Jonathan F. Lancaster

The parties appeared at a case conference to settle a draft Order arising from previous Reasons for Decision.

The plaintiff advised the court of its intention to discontinue the proceeding and make a voluntary assignment into bankruptcy.

The draft Order, including costs, was settled and signed by the court.

The tenant brought an urgent motion seeking relief from forfeiture after the landlord terminated a commercial lease and re-entered the premises due to substantial rent arrears.

The tenant had ceased paying rent for several months and significant arrears had accumulated, though the tenant alleged the premises had serious deficiencies and that the parties had been engaged in ongoing lease renegotiations.

The court applied the equitable principles governing relief from forfeiture under the Commercial Tenancies Act and Courts of Justice Act, considering the tenant’s conduct, the gravity of the breach, and the surrounding circumstances.

Although the tenant’s failure to pay rent weighed against relief, the court granted interim relief from forfeiture on strict terms requiring substantial payment of rent arrears and ongoing compliance with the lease.

The matter was adjourned for further determination on whether the relief should continue on an interlocutory basis pending trial.

The appellant, Landform Canada Construction Ltd., appealed a Master's decision holding that funds received under a 2012 Settlement Agreement were impressed with a trust in favour of the respondent, Aluma Systems Inc., and other lien claimants of the same class.

Landform argued that Aluma had contracted out of its statutory lien rights.

The Divisional Court dismissed the appeal, finding that Aluma had only contracted out of its lien rights in connection with specific 2012 amounts and had explicitly reserved its rights to pursue claims for subsequent work and scaffolding supply.

A subsequent lien claimant brought a motion to vary an interim report that directed the distribution of trust funds to original lien claimants.

The moving party sought to attach funds payable to its contractor to satisfy its own subsequent liens.

The court declined to vary the interim report, finding that the settlement agreement among the original lien claimants was valid.

However, the court ordered that the funds received by the contractor be impressed with a trust in favour of the moving party and other subtrades, and directed the contractor to pay 10% of the received funds to the moving party pursuant to a prior agreement.

The appellant sold his minority interest in two businesses and entered into agreements containing non-competition, non-solicitation, and confidentiality covenants.

The duration of the non-competition and non-solicitation covenants was tied to the period he held an indirect interest in the businesses, which could only be disposed of with the consent of third-party lenders and the board.

The Court of Appeal held that the duration of these covenants was unreasonable and unenforceable because it depended on the unpredictable consents of unascertainable third parties, creating an indeterminate period with no fixed outside limit.

The confidentiality provision, however, was upheld as reasonable.

The applicant sought a declaration that non-competition, non-solicitation, and confidentiality agreements he signed with the respondents were unenforceable as an illegal restraint of trade.

The court found that the covenants were connected to a commercial sale transaction rather than just an employment contract, and therefore subject to a less rigorous standard of reasonableness.

The court concluded that the covenants were unambiguous, protected a legitimate business interest, and were reasonable in their scope, territory, and duration.

The application was dismissed.

The appellant sued the respondents for unlawful interference with economic relations, alleging that the respondents' bundling of accounting and TPA services contravened the Rules of Professional Conduct of the Institute of Chartered Accountants of Ontario.

The action was dismissed on summary judgment as statute-barred.

On appeal, the appellant argued the limitation period did not begin until the Professional Conduct Committee issued its disposition on the appellant's complaint.

The Court of Appeal dismissed the appeal, finding that the appellant knew sufficient material facts to base its allegations well before the committee's disposition, and the discovery of the committee's opinion did not restart the limitation period.

The appellant appealed a judgment regarding the interpretation of a Quit Claim deed.

The Court of Appeal upheld the application judge's finding that the Quit Claim deed was clear, unambiguous, and determinative, rejecting the argument that its meaning required reference to other documents.

The appeal was dismissed, and leave to appeal the substantial costs order was denied.

The applicant brought a motion for leave to appeal, which was dismissed.

The respondent sought costs of the motion on a partial indemnity scale.

The self-represented applicant opposed the costs, arguing they should be reserved to the trial judge and claiming protection under section 15 of the Charter.

The court found the Charter inapplicable to costs orders and fixed the respondent's costs at $2,832.38, payable out of the applicant's interest in the estate upon final distribution.

The self-represented applicant moved for leave to appeal an interim order that found she had waived solicitor-client privilege by putting her former counsel's advice and conduct in issue in her motion to set aside an estate settlement.

The Divisional Court dismissed the motion for leave, finding no good reason to doubt the correctness of the motion judge's order and that the proposed appeal did not involve matters of such importance to warrant leave.

In a CCAA proceeding, the appellant purchased the debtor's assets, including a spray booth, pursuant to a vesting order.

When the appellant attempted to remove the equipment, the landlord claimed ownership under the lease.

The motion judge ruled in favour of the landlord, finding the debtor had no title to transfer.

The Court of Appeal allowed the appeal, holding that the motion judge's decision created two inconsistent court orders and constituted an impermissible collateral attack on the vesting order, which had not been set aside or varied.

The appellants appealed the dismissal of their application for a declaration that they had obtained an easement or covenant entitling them to domestic water from a well on the respondents' property.

The Court of Appeal upheld the trial judge's finding that the obligation to supply water was a positive covenant requiring the expenditure of money and the doing of acts, which does not run with the land.

The court also rejected the argument that a binding perpetual contract existed between the parties.

The appeal was dismissed with costs.

The appellant appealed an order striking paragraphs in its statement of claim that alleged three statements (website, faxed, and oral) were defamatory.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the impugned remarks, taken in context, were not capable of bearing the defamatory meanings alleged by reasonable persons of ordinary intelligence.

The appellant appealed a trial judgment interpreting a deed and finding him liable for trespass.

The Court of Appeal upheld the trial judge's conclusion that a clause granting limited use of facilities to the original grantee and her guests did not extend to heirs and assigns, as it was a stand-alone provision distinct from the unconditional right of way.

The Court also upheld the finding of trespass regarding the appellant's use of the facilities for a large reunion.

On consent, the judgment was varied to correct an inadvertent error regarding the appellant's two access easements.

The appeal was otherwise dismissed.

The appellant bank sued several financial institutions and insurers for approximately $100 million arising from a massive equipment leasing fraud involving forged endorsements.

The respondent financial institutions successfully moved for summary judgment dismissing the appellant's claims for negligence, unjust enrichment, and money had and received.

The Court of Appeal allowed the appeal and set aside the summary judgment, finding that the motion judge committed two fundamental errors: reversing the onus by requiring the responding party to establish a genuine issue for trial, and deciding the motions on the assumed fact that the endorsements were forged.

The Court ordered the entire action to proceed to trial, noting that novel claims should be decided on a full evidentiary record.

The moving parties, several banks and a financial institution, sought leave to appeal a motions judge's refusal to grant summary judgment dismissing the plaintiff's claims in conversion and preclusion.

The underlying action involved a fraudulent scheme where a customer forged endorsements on cheques and bank drafts, deposited them with the plaintiff collecting bank, and the moving parties subsequently reverse-cleared the instruments.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision that the conversion and preclusion claims raised genuine issues for trial, and noting the issues were of general importance to the banking industry.

The applicants sought leave to appeal an interim order that imposed strict terms on an adjournment, including paying $20,000 into court as security for damages and filing an undertaking.

The applicants argued the motions judge erred in exercising his discretion.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the order and that the issues were strictly between the parties and not of general importance.

The appellant payroll provider paid the wages of the corporate respondent's employees without first receiving sufficient funds from the corporation.

The appellant sued a director of the corporation for unjust enrichment, arguing that its payment relieved the director of her statutory liability for unpaid wages under s. 131 of the OBCA.

The Court of Appeal dismissed the appeal, holding that the primary obligation to pay wages belonged to the corporation, not the director.

The director received no direct benefit and was not unjustly enriched.

Furthermore, the appellant could not be subrogated to the employees' rights because the employees had been paid and had no claim against the director.

The appellants challenged a declaration concerning the expiry of a registered right of first refusal over real property.

The Court of Appeal held that a right of first refusal is initially a personal contractual right, but converts into an equitable option when the owner receives an acceptable offer.

Once the appellants learned of the 1988 sale made in breach of that right, they were required to pursue specific performance promptly if they wished to preserve their equitable interest.

Their ten-year inaction, coupled with evidence of waiver, extinguished any equitable interest before the later purchaser acquired rights under the 1998 agreement of purchase and sale.

The appeal was dismissed, with no costs.