Jonathan Kulathungam

The plaintiff hotel owner sued the defendant condominium corporation for historical overpayments of shared electricity costs spanning 2006 to 2015.

The overpayments resulted from a conversion error in an Excel spreadsheet used to calculate the plaintiff's share.

The court found the defendant was unjustly enriched and ordered repayment of $730,058.99.

The court rejected the defendant's limitation period defence, finding the error was not reasonably discoverable until a consultant identified it in 2017.

The court also dismissed the defendant's claim for equitable set-off regarding alleged underpayments in other areas.

The applicants and respondents were shareholders in a corporation that acquired a hotel and redevelopment project.

Following a finding of oppression against the respondent, the corporation was ordered to be liquidated.

In this trial to resolve disputes over the distribution of liquidation proceeds, the respondent claimed entitlement to development fees, hotel management fees, reimbursement of expenses, and repayment of shareholder loans including advances made to a subsidiary.

The court dismissed the claims for development and management fees, finding no written agreement and a failure to comply with the disclosure requirements for self-interested contracts under s. 132 of the Business Corporations Act.

The court allowed certain business expenses while characterizing others as loan repayments, and held that it was just and equitable to include advances made to the subsidiary in the calculation of the respondent's shareholder loan.

The applicants sought to appoint a receiver over a commercial property due to an alleged default on a third mortgage.

The respondents brought a counter-application arguing the mortgage was void or unenforceable due to material alterations, lack of independent legal advice, and unconscionability.

The court found the mortgage valid and enforceable, rejecting the respondents' arguments.

However, the court disallowed several fees claimed by the applicants, determining the actual amount secured by the mortgage.

Finding sufficient equity in the property to satisfy the debt, the court dismissed the application to appoint a receiver, without prejudice to future applications if the debt remains unpaid.

The plaintiff purchaser brought a motion for leave to issue a certificate of pending litigation (CPL) against a commercial property after an aborted real estate transaction.

The defendants argued the plaintiff failed to close on the agreed-upon date and did not secure the required mortgage assumption.

The court found triable issues existed regarding whether time remained of the essence following multiple extensions and whether the mortgage assumption would have been approved.

Balancing the equities, the court granted the CPL, noting the property's uniqueness to the plaintiff's development plan and that damages would not be a satisfactory remedy.

The applicant landlord sought a declaration regarding its rights under a commercial condominium declaration after its tenant, a dentist, purchased an adjacent unit and purported to transfer the exclusive use designation for a dental clinic to the new unit.

The court applied the nemo dat principle, holding that the tenant could only consent to the transfer of the exclusive use for the remaining duration of his lease, protecting the landlord's premium-paid exclusivity.

The franchisee applied to rescind a franchise agreement under s. 6(2) of the Arthur Wishart Act, alleging material deficiencies in the franchisor's disclosure document.

The court found that the franchisor failed to disclose complete financial statements, the absence of a head lease, a negotiated agreement to lease, and the fact that the location was the franchise's first non-mall setting.

These omissions effectively deprived the franchisee of the opportunity to make an informed investment decision, amounting to a failure to provide a disclosure document.

The application was allowed, the rescission was declared valid, and the franchisor and its associate were ordered to pay $306,581 in statutory compensation, with the franchisee's loss of income claim referred to a master.

Following the settlement of an urgent application for relief from forfeiture arising from a commercial lease dispute during the COVID-19 pandemic, the court determined the entitlement to costs.

The landlord sought to rely on a lease provision granting it substantial indemnity costs for tenant defaults.

The court declined to enforce the contractual costs provision, finding the landlord acted precipitously in attempting to lock out the tenant who had sought accommodation for pandemic-related financial strain.

The applicant tenant was awarded partial indemnity costs of $43,049.10, to be set off against deferred rent payments.

The plaintiff condominium corporation brought a motion for summary judgment against the defendant owner for unpaid common element maintenance fees, interest, and additional claimed expenses.

The parties settled the principal amount of the arrears.

The court enforced the condominium by-law's contractual interest rate of 30% above prime, finding no reason to grant relief from it.

However, the court dismissed the plaintiff's claim for additional collection expenses, finding they were not authorized by the by-laws and were subsumed by the high interest rate.

Costs were awarded to the plaintiff in the amount of $30,000.

The plaintiffs sought costs on a full, substantial, or partial indemnity basis following a motion to compel the defendants to comply with undertakings.

The defendants argued the motion was brought to delay discovery.

The court noted the defendants had the power to expedite discovery by complying with undertakings and court orders, which they failed to do.

Costs were awarded to the plaintiffs on a substantial indemnity basis in the amount of $94,468.81.

The plaintiffs brought a motion seeking leave to amend their statement of claim and an order compelling the defendants to answer outstanding undertakings and refusals from examinations for discovery.

The action involves allegations that the defendants, former employees, misappropriated the plaintiffs' business.

The court ordered the defendants to produce a personal computer and bank statements, finding them relevant to the alleged misappropriation and destruction of original invoices.

The court also ordered the defendants to produce a further and better affidavit of documents, including financial records in native format.

The plaintiffs were granted leave to amend their claim to add the tort of deceit and a claim for equitable set-off regarding an Employment Standards Officer's wage order, with the court declining to apply issue estoppel to prevent the set-off claim.

The defendants' request for case management was dismissed.

The plaintiffs brought a motion to strike the defendants' pleadings or, in the alternative, to compel answers to undertakings and for security for costs.

The action involved a $90 million real estate development dispute.

The court found that the individual defendant had repeatedly failed to answer hundreds of undertakings from his discovery and had breached multiple court orders, causing significant delay.

Although the plaintiffs withdrew their request to strike the pleadings, the court ordered the defendant to pay $100,000 into court as security for costs to enforce its processes against a wealthy party who abused the court system.

This is a costs decision following the successful summary judgment motions of the defendants and third parties in a slip and fall action.

The plaintiff argued that costs should be reduced due to his impecuniosity.

The court rejected this argument, noting that a plaintiff suing for a substantial sum must expect to pay costs if unsuccessful.

The court fixed the costs payable by the plaintiff to the defendants, and the costs payable by the defendant to the third parties, on a partial indemnity basis.

The moving party brought a motion under Rule 59.06 of the Rules of Civil Procedure seeking to set aside or vary a prior consent order requiring her to vacate a property by a specified date.

She argued the responding parties had failed to comply with disclosure obligations, that the consent order should be interpreted alongside earlier family law orders, and that circumstances had materially changed.

The court reviewed the principles governing the finality of settlements and consent judgments and held that such orders may only be set aside for limited grounds such as fraud, misrepresentation, common mistake, or a material change in circumstances.

The evidence did not establish any of these grounds.

The court concluded the consent order was clear, voluntarily agreed to after negotiations, and remained binding.

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 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.