Ian P. Katchin

The plaintiffs brought a motion for partial summary judgment seeking the release of $500,000 held in escrow following a share purchase agreement.

The defendants brought cross-motions seeking an interpleader order and a portion of the funds for uncollectible accounts receivable.

The court granted the plaintiffs leave to bring their motion after setting the action down for trial, finding it was an efficient step.

The court held that partial summary judgment was appropriate as the issue could be resolved on uncontested facts.

The court found that the defendants failed to provide the required notice under the escrow agreement, entitling the plaintiffs to the return of the full escrow amount plus interest.

The appellant landlord appealed a decision allowing the respondent commercial tenant to exercise a lease renewal option despite being in arrears.

The tenant had purported to exercise the option, but the landlord argued the option was void for uncertainty and that the tenant was in default of rent-related covenants.

The Court of Appeal held that while the renewal option was not void for uncertainty, the tenant was in default of its obligation to pay additional rent when due.

As the tenant failed to meet the precondition of paying all rent when due, the purported exercise of the renewal option was invalid and unenforceable.

The appeal was allowed and the tenant was ordered to vacate the premises.

Following an application by a landlord seeking a declaration that a tenant was in breach of a lease and that a renewal option was void for uncertainty, the court previously determined that the issues could not be resolved on affidavit evidence and required a trial.

The tenant sought costs of approximately $30,792.74 on a partial indemnity basis, while the landlord argued that costs should either be reserved to the trial judge or reduced due to unresolved arrears issues.

Applying the discretion under s. 131 of the Courts of Justice Act and the factors under Rule 57.01 of the Rules of Civil Procedure, the court held that the tenant achieved sufficient success to justify an immediate costs award.

However, the claimed costs were reduced to reflect issues yet to be adjudicated at trial.

The moving party sought an order compelling the insurer and broker defendants to produce additional documents and deliver a further and better affidavit of documents in an action concerning insurance coverage and alleged breach of the duty of utmost good faith.

The dispute arose after the insurer denied coverage relating to failures of transformers in solar installations, and the plaintiff alleged the defendants conducted an inadequate investigation and acted in bad faith.

The court held that the agency agreement between the insurer and broker, the underwriting file, and the claims and investigation files were relevant to issues of coverage and bad faith and therefore producible.

The court further found that the defendants failed to properly establish claims of solicitor‑client privilege and litigation privilege and ordered more particularized privilege schedules.

The motion was granted and the defendants were ordered to produce the requested documents and communications within 30 days.

The applicant landlord brought an application seeking a declaration that its tenant was in breach of a commercial lease and that the renewal option was void for uncertainty.

The court found that the renewal option, which provided for rent at 'current rates', was not void for uncertainty as it could be determined by the court or an arbiter.

On the issue of whether the tenant was in default of rent and common expenses, the court found there was a genuine issue regarding the proper calculation of arrears and directed a trial to determine the amounts owing.

The plaintiffs brought a motion to compel production of confidential financial and Key Performance Indicator data relating to seven non-party Lexus dealerships, which were in the possession of the defendant.

The plaintiffs argued the information was necessary to test the reliability of averages used by the defendant’s expert in calculating the plaintiffs’ alleged loss of profits following termination of a dealership agreement.

The court held that the individual dealer data was not producible under Rule 31.06(3) because the defendant’s expert had not received or relied on that underlying information.

Although the documents were relevant under Rule 30.02 to the issue of loss of profits, the court declined to order production after balancing proportionality and prejudice.

The court found that disclosure would cause significant prejudice to the non-party dealers, whose confidential financial information would be revealed to a direct competitor.

The plaintiffs’ motion was dismissed and costs were awarded to both the defendant and the non-party dealers.

The applicant sought declarations that a writ of execution obtained by the respondents did not attach to his real property and requested removal of execution restrictions from title.

The respondents brought a responding application asserting that the writs bound the applicant as the true judgment debtor under a foreign judgment enforcement action.

The court found the applicant had never been properly served with the statement of claim underlying the default judgment relied upon by the respondents.

Without valid service, the judgment was a nullity and could not support the writ of execution against the applicant’s land.

The court granted the applicant’s relief and dismissed the respondents’ application.

The plaintiffs brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing their action for delay after they failed to set the action down for trial by the deadline imposed in a status hearing timetable order.

The court applied the contextual approach and the Reid factors governing motions to set aside registrar dismissals, including explanation for litigation delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

The court found the missed deadline resulted from counsel’s inadvertence, the motion was brought promptly, and the plaintiffs had provided satisfactory explanations for brief periods of delay.

Although the limitation period had expired, the plaintiffs rebutted the presumption of prejudice and the defendants failed to demonstrate significant actual prejudice.

The registrar’s dismissal order was therefore set aside and a new timetable imposed.

Creditors brought a motion under s. 69.4 of the Bankruptcy and Insolvency Act seeking a declaration that the statutory stay of proceedings arising from a proposal no longer applied to their civil action against the debtor.

The underlying action alleged fraud, conspiracy, deceit, and conversion involving the misappropriation of significant funds.

The court held that the creditors would likely be materially prejudiced by continuation of the stay and that equitable grounds justified lifting it, particularly where the alleged debt would likely survive a bankruptcy discharge and the debtor appeared to be delaying the proceedings.

The court also confirmed a previously granted Mareva injunction on a nunc pro tunc basis to preserve assets.

Costs were awarded to the moving parties on a partial‑indemnity basis.

The moving parties sought leave to appeal an order dismissing their appeal from a Master's decision.

The Master had dismissed their motion for a further and better affidavit of documents from the defendant accounting firm, limiting the scope of relevant documents to those relating to the fraud identified in a forensic auditor's report.

The Divisional Court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's order regarding relevance.

Although the motion judge erred in applying an overly restrictive standard of review, this error had no impact on the outcome.