J. Daniel McConville

The appellant vendor entered into an agreement to sell 208 developed building lots to the respondent purchasers.

The vendor chose to build private drinking and wastewater systems and entered into municipal responsibility agreements with the township.

The purchasers refused to pay the capital costs for these private systems, arguing they were not party to the agreements and the purchase price included water services.

The application judge ruled the purchasers were not obliged to pay these costs.

On appeal, the Court of Appeal upheld the decision, finding no palpable and overriding error in the application judge's interpretation of the agreement of purchase and sale.

This decision concerns a comeback motion on a Mareva injunction originally granted against Alykhan Karmali and AK&H Ltd. The plaintiff, Latif Nanji, alleges that he was induced to invest millions of dollars in a business venture based on fraudulent misrepresentations by the defendants.

The court reviews the background of the investments, the lack of supporting documentation, and the use of funds by the defendants.

The court finds that the plaintiff has established a strong prima facie case for fraudulent misrepresentation and that the risk of dissipation of assets justifies the continuation of the Mareva injunction.

The parties brought competing motions under Rule 21.01(1)(a) to determine the validity of a Release signed by the mortgagor, which purported to waive her right to sue the mortgagees and her real estate agent.

The mortgagor had entered into a series of increasingly expensive private mortgages brokered by her real estate agent, who concealed that the lenders were his family members and their companies.

The court found that the real estate agent was the directing mind behind the loans and had breached his fiduciary duty.

The court held that the Release was void and unenforceable because its execution was an unconscionable transaction resulting from an inequality of bargaining power and an improvident bargain, characterized by exorbitant borrowing costs and illegal fees.

This endorsement addresses the issue of costs following a judgment where the action was granted in part, the counterclaim dismissed, and the third-party claim dismissed.

The Plaintiff and Third Party sought costs on a partial indemnity basis up to February 2, 2023, and substantial indemnity thereafter, relying on an offer to settle.

The Defendants failed to submit costs arguments.

The court found the Plaintiff and Third Party were successful and entitled to costs.

Despite potential technical non-compliance with Rule 49.10, the offer to settle's terms were more favourable than the judgment, justifying substantial indemnity from the offer date under Rule 49.13.

The court reduced the quantum sought due to high junior lawyer rates and duplication, ultimately awarding an all-inclusive amount of $115,000.00.

This case involved a dispute between ex-spouses, Kathie Debren (Plaintiff) and Kevin Debren (Defendant), primarily concerning the ownership of a cottage property.

Both parties had a history of fraudulent financial conduct, including sham divorces and bankruptcies with undisclosed assets.

The court found both parties lacked credibility, except for their son, Montana Debren (Third Party), who was drawn into the litigation.

Kevin Debren's counterclaim for beneficial ownership or compensation for property improvements was dismissed due to a lack of credible evidence and the vesting of pre-discharge claims in his trustee in bankruptcy.

Kathie Debren was declared entitled to possession of the cottage, subject to conditions imposed by her trustee in bankruptcy to ensure creditor payment.

Kevin Debren's third-party claim against Montana Debren was also dismissed.

The appellant, a homebuilder, appealed a summary judgment that granted the respondent relief from forfeiture of an $82,916.19 deposit for a home purchase.

The transaction did not close, and the appellant claimed the respondent breached the contract and forfeited the deposit.

The motion judge found it appropriate to relieve the respondent from forfeiture.

The appellant argued the motion judge applied the wrong legal test, asserting that relief from forfeiture is unavailable if the breach was entirely the party's fault.

The Court of Appeal dismissed the appeal, affirming that the correct test, as per Redstone Enterprises Ltd. v. Simple Technology Inc., focuses on whether the forfeiture is out of proportion to damages and if retention would be unconscionable, without making the applicant's fault a precondition.

The court upheld the motion judge's findings regarding the parties' sophistication, lack of loss to the vendor, and the appellant's misleading conduct.

The plaintiffs sought summary judgment for an injunction to prevent the defendants from obstructing their access to Lake Erie, asserting rights under the Canadian Navigable Waters Act (CNWA) and common law riparian rights.

They also claimed damages for trespass.

The court dismissed the plaintiffs' claims for injunctive relief, finding they lacked standing to enforce the CNWA and that their property did not directly abut Lake Erie in its natural low-water state.

However, the court granted summary judgment for the plaintiffs on the trespass claim, awarding $5,000 in damages for the unauthorized clearing of trees and vegetation on their land by the defendants.

The defendants' counterclaim for trespass was not adjudicated due to procedural issues.

AIMCO and CHC MPAR LP entered into a co-ownership agreement to develop a student housing project.

After the project faced zoning rejections, AIMCO and CHC independently acquired a neighbouring property without including MPAR, a 50% shareholder in the general partner.

AIMCO subsequently triggered a shotgun clause to buy out the limited partnership's interest.

MPAR opposed the buyout and applied for relief, alleging oppression, breach of fiduciary duty, and breach of contract.

The court dismissed MPAR's application, finding no oppressive conduct, fiduciary duties, or contractual breaches, as the agreements explicitly excluded obligations regarding outside business opportunities.

AIMCO's application for specific performance of the shotgun clause was granted.

This is a costs endorsement following an appeal decision dated June 30, 2017.

The appellants (Iranian government entities) appealed orders from the Superior Court of Justice.

The Court of Appeal dismissed most appeals but allowed appeals in actions commenced by certain respondents, striking those actions.

The court awarded costs to the respondents on a partial indemnity basis, rejecting the appellants' argument that no costs should be awarded due to novel issues and declining to award substantial indemnity costs or costs to respondents whose actions were struck.

The appellants (Iran and related entities) appealed orders of the Superior Court of Justice recognizing and enforcing U.S. judgments obtained by victims of terrorism against Iran for its sponsorship of terrorist attacks.

The respondents sought to enforce these judgments in Ontario under the Justice for Victims of Terrorism Act (JVTA) and amendments to the State Immunity Act (SIA).

Iran challenged the recognition and enforcement of the judgments on multiple grounds, including arguments regarding state immunity, the temporal scope of the JVTA, proof requirements, limitation periods, jurisdiction, public policy, diplomatic immunity, and the appropriateness of costs awards.

The Court of Appeal dismissed Iran's appeal, save for judgments arising from terrorist attacks that occurred prior to January 1, 1985, which could not be enforced under the JVTA.

Following the dismissal of Iran's motions to set aside default judgments and a Mareva injunction, the plaintiffs sought costs.

Iran argued it was immune from costs orders under the State Immunity Act and the Justice for Victims of Terrorism Act.

The court held that Iran was not immune from costs and awarded the plaintiffs costs on a partial indemnity basis, finding the claimed amounts reasonable given the complexity and high stakes of the proceedings.

The plaintiffs, victims of terrorist attacks sponsored by Iran, sought to enforce U.S. judgments against Iran in Ontario under the Justice for Victims of Terrorism Act (JVTA).

Iran brought motions to set aside or stay the default judgments and a Mareva injunction, arguing state and diplomatic immunity, limitation periods, and public policy.

The court dismissed Iran's motions, finding that the State Immunity Act and JVTA removed Iran's jurisdictional and enforcement immunity, the actions were not statute-barred, and the U.S. judgments met the criteria for recognition in Canada.

The court also granted summary judgment to the Bennett plaintiffs to enforce their U.S. judgment against Iran's non-diplomatic property in Ontario.

The plaintiff, a real estate agent, brought a motion for an interlocutory mandatory injunction against the defendants, a real estate brokerage and its owner, with whom he had entered into a joint venture agreement to open a new branch office.

The plaintiff sought orders directing the release of withheld commissions, appointing him as office manager, and prohibiting the defendants from incurring expenses over $1,000 without his approval.

The court dismissed the motion, finding that the plaintiff failed to establish a strong prima facie case for the release of commissions and failed to demonstrate irreparable harm regarding the alleged breach of the joint venture agreement's expense approval clause.

The appellants brought a pre-hearing motion seeking to resolve an item on a warranty assessment report and to exclude certain expert reports.

The respondent requested an adjournment of the motion to the first day of the hearing, citing the unavailability of a key witness.

The Tribunal granted the adjournment, finding that the appellants' motion was premature and could be fairly addressed at the commencement of the hearing without prejudicing the parties.

The plaintiffs invested $50 million in a Russian oil and gas joint venture, relying on representations made by the defendants regarding the involvement of another major investor and the status of the corporate vehicles.

The plaintiffs later discovered that the corporate vehicles were sham public companies, the other investor had not funded its portion, and the defendants had engaged in stock manipulation and unauthorized issuance of free-trading shares.

The plaintiffs sued for deceit, breach of fiduciary duty, and unlawful conspiracy.

The defendants counterclaimed for breach of contract, inducing breach of contract, and malicious prosecution.

The Superior Court of Justice found several defendants liable for fraudulent misrepresentation, breach of fiduciary duty, and conspiracy, awarding substantial damages to the plaintiffs.

The defendants' counterclaim was dismissed in its entirety.

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, former agents of the respondent insurance company, appealed the dismissal of their motion for certification as a class action.

They claimed termination and severance pay under the Employment Standards Act, 2000, alleging constructive dismissal due to the employer's change in its business model.

The Divisional Court upheld the motion judge's decision, finding that the claims required highly individualized inquiries regarding the impact of the changes, reasonable notice, and mitigation, and therefore lacked commonality.

The appeal was dismissed.