Ian Cantor

Scott Steel Erectors Inc. (SSE) brought a motion for the payout of statutory holdbacks retained by Ausenco Engineering Canada Inc. and for a stay of the proceedings in favour of arbitration.

The parties were involved in a construction project at the Magino Mine.

Ausenco argued that its holdback obligations ended when it posted alternate security to vacate the liens and that it had set-off claims against SSE.

The court found that the holdback was a statutory obligation that was not eliminated by posting a bond, and that set-off claims could not be deducted from the holdback.

The court ordered Ausenco to pay the principal holdback amount of $1,629,242.92 to SSE and $78,826.45 into court for another subcontractor.

The court also granted the stay, finding that the subcontracts contained mandatory arbitration clauses and that SSE had not waived its right to arbitrate by taking defensive steps to preserve its lien rights.

The court approved a proposed settlement and certified the action for settlement purposes under the Class Proceedings Act, 1992.

The class consists of approximately 100 investors in a failed real estate limited partnership project.

The settlement restores the class members’ proportionate interest in the property, now with greater development density and less debt, and is considered generous.

The court found the settlement fair, reasonable, and in the best interests of the class, and approved class counsel’s fees.

The action will continue only as between the defendants for unresolved crossclaims.

The applicant, a commercial tenant, sought relief from forfeiture after its lease was terminated for nonpayment of rent.

The court found that the landlord did not waive its right to terminate the lease, as any waiver required written confirmation, which was absent.

The tenant was in substantial arrears and failed to pay rent for several months.

The court also found that the landlord did not breach the lease by failing to provide notice, as the lease allowed termination for nonpayment after 15 days without notice.

The application for relief from forfeiture was dismissed, as the tenant delayed bringing the application, the lease was about to expire, and a new tenant had already occupied the premises.

The appellant landlord appealed a judgment that declared its lease termination invalid.

The Court of Appeal dismissed the appeal, affirming that the landlord's notice of termination was invalid because it failed to specify the precise amount of arrears and did not warn the tenant of the intention to terminate, which was required due to prior communications only mentioning interest accrual.

The court also upheld the costs award from the lower court and awarded costs for the appeal to the respondent.

The appellant, BSAR (Eglinton) LP, appealed a trial judgment that awarded a real estate commission to the respondent, Harvey Kalles Realty Inc. The appellant argued that a condition for the commission, related to the definition of "Tenant" in a Commission Agreement and the automatic termination of an offer to lease, was not met.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors or errors in law in the trial judge's interpretation of the agreements.

The court affirmed the trial judge's finding that the objective intention of the parties was for the commission to be paid if a lease was concluded with any Loblaw entity, and that the offer to lease had not terminated.

The plaintiff, a real estate brokerage, sued the defendant for breach of contract for an unpaid leasing commission on a commercial property.

The core issues involved whether an Offer to Lease was terminated, whether a subsequent lease with a Loblaw affiliate (Shoppers Drug Mart) fulfilled the commission agreement's conditions, and the interpretation of the "Tenant" definition to include after-acquired affiliates.

The court found that the Offer to Lease was not terminated, the Shoppers Lease substantially fulfilled the conditions, and the definition of "Tenant" objectively included entities that became Loblaw affiliates within the specified 24-month period.

The plaintiff was awarded the commission, but interest was limited to 5% per annum due to a violation of the Interest Act.

The applicant, Fazlollah Seyedali Lavasani, sought to set aside a default judgment obtained by the respondents, Sheldon Rakowsky and Sheldon Rakowsky Professional Corporation, related to mortgage loans.

The applicant argued lack of notice and presented several defences.

The court found that the applicant had constructive notice of the action through his attorney and failed to establish any arguable defence on the merits, including claims of knowing assistance in breach of fiduciary duty, knowing receipt, deferred indefeasibility, or Family Law Act protections.

The motion to set aside the default judgment was denied, and costs were awarded to the respondents.

This is a costs endorsement following a successful application by Bloor Street Diner Limited.

The applicant sought costs of $154,223.35 on a partial indemnity basis, while the respondent proposed $87,011.24.

The court considered the importance of the application, the extensive material filed, cross-examinations, and the two-day argument.

Despite some duplication of effort by counsel and the straightforward nature of the commercial lease terms, the court awarded the applicant $120,000.00, inclusive of disbursements and taxes, finding it a fair and reasonable amount based on proportionality and reasonable expectations.

The applicant sought costs of $90,180 plus disbursements on a substantial indemnity basis against both the Ministry of Natural Resources and Mr. Duncan following a successful application for judicial review.

The Divisional Court declined to award costs against the Ministry, finding the real dispute was between the applicant and Mr. Duncan.

The court also rejected the request for substantial indemnity costs, noting Mr. Duncan's conduct was not harsh or vexatious.

After reducing the claimed amount for excessive fees, including those of a retired lawyer acting as a witness, the court fixed costs at $30,000 inclusive of HST and disbursements payable by Mr. Duncan.

The applicant cottagers association sought judicial review of the Minister's decision to grant a pit licence to the respondent landowner under the Aggregate Resources Act.

The licence was issued based on a municipal confirmation that the pit was a legal non-conforming use.

The Divisional Court found that the confirmation was based on misinformation, as there was no evidence the property was used as a pit prior to the relevant zoning by-laws.

The Court held the standard of review was correctness and set aside the Minister's decision, referring the matter back for reconsideration.

The appellants appealed an order refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellants failed to meet the test to set aside the default judgment and that their affidavit evidence did not disclose a triable issue.