James M. Wortzman

A residential condominium developer sought a declaration that communications from the Chief Building Official regarding parking requirements constituted appealable orders or decisions under the Building Code Act.

The developer argued that emails threatening permit revocation if occupancy permits were requested without adequate parking prevented it from applying for occupancy.

The court found that the emails were pre-emptive communications indicating the CBO's future intentions, not final decisions on actual occupancy permit applications.

As no formal decision refusing occupancy had been made, the court lacked jurisdiction to intervene.

However, the court maintained a temporary parking ratio of 1.1 spaces per unit pending the Ontario Land Tribunal's decision on the developer's parking variance appeal.

The court granted the defendant’s motion to strike the plaintiff’s claim for specific performance of an alleged agreement to purchase a supermarket business, finding that the plaintiff failed to plead material facts showing acceptance of the agreement, lacked standing, and that the alleged agreement was unenforceable under the Statute of Frauds.

Leave to amend was granted only to clarify standing for a claim for return of deposit.

This endorsement from the Court of Appeal for Ontario addresses a request for directions regarding its prior decision.

The respondent sought clarification, arguing the previous decision might have inadvertently set aside parts of the application judge's order that were not appealed or were abandoned.

The court clarified that its decision to set aside the application judge's order was due to identified errors affecting lien rights and PPSA registration.

It affirmed that the appellants (respondents in this endorsement) did not abandon any relief sought in their notice of appeal and factum, including payment for storage/rental costs intertwined with repairs.

The court confirmed the appellants' possessory lien over the aircraft, encompassing both repair and storage/rental costs, and remitted these intertwined issues to the Superior Court for determination.

This is a costs endorsement following a successful appeal.

The Court of Appeal had previously allowed the appeal, set aside the application judge’s order, and remitted certain issues for trial, declaring that the appellants had a possessory lien.

The appellants, having prevailed on the appeal and related motions, were awarded all-inclusive costs for the appeal, a panel motion, three pre-appeal motions, and the original application, totaling $143,977.79.

The plaintiffs brought a motion under Rule 32.01 of the Rules of Civil Procedure seeking an order to permit their consultant to conduct a Phase Two Environmental Site Assessment of a property.

The plaintiffs argued the assessment was necessary to determine if the property was contaminated, which was relevant to their claims of misrepresentation by the defendants regarding the property's environmental status and to the remedies sought (specific performance with abatement or return of deposit).

The defendants opposed, arguing the plaintiffs had waived an environmental condition in the agreement of purchase and sale and that the motion was delayed and an abuse of process.

The court granted the plaintiffs' motion, finding the inspection necessary and probative for the trier of fact, noting no prejudice to the defendants, and deeming the delay not unreasonable.

The court also provided directions for the parties to agree on a timetable for the inspection, mediation, and trial, and on the terms of the inspection.

The appellants appealed an order vacating their possessory lien on an aircraft under the Repair and Storage Liens Act.

The application judge had erred by vacating the lien without fully determining whether the repair work was authorized and if any amounts were owing, despite acknowledging that litigation on these issues was possible.

The Court of Appeal found that the application judge failed to make necessary findings and improperly applied the RSLA.

The appeal was allowed, the original order set aside, and the appellants' possessory lien was declared to exist until further court order, with the issues of authorization and amounts owing remitted to trial.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against their property, arguing that the plaintiffs failed to make full and fair disclosure on the ex parte motion to obtain the CPL, that there was no triable issue regarding the plaintiffs' claim to an interest in the property, and that equitable factors favored discharge.

The plaintiffs opposed, arguing delay and disputing the defendants' grounds.

The court dismissed the defendants' motion, finding that the defendants' extensive delay in bringing the motion was sufficient grounds for dismissal.

The court further found that the plaintiffs had made full and fair disclosure and that there was a triable issue regarding the plaintiffs' claim for specific performance, with equitable factors favoring the plaintiffs.

This decision addresses two cross-motions in complex, joined real estate development actions: the plaintiffs' motion for a further affidavit of documents and the defendants' motion to bifurcate the action and postpone document production.

The court dismissed the defendants' bifurcation motion, holding that bifurcation under Rule 6.1.01 requires party consent, which was absent.

The request for delayed production was also denied, as the defendants failed to demonstrate serious prejudice or that the documents were solely related to damages.

The plaintiffs' production motion was granted, with the court finding the requested documents relevant to both liability and defence, and the request proportionate given the $65 million in dispute.

The court emphasized that the deemed undertaking rule mitigates concerns about commercially sensitive information.

This appeal concerned the suitability of specific performance as a remedy in a failed real estate transaction.

The appellants (defendants) challenged the trial judge's order for specific performance, arguing that the property was not unique and that the corporate purchaser's intent was for investment, not personal use.

The Court of Appeal found that the trial judge erred by relying on inadmissible hearsay evidence regarding the corporate principal's (Mr. Lin's) intentions, as he did not testify and was not proven unavailable.

The court concluded that the corporate structure and expert evidence supported an investment purpose, making damages an adequate remedy.

The appeal was allowed, the specific performance order was set aside, and the issue of damages was remitted for a new trial.

The respondent's cross-appeal on costs was dismissed.

The plaintiffs and defendants were equal shareholders in two closely held corporations that owned and operated gas stations and a driving range.

Following a breakdown in their relationship and a deadlock over succession planning and the division of corporate assets, both parties alleged oppressive conduct against the other.

The court found that both shareholders had engaged in conduct that unfairly disregarded the other's interests.

Given the irreparable breakdown of trust and the deadlock, the court ordered the winding up and liquidation of the companies by a court-appointed receiver.

The court dismissed the claims of the plaintiff's wife, finding she was not a shareholder or officer, but awarded the plaintiff $250,000 in compensation for his historical management of the companies.

The applicants, members of the Geneva Park community and Friends of Geneva Park, brought an urgent application seeking declarations of trust (implied, constructive, resulting, or charitable purpose trust) over the Geneva Park property, an order for directions or investigation under the Charities Accounting Act, production of the sale agreement, a Certificate of Pending Litigation, and an interim injunction to prevent the sale of the property by YMCA of Simcoe/Muskoka (YSM) to a private purchaser.

The applicants argued that their historical donations and contributions created a beneficial interest or trust.

The court dismissed the application, finding no evidence to support the creation of any trust, no misuse of charitable funds by YSM, and that granting an injunction or CPL would be unjust and inequitable, as the sale was a reasonable solution for the financially struggling charity.

The appellant abandoned its appeal, and the respondent sought substantial indemnity costs.

The appellant challenged the court's jurisdiction to award costs for an abandoned appeal and proposed a lower partial indemnity amount.

The Court of Appeal affirmed its jurisdiction under s. 131 of the Courts of Justice Act, finding that Rule 61.14 did not displace this discretion.

The court awarded the respondent partial indemnity costs, finding substantial indemnity was not justified.

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.

Following the defendant's unsuccessful motion for summary judgment, the parties made written submissions on costs.

The plaintiff sought full indemnity costs of $70,777.55, while the defendant argued for no costs or costs on the Small Claims Court scale.

The court found no basis for full or substantial indemnity costs, nor for restricting costs to the Small Claims Court scale, noting the motion involved a novel issue regarding Infectious Disease Emergency Leave.

Applying the principle of proportionality, the court awarded the plaintiff partial indemnity costs fixed at $22,840.13.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiffs in a dispute over an alleged real estate joint venture.

The court found that the plaintiffs failed to make full and frank disclosure on the ex parte motion, specifically regarding guarantees and paid architectural services.

The court also determined that damages were an adequate remedy and the balance of convenience favoured discharging the CPL.

The CPL was discharged, subject to a condition requiring the defendants to provide 45 days' advance notice before transferring or encumbering the subject properties.

The plaintiff sought a reconsideration of a costs decision awarding the defendant City partial indemnity costs of $10,517.19 for an abandoned motion.

The plaintiff argued it was unclear whether a response to the City's costs submissions was required.

The court dismissed the reconsideration request, noting the plaintiff failed to respond to the duly served submissions or challenge the presumptive entitlement to costs under Rule 37.09(3), and confirmed the previous costs award.

The plaintiff sought costs of $89,304.86 on a partial indemnity basis following a successful motion for declaratory relief regarding an easement over the defendant's property.

The defendant argued for each party to bear its own costs due to divided success, or alternatively, a reduced amount.

The court rejected the divided success argument, finding the plaintiff was the successful party, but reduced the costs award to $45,000 all inclusive, finding the plaintiff's claim excessive and noting the abandoned claim against the municipality.

The plaintiff Medical Centre and defendant JD Development owned abutting properties subject to a system of easements.

Both submitted redevelopment site plans to the City of Markham.

The Medical Centre's plan relied on paving an easement over JD Development's property for vehicular access, while JD Development's plan showed the easement as partially sodded, which would block vehicular access.

The Medical Centre brought a motion for declarations regarding its right to use and pave the easement.

JD Development argued the Local Planning Appeal Tribunal (LPAT) had exclusive jurisdiction.

The Superior Court held it had jurisdiction to determine property rights, declared the Medical Centre had the right to use the easement for vehicular traffic and to pave it at its own expense, but declined to order JD Development to amend its site plan.

The appellants appealed a decision of the Superior Court regarding the interpretation of a "Net Developable Area" clause in two agreements for the purchase and sale of development lands.

The central issue was whether tableland used for storm water management ponds was included in the definition of Net Developable Area when such lands fell within the Protected Countryside designation of the Greenbelt Plan.

The Court of Appeal upheld the application judge's interpretation, finding that the parenthetical exception did not apply to Greenbelt lands and that the terms "open space lands" and "Greenbelt lands" have distinct meanings subject to different planning controls.

Delta Elevator Company Limited brought a motion to enforce a settlement agreement with 31 Kingsbury Inc. regarding the installation and inspection of elevators.

Kingsbury opposed, arguing that no settlement was reached, or that it should not be enforced, or that granting judgment would be akin to partial summary judgment.

The court found that the parties had reached a legally binding settlement with agreement on all essential terms, and that Delta had not repudiated the agreement.

The court granted Delta's motion, ordering Kingsbury to comply with the settlement terms and pay costs.