Harvin D. Pitch

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 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 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.

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 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 plaintiff purchaser moved for summary judgment seeking return of $1.2 million in deposits paid under an aborted real estate transaction, while the defendant vendor cross‑moved for summary judgment declaring its entitlement to retain the deposits.

The dispute centred on whether the vendor improperly refused to accept a proposed subordination and standstill agreement relating to secondary financing and thereby prevented closing.

The court held that the agreement of purchase and sale permitted secondary financing only if the secondary lender subordinated its rights to the vendor’s vendor‑take‑back mortgage and related security provisions, including an escrow deed provision and an escalator clause.

The purchaser’s proposed financing arrangements would have impaired those security rights and therefore did not comply with the contract.

The court concluded the purchaser failed to close and the vendor was entitled to retain the deposits.

The plaintiff and defendants entered into an agreement of purchase and sale for commercial properties for $36,000,000.

The agreement was conditional on the plaintiff obtaining approval to assume existing mortgages on terms satisfactory to the buyer in its 'sole and absolute discretion.' The plaintiff was unable to secure satisfactory terms from the mortgagees, declared the agreement null and void, and sought the return of its $2,000,000 deposit.

Both parties moved for summary judgment.

The court found that the plaintiff made a bona fide effort to complete the transaction and that the defendants' interpretation would render the 'sole and absolute discretion' clause meaningless.

The court granted summary judgment to the plaintiff, ordering the return of the deposit plus costs.

The plaintiffs brought a motion to certify a product liability class action against Whirlpool for pure economic losses related to allegedly negligently designed front-loading washing machines that were prone to biofilm buildup.

The court dismissed the certification motion, finding it plain and obvious that the plaintiffs had no tenable cause of action in contract, breach of statute, negligence, or waiver of tort.

Specifically, the court held that there is no recovery in negligence for pure economic losses for a shoddy but non-dangerous consumer product.

The plaintiffs sought certification of a proposed class action arising from explosions at a propane facility in Toronto that allegedly caused personal injury, property damage, and evacuation of nearby residents.

The court considered the certification requirements under s. 5 of the Class Proceedings Act, 1992.

It held that the pleadings against certain landlord defendants failed to disclose a viable cause of action because the allegations relying on agency, single‑group enterprise, and alter‑ego theories lacked material facts capable of piercing the corporate veil.

Those pleadings were struck with leave to amend and the certification motion against those defendants was adjourned.

The proceeding was otherwise certified as a class action against the remaining defendants, with common issues approved and representative plaintiffs appointed.