Jennifer Therrien

The appellant homeowners' action was administratively dismissed for delay under r. 48.14(1) of the Rules of Civil Procedure because it was not set down for trial within five years of commencement.

The motion judge declined to set aside the dismissal, applying the Reid factors and finding insufficient evidence to explain the delay, with inferred prejudice where examinations for discovery had not occurred.

The Court of Appeal found no palpable and overriding error in the motion judge's reasoning, noting that the appellants bore the primary responsibility for their action's progress and that the delay was moving into the realm of 'inordinate' once the five-year mark was crossed.

Anbros Financial Inc., a broker, sought summary judgment for an $88,000 brokerage fee from 2528367 Ontario Inc. and its guarantors.

Anbros procured a loan commitment from Firm Capital Corporation (FCC) for a construction project, but the defendants did not proceed.

The defendants argued the Letter of Intent (LOI) was not binding and that the procured commitment was not substantially in accordance with the LOI.

The court found the LOI to be a binding agreement and that the defendants, by signing a subsequent Letter of Interest with FCC, had accepted the modified terms, making the broker fee payable upon issuance of the commitment.

The court dismissed the defendants' arguments, finding their rejection disingenuous and a tactic to avoid payment.

Summary judgment was granted in favour of Anbros for $88,000.

The applicant sought a declaration that a right of first refusal (ROFR) on her property was extinguished and an order for its removal from title.

The ROFR was triggered by a third-party offer, which the respondent exercised but then failed to complete.

The court interpreted the ROFR clause and common law principles, concluding that the ROFR was extinguished once exercised, even if the transaction was not completed, as the clause did not provide for reinstatement in such circumstances.

The application was granted, and the ROFR was ordered removed from title.

The moving party brought an urgent motion for the production of an Agreement of Purchase and Sale (APS) under Rule 30.04(2) of the Rules of Civil Procedure, arguing it was referred to in the responding party's affidavits.

The underlying application sought to extinguish a right of first refusal held by the moving party.

The court dismissed the motion, finding the APS was not incorporated by reference into the affidavits.

Furthermore, the court exercised its discretion to deny production, concluding the APS was not relevant to the core issue of the application and its disclosure could prejudice the responding party due to commercial sensitivity.

The plaintiff moved for summary judgment on an action for payment of a promissory note executed by the defendants.

The defendants argued the note was unenforceable due to an oral collateral agreement, lack of consideration, duress, and fraudulent misrepresentation.

The court granted summary judgment, finding no genuine issue for trial.

The court applied the parol evidence rule to exclude evidence of the alleged collateral agreement and found the defendants' claims of duress and fraud to be unsupported by credible evidence.

The plaintiff was awarded $250,000 plus interest.

The defendant brought a motion to consolidate a civil action with a family court application.

The civil action involved a dispute over whether a $250,000 transfer of funds from the plaintiff to the defendant was a loan or a gift, while the family court application involved the enforcement of a separation agreement and equalization of net family property.

The court applied the factors for consolidation under Rule 6.01 and found that while there were common questions of fact, the balance of convenience favored allowing the civil action to proceed to a summary trial independently.

The motion to consolidate was dismissed.

This endorsement addresses two motions in a motor vehicle accident claim.

First, The Co-Operators General Insurance Company successfully moved to be added as a third party under s. 258(14) of the Insurance Act, having denied liability to its insured, the defendant driver, for failing to disclose his Uber driving activities.

Second, the plaintiff successfully moved to amend his statement of claim to increase his loss of income claim and add Uber Canada Inc. as a defendant.

The court found the plaintiff exercised reasonable diligence in discovering his claim against Uber, rejecting arguments that the claim was time-barred under the Limitations Act, 2002, but reserving Uber's right to plead a limitations defence at trial or summary judgment.

The defendants brought a motion to set aside a default judgment, noting in default, and notice of garnishment obtained by the plaintiff in a mortgage enforcement action.

The defendants' counsel had inadvertently failed to file a statement of defence.

The court found that the plaintiff's counsel engaged in sharp practice by noting the defendants in default without providing fair warning, despite knowing the defendants were represented by counsel.

Applying the Kisel factors, the court set aside the default judgment, noting in default, and notice of garnishment, and awarded costs to the defendants.

The plaintiffs brought a motion for summary judgment for deficiencies arising from the power of sale of four mortgaged properties after the defendants defaulted.

The defendants brought a cross-motion for partial summary judgment, alleging an oral agreement and equitable estoppel permitted them to pay mortgage debts from construction draws and defer payments indefinitely.

The court found no evidence of an oral agreement or equitable estoppel, noting the plaintiffs enforced their strict rights under the written mortgage terms.

The plaintiffs' motion for summary judgment was granted, and the defendants' counterclaim was dismissed.