Irving Marks

The appellants appealed a summary judgment dismissing their claim for specific performance of an agreement of purchase and sale of land.

The appellants had failed to pay the deposit within the stipulated five days, and the vendors treated the agreement as at an end.

The Court of Appeal dismissed the appeal, finding the motion judge was entitled to conclude that the appellants knew an oral comment by the vendors' representative was not legally binding to amend the agreement or waive rights.

The appellants appealed a decision regarding their claims for water leak repairs under a statutory warranty.

The court previously dismissed the appeal but issued this supplementary endorsement to address remaining issues regarding the interpretation of settlement releases, a side letter, and estoppel.

The court held that the releases constituted the entire agreement and that the side letter did not bind the warranty program.

Furthermore, the appellants were estopped from relying on the side letter against the program because the program had reasonably relied on the releases to its detriment by relinquishing security.

The appeal on the remaining issues was dismissed with costs.

The appellant, an unsecured creditor in a bankruptcy, obtained an order under s. 38 of the Bankruptcy and Insolvency Act to recover $100,000 US paid by the bankrupt to the respondent after the bankruptcy.

The application judge allowed the respondent to retain a portion of the funds on the basis of an implied trust and s. 99(1) of the BIA.

The Court of Appeal allowed the appeal, finding that the three certainties of a trust were not met and that s. 99(1) did not apply.

The respondent was ordered to pay the appellant the $100,000 US.

The appellant condominium corporations appealed a Licence Appeal Tribunal decision disallowing their warranty claims against the Ontario New Home Warranty Program.

The appellants argued that under s. 13(6) of the Ontario New Home Warranties Plan Act, statutory warranties continue in force despite any agreement to the contrary, rendering their previously executed releases with the builder unenforceable.

The Divisional Court distinguished prior case law, noting the releases were executed by sophisticated parties with legal advice to settle a known, properly filed warranty claim.

The Court held that the Act encourages settlements and does not bar parties from settling claims in exchange for a release.

The appeal was dismissed.

The appellant challenged a summary judgment order that had dismissed most of his claims arising from an alleged agreement concerning the purchase, development, and later sale of a Toronto property.

The Court of Appeal held that the dispute turned on conflicting evidence and the central question of good faith, which required findings of fact, weighing of evidence, and implicit credibility determinations.

Those issues could not properly be resolved on a summary judgment motion.

The appeal was allowed, the cross-appeal dismissed, and the summary judgment motion dismissed.

Following further written representations on costs and funds in court, the Court of Appeal amended its order in a commercial appeal.

The court directed that funds paid by the appellant on account of land transfer tax relating to a registered instrument be released from prior orders and paid to the appellant.

The remaining issues of costs and the balance of money in court were left to the assessment officer, with the remaining funds to stay in court pending a final order of assessment.

The appellant challenged the trial judge’s conclusion that a purported purchase and sale transaction was not genuine and therefore was not bona fide for the purposes of s. 70 of the Registry Act.

The Court of Appeal held that the trial judge found the transaction to be a sham and that there was ample evidence supporting that conclusion, including back-dated documents, lack of due diligence, and deficiencies in the evidence.

A cross-appeal concerning slander of title, punitive damages, and costs was also dismissed, although leave to appeal costs was granted.

The appeal was dismissed with costs, except that a non-participating respondent was awarded no costs.