John Lo Faso

A case management teleconference was held to schedule a motion for leave to appeal from a decision dismissing an appeal of an interlocutory order discharging a certificate of pending litigation.

The court set a timetable for the written motion to proceed before a three-judge panel of the Divisional Court.

The moving party also indicated an intention to move for a stay, and the court directed the parties to attempt to agree on interim terms to avoid a stay motion, failing which an urgent case management conference could be arranged.

The appellant, 2676547 Ontario Inc., appealed a Master's decision to discharge a certificate of pending litigation (CPL) related to a breach of an agreement of purchase and sale for land.

The Master had found that the appellant failed to make full disclosure during the ex parte CPL application, that the land was not unique, and that the balance of equities favored discharging the CPL, especially given the delay and the respondents' ongoing construction.

The Superior Court, applying a standard of review for appeals from a Master's decision (palpable and overriding error for facts/discretion, correctness for law), found no legal error or palpable and overriding error in the Master's findings regarding credibility, the nature of the property sale, notice to the respondents, construction costs, uniqueness of the property, or the appellant's failure to make full and fair disclosure.

The appeal was dismissed, and costs were awarded to the respondents.

Following a previous ruling referring their dispute over a failed new home purchase to arbitration, the parties were unable to agree on an arbitrator.

The moving parties brought a motion in writing to have the court appoint their preferred candidate, Mr. Richler, citing his lower fees and capped costs.

The responding party failed to respond to the motion.

The court exercised its power under section 10 of the Arbitration Act to appoint Mr. Richler, conditional on his continued willingness to accept the appointment.

The applicant, Zeifman Partners Inc., sought declarations that payments made by a now-bankrupt company (Discovery Electric Ontario Limited) to its principal's family and a related company (Tuscany Lighting and Furniture Ltd.) were transfers at undervalue, and payments to a third-party supplier (Boz Electric Supply Ltd.) were preferential.

The court found the payments to the Baldassare family members and Tuscany were void under s. 96(1)(b) of the Bankruptcy and Insolvency Act (BIA), and the principal, Sam Baldassare, was held personally liable for these amounts.

The court dismissed the claim against Boz Electric Supply Ltd., finding those payments were made in the ordinary course of business, thereby rebutting the presumption of preference under s. 95(2) of the BIA.

A limitation period defence raised by all respondents was rejected, as the initiation of a Preference Motion was deemed the commencement of proceedings for the purposes of the Limitations Act, 2002.

The plaintiff appealed a Master's decision discharging a certificate of pending litigation (CPL) related to a breach of an agreement of purchase and sale for land.

The Master found issues with the plaintiff's disclosure, the uniqueness of the land, delay, and credibility.

While the plaintiff sought an urgent appeal hearing, the parties had previously agreed to a stay preventing the property's sale or transfer pending the appeal.

The court determined that, due to this agreement and the ongoing COVID-19 pandemic restrictions, the appeal was not time-sensitive or urgent, and therefore would not be scheduled immediately but would be spoken to on June 1, 2020.

The defendants Tavasys Telecom Inc. and Danny Tavares brought a motion to set aside a Certificate of Pending Litigation (CPL) registered against their property by the plaintiff 2676547 Ontario Inc. The CPL was initially obtained ex parte.

The court considered the plaintiff's lack of full disclosure, delay in asserting rights, its nature as a shell corporation without assets, and the moving defendants' status as bona fide third-party purchasers without actual notice of a prior sale.

Balancing the equities and applying the Dhunna Factors, the court found in favor of the moving defendants, granting the motion to discharge the CPL.

The appellants moved for an urgent stay pending appeal of an order directing an election for a new board of directors of a religious congregation.

The court applied the three-part test for a stay pending appeal.

Finding that the appeal lacked merit, that there was no irreparable harm, and that the balance of convenience favoured restoring member democracy, the court dismissed the motion for a stay.

The applicant sought an urgent interlocutory injunction or leave to issue a Certificate of Pending Litigation (CPL) to prevent the respondents from selling or encumbering a jointly owned commercial property.

The parties were in a joint venture that had deteriorated, leading to a mortgage default.

The respondents acquired the mortgage debt through a related company and intended to sell the property under power of sale.

The court dismissed the motion, finding that the dispute was fundamentally about money and realizing on an investment, not a unique interest in land, and that damages would be an adequate remedy.

The applicants sought a declaration that they were entitled to $400,000 in deposits from a failed real estate transaction after the respondent purchaser repeatedly failed to close and sought multiple adjournments.

The court denied the respondent's last-minute adjournment request, found the respondent in breach of the Agreement of Purchase and Sale, and declared the applicants entitled to the full deposit amount, noting it was not disproportionate or unconscionable given the circumstances and extensions granted.

The appellant appealed a Superior Court decision dismissing his application arising from a failed agreement of purchase and sale.

The appellant argued the application judge erred in virtually all of her conclusions.

The Court of Appeal found no merit in any of the appeal grounds.

The court upheld the application judge's findings that the respondent had standing to sue, that the appellant was required to pay the second deposit, that the respondent did not breach the agreement by failing to provide the original survey and clear title, that the respondent's failure to discharge an existing mortgage before the appellant's demand letter did not constitute a breach, and that the appellant's letter constituted anticipatory breach which the respondent properly terminated.

The appeal was dismissed with costs awarded to the respondent.

This decision addresses costs following the dismissal of two consolidated motions to disqualify counsel, Mr. Suvendu Goswami, for alleged conflicts of interest.

The court had initially recommended substantial indemnity costs but invited an apology from the applicants' lawyers and a request for partial indemnity.

Despite one lawyer's "paltry apology" and the other's refusal, the court ultimately awarded partial indemnity costs, acknowledging Mr. Goswami's acceptance of the apology.

The court also clarified that the two groups of applicants were complicit in the conduct justifying a punitive costs award, but the final award was based on normal principles due to the apology's acceptance.

The plaintiff brought a motion to compel the defendant to answer certain questions refused during examination for discovery, primarily concerning solicitor-client privilege.

The core issue was whether the defendant had waived privilege by pleading a lack of awareness or understanding regarding a real estate waiver he signed, thereby putting the legal advice he did or did not receive into issue.

The court found that the defendant had impliedly waived privilege by making his knowledge and understanding of the waiver a material element of his defence.

Consequently, the defendant was ordered to answer one specific question related to legal advice received *before* signing the waiver and to request relevant cell phone records for a limited period.

The motion was dismissed for other questions deemed unrelated to the specific period of implied waiver.

The plaintiff estate sought leave to amend its statement of claim to add specific statutory particulars, including sections of the Statute of Frauds and other legislation, to support its claim for an interest in property.

The defendants opposed, arguing the amendments constituted new claims barred by a limitation period.

The court granted the motion, holding that the proposed amendments merely particularized existing factual allegations and did not introduce new causes of action, thus not being statute-barred.

The Court of Appeal remitted an application to the Superior Court to determine damages and costs after finding the purchaser breached an agreement of purchase and sale.

The sellers claimed damages for the difference in resale price and carrying costs, and sought costs on a substantial indemnity scale.

The court found the purchaser failed to prove the sellers did not mitigate damages.

Damages were awarded for the price difference and most carrying costs, less the deposit.

Costs were awarded to the sellers on a partial indemnity scale until their offer to settle, and substantial indemnity thereafter, with a reduction for counsel's conduct during cross-examination.

The moving defendants sought an order for security for costs against the Estate of Gaetano Lo Faso under Rule 56.01(1)(d), arguing the Estate was a nominal plaintiff due to its status as a section 38 plaintiff under the Bankruptcy and Insolvency Act and its lack of assets.

The court dismissed the motion, finding that the Estate, as the sole judgment creditor pursuing a claim assigned by the trustee, had a substantial interest in the litigation and was not a nominal plaintiff.

The court also considered access to justice, noting that denying the Estate the right to litigate due to lack of assets would be unjust.

The applicant (seller) sought declarations that an Agreement of Purchase and Sale (APS) was binding, that the respondent (buyer) breached it by failing to pay a second deposit and through anticipatory repudiation, and sought damages and forfeiture of the initial deposit.

The buyer argued lack of standing, multiplicity of proceedings, and seller's breaches (survey, mortgage discharge).

The court found the applicant had standing, dismissed the multiplicity argument, and concluded the buyer breached the APS through non-payment of deposit and anticipatory repudiation.

The initial deposit was forfeited to the seller, and the issue of quantifying further damages was ordered to proceed to trial and be consolidated with a related action.

The application against the brokerage was dismissed.

The applicants sought the partition and sale of two industrial properties owned by corporations in which they held shares, following a breakdown in the business relationship with the respondents.

The respondents argued that the applicants had no interest in the land because the properties were owned by the corporations.

The court dismissed the application, holding that shareholders do not have a possessory interest in property owned by a corporation, and therefore the applicants had no prima facie right to partition under the Partition Act.

The appellants (sellers) appealed a decision granting the respondent (purchaser) rescission of an agreement of purchase and sale and return of the deposit.

The dispute concerned the interpretation of an illegal substances clause in a standard form Ontario Real Estate Association/Toronto Real Estate Board Agreement of Purchase and Sale.

The purchaser discovered after execution that the property had previously been used as a marijuana grow-operation and sought to terminate the agreement.

The application judge found the sellers had breached their representation and warranty in the clause.

The Court of Appeal reversed, holding that the sellers' representation and warranty regarding the property's prior use was limited to their knowledge and belief as it existed at the time of execution of the agreement, not at closing.

Since the sellers did not know about the prior use at execution, no breach occurred.

Following the successful application by the purchaser to rescind an agreement of purchase and sale due to the property's history as a marijuana grow-op, the purchaser sought costs of $30,000 on a partial indemnity scale.

The vendors argued no costs should be awarded due to unproven allegations of recklessness and procedural delays by the purchaser's counsel.

The court rejected the argument to deny costs entirely but reduced the quantum, finding some time spent by the purchaser's counsel was beyond the reasonable expectations of the unsuccessful parties.

Costs were fixed at $26,436.43.

The sellers of a residential property represented in the agreement of purchase and sale (APS) that, to the best of their knowledge, the property had never been used for the growth or manufacture of illegal substances.

Before closing, the purchaser discovered the property had previously housed a marijuana grow operation in 2004, a fact unknown to the sellers when the APS was made.

The purchaser refused to close and sought rescission and return of deposit, while the sellers sought declarations that the APS was binding and damages for breach.

The court found the "illegal substances clause" to be a material representation that induced the purchaser to enter the APS.

Upon learning the property's history, the sellers' representation became untrue, triggering a duty to disclose.

The court held that the purchaser was entitled to rescission, declaring the APS void ab initio, and ordered the return of the deposit.

The sellers' application was dismissed, and the purchaser's claim for damages was allowed to proceed as an action.