John R. Hart

The Applicant, a mortgagee, sought to vary a previously consented receivership order concerning three properties (Harwood Properties) in Ajax.

The original order, which appointed a receiver, included provisions requiring consultation with the Town of Ajax on sales and a new development agreement with a right of re-purchase for the Town.

These terms were agreed upon in exchange for the Town's consent to the receivership and a stay of its own action regarding a re-purchase right and priority dispute.

The Applicant argued that changed circumstances, specifically the unacceptability of the development agreement terms to potential purchasers, justified varying the order and determining the priority of its mortgage over the Town's re-purchase right.

The court dismissed the motion, emphasizing the finality of consent orders and that the Applicant had agreed to the terms, which resolved a pending priority dispute.

The court found no misrepresentation by the Town that would vitiate the Applicant's consent and held that the comeback clause should not be used to prejudice parties who relied on the original order.

This decision from the Court of Appeal for Ontario addresses three related matters.

The first involved an appeal in Blanchard v. Georgina (Town), where the panel considered a motion to review a security for costs order and an ex parte motion by the Town of Georgina to dismiss the appeal for non-payment of security.

The second matter concerned a proposed appeal in Grand Chief v. Phillips et al, specifically a review of an order denying an extension of time to file a notice of appeal.

The third matter was a general review of a prior order by Thorburn J.A. The court dismissed the request for an adjournment and allowed a non-lawyer spokesperson to represent one of the parties.

The court found no basis to stay or consolidate the appeals based on aboriginal land claims.

The Georgina appeal was dismissed due to non-compliance with the security for costs order, and the review of the denial of extension of time for the Grand Chief v. Phillips appeal was also dismissed, with costs awarded against the unsuccessful parties in both instances.

The appellants (Bolenders) appealed a trial judgment that largely prohibited their peat moss extraction, triple mix compilation, and waste receipt activities on their rural-zoned properties, and found breaches of a site alteration by-law.

The trial judge had found these activities were not legal non-conforming uses, except for the open storage of heavy equipment.

The Court of Appeal dismissed the appeal, upholding most of the trial judge's orders, including the injunction requiring future compliance with the site alteration by-law.

However, the court set aside one paragraph of the trial order (para. 4) on consent, which had declared a breach of the 2017 by-law, due to lack of evidence of a breach in that specific year.

The court affirmed the trial judge's finding that the activities were not legal non-conforming uses and that the injunction was not retroactive.

The appellants sought to develop land pursuant to an amended development agreement with the Town of Ajax.

The agreement contained repurchase terms that could be invoked if the developer failed to take reasonable steps to proceed with construction by a specified deadline, provided it was not awaiting comments or confirmation of approval on any application from the Town.

The Town terminated the agreement and exercised its repurchase rights, claiming the developer's revised site plan application was incomplete and the construction deadline had passed.

The trial judge found in favour of the Town.

On appeal, the appellants argued the trial judge erred in failing to apply the Planning Act's definition of a complete site plan and in conflating completeness with readiness for approval.

The Court of Appeal upheld the trial judgment, finding the site plan application was incomplete as a matter of contract interpretation because the developer had not submitted all requested materials and was not awaiting Town approval but rather the Town was awaiting responses from the developer.

The plaintiffs, Central Park Ajax 1 Developments Phase 1 Inc. and LeMine Real Estate Consulting Inc., brought a claim for $300 million in damages and declaratory relief against The Corporation of the Town of Ajax and Rob Ford, alleging breach of contract, defamation, and unlawful interference.

The core dispute revolved around the Town's right to repurchase development lands due to the plaintiffs' alleged failure to commence construction by a contractual deadline.

The court was asked to determine two key issues: (1) whether LeMine was awaiting approval for a site plan application from the Town on or prior to July 17, 2017, which would invalidate the repurchase notice, and (2) if not, whether the Town had the right to repurchase the lands due to LeMine's failure to start construction by July 16, 2017.

The court found that LeMine had not submitted a complete site plan application sufficient for council consideration and was therefore not "awaiting confirmation of approval." Furthermore, the court interpreted the development agreement, considering both intrinsic and extrinsic evidence, to conclude that LeMine was contractually obliged to commence construction by July 15, 2017, and failed to do so.

Consequently, the Town's repurchase notice was deemed valid, and the plaintiffs' claims were dismissed on these issues.

The applicants sought an order of mandamus to compel the Town of Georgina to approve a fill application and issue a permit.

The court reviewed the requirements for mandamus and the parties' positions on the standard of review and municipal discretion.

Ultimately, the court raised a jurisdictional issue, noting that under section 6(1) of the Judicial Review Procedure Act, applications for relief in the nature of mandamus must generally be brought in the Divisional Court.

The court granted the parties 60 days to make submissions on jurisdiction, failing which the application would be dismissed.

The appellants appealed the dismissal of their action for damages arising from a municipal tendering process and termination of an agreement of purchase and sale.

The trial judge found that while the respondent Town breached its tendering process by accepting a non-compliant bid, the appellants failed to demonstrate they would have been awarded the contract.

The appellants did not meet their burden of proving on a balance of probabilities that the contract would have been awarded to them, as the trial judge found it more probable the Town would have re-tendered.

The Court of Appeal upheld the trial judge's decision, finding it was open to the Town to reject all bids and re-tender with different specifications.

The agreement of purchase and sale was also properly terminated in good faith for legitimate business reasons.

This motion addressed a dispute arising from a 2014 settlement concerning the care and property management of an elderly woman, Deolinda De Melo, who was found incapable of managing her property due to Alzheimer's disease.

The applicant, Maria Melo-Avelino (daughter), sought to declare the settlement void or set it aside due to alleged breaches and to be appointed attorney under 2011 powers of attorney.

The respondent, Carlos De Melo (son), opposed this.

The court terminated the settlement agreement and the associated trust, revived a 2014 order directing the validity of competing powers of attorney to trial, and provided interim directions regarding property protection and access, while declining to require a formal accounting from Carlos at this stage.

The plaintiffs sued the Town of Orangeville for breach of contract related to a biosolids disposal tender and an agreement of purchase and sale for a storage facility.

The court found the Town breached "Contract A" by accepting a non-compliant tender bid from a third party (Entec) but dismissed the plaintiffs' claim for lost profits (Contract B) because they failed to prove they would have been awarded the contract.

The court also found the Town validly exercised a termination clause in the Agreement of Purchase and Sale, dismissing the plaintiffs' claim for damages related to the property sale.

The Town's counterclaim for the return of the deposit was granted.

Following a trial where the plaintiff obtained judgment on a promissory note and successfully defended a counterclaim alleging fraud, the court determined costs.

The plaintiff and its principal were awarded substantial indemnity costs of $115,530.26 because the plaintiff beat its Rule 49 offer to settle and the defendants made unfounded, seriously prejudicial allegations of fraud.

The third-party real estate broker and his brokerage, who also successfully defended the counterclaim, were awarded partial indemnity costs of $60,047.28, as there was no clear finding of reprehensible conduct against them to justify elevated costs.

The plaintiff, a judgment creditor, brought an action for oppression and fraudulent conveyance against the corporate debtor, a newly formed successor corporation, and their sole director.

The director had transferred the debtor's business and assets to the new corporation to avoid paying a Wisconsin judgment and an Ontario costs order.

The court found the conduct oppressive and the transfer a fraudulent conveyance, piercing the corporate veil to hold the director personally liable alongside the successor corporation for the judgment debt.

Following a successful defence motion for summary judgment dismissing a claim for delay, the defendants sought substantial indemnity costs exceeding $42,000.

The court accepted that elevated costs were justified due to the plaintiff’s nearly twenty‑year failure to advance the litigation.

However, the court found the defendants’ bill of costs inadequately detailed and the claimed amount excessive.

Balancing the plaintiff’s unexplained delay against the insufficient cost justification, the court fixed a reduced substantial indemnity award.