie Creek Limited Partnership and Jiubin Feng against NSR Toronto Holdings Ltd., and a cross-motion by NSR Toronto Holdings Ltd. to stay CIM's counterclaim as an abuse of process.

CIM's Mareva injunction, based on alleged fraud by NSR in the sale of the Mackenzie Creek Project to Sunny Co., was dismissed due to lack of proof of fraud and no risk of asset dissipation.

NSR's cross-motion to stay CIM's counterclaim was granted because CIM failed to promptly disclose a settlement agreement with Sunny Co., which materially altered the litigation's adversarial landscape, constituting an abuse of process.

The court emphasized the strict disclosure requirements for such agreements.

This costs endorsement follows a prior decision where the Court of Appeal allowed the tenant's appeal in part, extending the lease due to government-mandated COVID closures without rent during the extension, but reaffirming the tenant's obligation to pay rent during the closure periods.

The court ordered the tenant (appellant) to pay $20,000 in all-inclusive costs for the appeal, reflecting the divided success.

No costs were awarded for the motions, action, and counterclaim, as both the landlord and tenant experienced mixed success in those matters, and each party was ordered to bear their own costs.

The tenant appealed a summary judgment that required it to pay rent during government-mandated COVID-19 closures and denied an extension of the lease term.

The Court of Appeal held that the force majeure clause did not excuse the tenant from paying rent during the closures because the clause expressly excluded financial inability.

However, the Court found the motion judge erred in interpreting the excusing provision of the force majeure clause.

The Court held that the landlord's obligation to provide the premises was excused during the closures, but the lease term must be extended for an equivalent period, during which the tenant is not required to pay rent.

The plaintiffs requested a case conference to fix a trial date despite failing to complete a mandatory mediation by the court-ordered deadline.

One of the plaintiffs booked a vacation that conflicted with the scheduled mediation date, showing disregard for the court's prior order.

The court refused to dispense with the mediation requirement or hold a trial date as a placeholder, and consequently struck the action from the trial list until mediation is completed and the matter is truly ready for trial.

The Landlord, Niagara Falls Shopping Centre Inc., brought a motion for summary judgment against its tenant, LAF Canada Company, for unpaid rent during government-mandated COVID-19 closures.

LAF counterclaimed, seeking rent abatement based on force majeure, frustration of contract"damage or destruction" under the lease, and unjust enrichment.

The court granted the Landlord's motion, finding that the force majeure clause did not excuse rent payment as financial inability was explicitly excepted and payment could cure the failure to perform.

The frustration defense was rejected because the event was contemplated by the force majeure clause.

The "damage or destruction" claim was dismissed as it required physical alteration to the property, not merely inability to use due to the virus.

The unjust enrichment claim failed as the lease provided a juristic reason for the enrichment.

The plaintiffs requested an urgent case conference to schedule a mediation and fix a trial date before the action was administratively dismissed.

One of the plaintiffs objected, citing an upcoming motion regarding the removal of his counsel in a separate action.

The court found it unfair to delay the other plaintiffs and ordered that mediation be held by June 30, 2022, and that the action appear on the trial scheduling court list on April 11, 2022.

The wife was largely successful on a motion for interim disbursements under the OBCA, temporary spousal support, and further financial disclosure.

Both parties sought costs of the motion.

The court found the wife was the successful party and that the husband's behavior regarding disclosure was unreasonable.

After considering the parties' offers to settle and the proportionality of the fees, the court awarded the wife costs of $97,523.88, representing 65% of her actual costs.

The costs were ordered to be paid equally by the husband personally and the corporations he controls.

The moving party wife sought interim costs and disbursements of $500,000 to fund her family law and oppression remedy claims against the responding party husband, who controlled the family's closely-held corporations.

She also sought temporary spousal support and an order compelling the husband to answer undertakings and refusals from his questioning.

The court awarded $250,000 in interim costs under the OBCA as an advance against her shareholdings, finding her oppression claim had sufficient merit and she lacked liquid resources.

The court also ordered the husband to pay $3,000 per month in temporary spousal support to equalize the parties' net disposable incomes, and compelled him to answer the majority of the outstanding undertakings and refusals.

The parties made written submissions regarding the form of the Order following a judgment on an appeal and a costs endorsement.

The self-represented respondents approved the form of the Order but raised other concerns, including a schedule for the payment of costs.

The court found that the respondents' concerns did not relate to the form or content of the Order and signed the Order as drafted by the appellant, adding a provision that it is enforceable without formal entry.

The appellant developer appealed an arbitral award that allowed the respondent purchasers to terminate their agreements of purchase and sale and receive a refund of their deposits.

The arbitrator had found that the developer's failure to check a yes/no box in the Tarion Addendum regarding Early Termination Conditions constituted a breach entitling the purchasers to terminate.

The Superior Court of Justice allowed the appeal, finding the arbitrator's decision unreasonable.

The court held that the failure to check the box was a minor, technical breach that did not justify termination, especially since the agreements clearly contained no Early Termination Conditions.

The arbitral award was set aside and the matter remitted to the arbitrator.

The appellant, a real estate development company, appealed a summary judgment dismissing its action against the respondents regarding a request for proposals for the redevelopment of Toronto waterfront property.

The appellant's proposal was disqualified for listing an ineligible person as an advisor.

When the appellant requested reconsideration, the sponsors declined to rescind the disqualification.

The appellant argued the sponsors owed a duty of fairness in the reconsideration process and that the fairness monitor was inadequately involved.

The Court of Appeal dismissed the appeal, finding no unfairness in the reconsideration process on a factual basis, without deciding the legal question of whether a duty of fairness was owed.

The plaintiff, CG Acquisition Inc., commenced an action against P1 Consulting Inc., Ontario Infrastructure and Lands Corporation (IO), and the Liquor Control Board of Ontario (LCBO) after being disqualified from a Request for Proposal (RFP) process.

The defendants brought motions for summary judgment to dismiss CG's claim, which was framed in tort, alleging breach of a common law duty of fairness and negligent investigation/service provision during the reconsideration of its disqualification.

The court granted summary judgment, finding no freestanding duty of fairness or care owed to a non-compliant bidder, and that the defendants' actions during reconsideration were reasonable and protected by a limitation of liability clause in the RFP.

The moving parties (defendants) brought a Rule 21 motion to strike the plaintiffs' Amended Statement of Claim against the defendant David Rosenkrantz, arguing it disclosed no reasonable cause of action.

The plaintiffs alleged negligent misrepresentation and breach of contract against Rosenkrantz in his capacity as an officer and director of the Patica Companies, relating to a tax deferral arrangement.

The court found the pleadings lacked the necessary material facts to pierce the corporate veil or establish personal liability, negligent misrepresentation, or an agency relationship.

The court struck the claim and the related crossclaim against Rosenkrantz, but granted leave to amend.

An appeal from a motion judge's order regarding a dispute between adjacent property owners over the use of a jointly-owned private roadway.

The appellant acquired property at 5 Hawthorne and took an assignment of an agreement governing the use and care of the private roadway.

The appellant parked vehicles on the roadway during renovations, which the respondent opposed.

The motion judge held that the agreement clearly prohibited parking on the roadway.

The appellant appealed, raising new arguments about an alleged amendment permitting parking on a brick pad adjacent to the properties.

The Court of Appeal affirmed the motion judge's decision, finding the agreement unambiguous and rejecting the appellant's new arguments.

The appellant agreed to purchase a commercial property from the respondent for $9 million, subject to a vendor take-back mortgage.

The transaction failed to close after the parties could not agree on the terms of a secondary financing agreement.

The motion judge granted summary judgment to the respondent, allowing it to retain $1.2 million in deposits.

On appeal, the appellant argued the motion judge erred in interpreting the agreement's secondary financing and escrow deed provisions.

The Court of Appeal dismissed the appeal, finding the motion judge's interpretation of the strict terms for secondary financing was commercially reasonable and supported by the record.

The plaintiffs, stock promoters from Ontario, sued a British Columbia-based stock promoter and a Colorado-based stock transfer agent for breach of contract related to stock promotion services.

The defendants brought a motion to dismiss the action for lack of jurisdiction, arguing that Ontario courts did not have a real and substantial connection to the dispute.

The court found that the contract was formed in British Columbia, not Ontario, and that the defendants did not carry on business in Ontario.

Consequently, Ontario lacked jurisdiction, and the action was dismissed.

The appellants appealed a summary judgment ordering the return of a $2,000,000 deposit to the respondent purchaser after a failed commercial real estate transaction.

The dispute centered on whether the respondent fulfilled its contractual obligation to apply in good faith to assume existing mortgages before rejecting the terms offered.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's interpretation of the contract and his conclusion that a formal application would have been an exercise in futility.