Jonathan Dushyendra Kulathungam

The plaintiff brought an urgent motion under Rule 45.02 of the Rules of Civil Procedure seeking an order preserving a specific fund by requiring the defendants to pay into court the anticipated proceeds of sale of a commercial property, or a portion thereof, pending determination of outstanding damage claims arising from a failed closing under an agreement of purchase and sale.

The court reviewed the governing test requiring a proprietary claim to a reasonably identifiable fund, a serious issue to be tried, and a balance of convenience favouring the order.

The court held that the plaintiff’s claim was for unproven damages, including an alleged abatement of the purchase price and lost profits, rather than a proprietary interest in the sale proceeds.

As the plaintiff failed to establish a legal right to a specific fund as required by Rule 45.02, the motion was dismissed without consideration of the remaining elements of the test.

The appellants, vendors of a property, appealed a decision granting partial summary judgment and specific performance to the respondent purchasers.

The transaction failed to close on the extended closing date because the appellants had not provided required documents.

The motion judge found that the 'time is of the essence' clause had been waived and that the appellants were not ready to close.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's factual findings or her conclusion that there were no genuine issues requiring a trial, noting that the Supreme Court's decision in Hryniak supported the expeditious resolution.

Costs decision following motions for a certificate of pending litigation (CPL) and for partial summary judgment in a real estate dispute.

The plaintiffs sought costs on a substantial indemnity basis based on an earlier offer to settle.

The court held the plaintiffs were entitled to costs for both motions due to their success but declined to award substantial indemnity costs for the CPL motion because the offer to settle was made after that motion was determined.

However, substantial indemnity costs were awarded for the partial summary judgment motion because the plaintiffs had made a reasonable settlement offer that, if accepted, would have resolved the litigation.

The court fixed costs at $55,000 plus HST and disbursements.

The plaintiffs brought a motion for partial summary judgment seeking specific performance of an agreement of purchase and sale for a commercial property.

The transaction failed to close on the agreed-upon date of August 3, 2012.

The court found that the parties had waived the 'time of the essence' provision by their conduct.

Furthermore, the defendants were not ready, willing, and able to close on that date and therefore could not rely on the provision to terminate the agreement.

The court granted partial summary judgment and ordered specific performance.

The appellant defendants appealed an order dismissing their motion to compel the corporate plaintiffs to post security for costs.

The motion judge had dismissed the motion on the basis that the defendants had filed a counterclaim closely related to the main action.

The Divisional Court allowed the appeal, holding that while a counterclaim may be relevant when seeking security for costs against a plaintiff by counterclaim, it does not insulate an initiating plaintiff in the main action from posting security for costs.

The corporate plaintiffs were ordered to post $20,000 in security for costs.

The appellants appealed a Master's decision that dismissed their motion to amend their statement of defence and granted the respondent's cross-motion for judgment based on minutes of settlement.

The Divisional Court allowed the appeal, finding that the Master erred by hearing the final cross-motion before the interlocutory motion to amend.

The Court also held that the Master applied the incorrect test under Rule 26 by reversing the onus, as the opposing party must prove non-compensable prejudice to defeat a motion to amend.

The Court of Appeal for Ontario issued a costs endorsement following the appellants' substantial success on appeal.

The court determined the appropriate quantum of costs to be awarded.

Costs were fixed and awarded to the appellants in the amount of $10,000, inclusive of GST and disbursements.

The respondent was sexually assaulted by an ultrasound technician at a private clinic.

The technician performed unauthorized tests and surreptitiously videotaped her.

At trial, a jury found the clinic negligent and vicariously liable, awarding substantial damages.

On appeal, the Court of Appeal set aside the finding of negligence against the clinic, concluding it was plainly unreasonable.

However, the Court upheld the finding of vicarious liability, determining that the clinic's enterprise materially increased the risk of the assault.

The Court also significantly reduced the general and aggravated damages from $175,000 to $25,000, finding the jury's award excessive.

The defendants sought leave to appeal an interlocutory costs order that denied them costs despite being successful on a motion for an interlocutory injunction.

The motions judge had denied costs on the basis that counsel intentionally underestimated the length of the motion to get on the list.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the decision as it extended previous case law by denying costs to successful parties who had not misled the judge hearing the motion.

The court also found that the appropriate use of cost sanctions for time misestimates is an issue of public importance.

The interveners appealed a trial judgment concerning a dispute over the assets of The Holy Virgin Church.

The Court of Appeal upheld the trial judge's finding that proposed by-law amendments were governed by the approval requirements in the Normal Parish By-laws, noting that the dispute was fundamentally religious and outside the court's purview.

However, the Court allowed the appeal in part, finding that the trial judge improperly exercised his discretion under s. 106 of the Canada Corporations Act to order a meeting, as the power struggle between factions did not constitute extraordinary circumstances making a meeting impracticable.

The appellant sought specific performance of an agreement with an abatement equivalent to damages caused by the respondents' alleged breach of a promise of confidentiality.

The Court of Appeal upheld the motions judge's conclusion that the promise was collateral to the agreement and that specific performance with an abatement is not available in these circumstances.

The appeal was dismissed.