Ian N. Roher

The appellant landlord appealed a motion judge's decision not to terminate a commercial tenancy and grant a writ of possession, despite the tenant's late payment of outstanding rent.

The Court of Appeal determined it lacked jurisdiction because the order appealed from was interlocutory, not final, as it did not dispose of the substantive rights in the ongoing action.

The appeal was transferred to the Divisional Court for the appellant to seek leave.

Following a successful urgent motion by the tenant for relief from forfeiture and a declaration of unlawful lease termination during the COVID-19 pandemic, the court determined the costs of the motion.

The court awarded the tenant substantial indemnity costs fixed at $150,000, finding the landlord's conduct in terminating the lease and immediately re-leasing the premises to be reprehensible and high-handed.

The court declined to order costs against the landlord's principal personally but allowed the tenant to set off the costs award against future rent.

The plaintiff tenants brought a motion for an injunction after being locked out of their commercial premises by the landlord defendants for non-payment of rent during the COVID-19 pandemic.

The court found that the landlord had agreed to accept April rent in installments and subsequently demanded future rent, thereby waiving its right of forfeiture.

The court declared the termination of the lease unlawful, ordered the lease reinstated, and noted that even if the termination had been lawful, relief from forfeiture would have been granted given the unprecedented pandemic circumstances and the landlord's conduct.

Following a decision where the defendants' cross-motion to stay the plaintiff law firm's action pending an assessment of accounts was granted, both parties sought costs.

The defendants claimed $9,553.98 on a substantial indemnity basis, while the plaintiff claimed $24,611.67 on a partial indemnity basis.

The court found that there was divided success and that both sides had taken disproportionate and inappropriate steps in the litigation.

Consequently, the court exercised its discretion to make no order as to costs.

The law firm Teplitsky, Colson LLP sued its former clients, the Seiderers, for unpaid legal fees and other claims (breach of contract, misrepresentation, deceit, unjust enrichment, punitive damages, and a charging order/lien), after the Seiderers initiated a bill assessment under the Solicitors Act.

The law firm moved to stay the assessment and for leave to prosecute its action nunc pro tunc.

The Seiderers cross-moved to stay the law firm's action pending the assessment.

The court found no genuine dispute about the retainer that would oust the assessment officer's jurisdiction, concluding the core dispute was about the quantum of fees.

The court dismissed the law firm's motion and granted the Seiderers' cross-motion, staying the law firm's action pending the assessment, and ordered the Seiderers to disclose and pay settlement funds into court.

The plaintiffs, Magnotta Winery Corporation, sought leave to file a supplementary affidavit responding to evidence from a Rule 39.03 examination of an LCBO employee.

The LCBO opposed, arguing that the plaintiffs had already cross-examined an adverse party's deponent and that the evidence was irrelevant to its Rule 21.01(b) motion.

The court, applying Rule 1.04(2) by analogy to Rule 39.02(2) and the four-part test from First Capital Realty Inc., found the evidence relevant, responsive, and that no non-compensable prejudice would result, and that the plaintiffs had an adequate explanation.

Leave was granted, and the LCBO's cross-motion to strike portions of the plaintiffs' factum was dismissed.

The plaintiff, FLS Transportation Services Inc., sought an interim injunction against former employees and their new employer, Charger Logistics Inc., to restrain them from working for a competitor, soliciting clients and employees, and misusing confidential information.

The court applied the three-part test for an interlocutory injunction (serious issue to be tried, irreparable harm, balance of convenience) and also considered the "clean hands" doctrine.

The court found that FLS failed to establish a strong prima facie case for breach of restrictive covenants, breach of confidence, or fiduciary duty, largely due to FLS's own prior statements in other proceedings that the information was not confidential.

Furthermore, FLS failed to demonstrate irreparable harm, and the balance of convenience favoured the defendants.

The motion was dismissed, also noting that FLS's conduct in misrepresenting the court's order to a client constituted a failure to come to court with "clean hands."

The defendant brought a motion for summary judgment to avoid liability on a guarantee, arguing the plaintiff suffered no damages because it was a flow-through vehicle and its investors' claims were statute-barred.

The court dismissed the motion as unreasonable and lacking legal foundation.

The plaintiff sought costs on a substantial indemnity basis under Rule 20.06 and based on an unaccepted offer to settle.

The court awarded the plaintiff costs of $37,658.66 on a substantial indemnity basis, finding the defendant's motion was not reasonably brought.

The defendant moved to stay an Ontario action on the basis that Vermont was the more appropriate forum for a dispute arising from an allegedly unpaid US$3.5 million promissory note connected to hotel investments in Vermont and New Hampshire.

The court held that Ontario had jurisdiction simpliciter because the defendant resided in Ontario, triggering a presumptive connecting factor under the framework established in Club Resorts Ltd. v. Van Breda.

The defendant failed to rebut the presumption or demonstrate that Vermont was clearly the more appropriate forum under the doctrine of forum non conveniens.

The court emphasized that both parties resided in Ontario, the alleged default occurred in Ontario, the defendant’s assets were located in Ontario, and requiring the plaintiff to litigate in Vermont would create unfairness because he was barred from entering the United States.

The motion to stay the Ontario proceeding was dismissed.