Jonathan Barr

The plaintiff builder brought a summary judgment motion against the defendant purchasers for breach of an Agreement of Purchase and Sale (APS) after the defendants failed to close on a pre-built home.

The defendants argued the APS was frustrated by a decline in the real estate market which prevented them from obtaining financing.

The court found the defendants breached the APS, holding that a market decline does not constitute frustration of contract.

The court awarded damages for the loss in property value, carrying costs, and increased real estate commission fees, but declined to enforce a 15% interest provision in the APS, finding it surprisingly onerous and unenforceable.

In additional reasons following a summary judgment motion regarding a commercial lease dispute, the court determined the quantum of damages owed to the plaintiff landlord.

The court denied the plaintiff's motion to amend its pleadings to claim a higher pre-judgment interest rate, finding it would cause non-compensable prejudice as the request came after the summary judgment decision.

The court also reduced the plaintiff's claim for future rent after discovering the plaintiff had failed to disclose that the property was sold and demolished, terminating the rent obligation on the date a letter of intent for the sale was signed.

The plaintiff was awarded $199,136.01 in total damages for future rent and additional rent.

The plaintiff landlord brought a motion for summary judgment seeking a declaration of entitlement to $288,000 held in trust under a Termination Agreement and damages for unpaid rent.

The court found that the defendant tenant was entitled to the $288,000 held in trust, as it was consideration for giving up its rights to a long-term lease.

The court also found the tenant liable for arrears of Additional Rent and future rent following the termination of the lease for non-payment, but could not determine the quantum of damages on the current record, particularly given the recent demolition of the property.

The court ordered the funds to remain in trust pending a final determination of the set-off amount.

The parties could not agree on the terms of a formal order following a previous endorsement.

The court resolved the disputes over the competing draft orders, deciding to include a reference to the Investigative Receiver's Interim Report, declining to add a preamble regarding an undertaking as to damages, and including a paragraph explicitly dismissing the defendant's motion to set aside an ex parte order for lack of full and fair disclosure.

The plaintiffs obtained an ex parte order for a Certificate of Pending Litigation, a Mareva injunction, and the appointment of an Investigative Receiver.

The defendant Bayview Creek (CIM) LP moved to set aside the injunction, arguing the plaintiffs failed to make full and fair disclosure of material facts.

The court found no material non-disclosure or lack of frankness regarding the plaintiffs' allegations of misrepresentation and breach of terms.

Due to the complex commercial interests involved, including mortgagees intending to bring enforcement proceedings, the court transferred the matter to the Commercial List and extended the interim orders.

The applicants sought a declaration that a right-of-way across their property, benefiting the respondents' adjacent properties, had been abandoned and extinguished.

The applicants argued that historical non-use, the disappearance of original sheds, and various obstructions demonstrated an intention to abandon the easement.

The court dismissed the application, finding that the respondents and their contractors had recently used the right-of-way for property renovations and that the applicants failed to prove an express or implied intention to abandon the property right.