Jonathan Preece

The applicants, 2235209 Ontario Inc. and Guy Salt, brought motions seeking interim orders including holding sale proceeds in trust, an injunction prohibiting dealings with Lot 5, a Certificate of Pending Litigation (CPL) on Lot 5, and a Mareva Order.

The motions were based on allegations of fraud regarding mortgage amounts, which the applicants claimed vitiated prior settlements where they had terminated their agreements of purchase and sale.

The court dismissed the motions, finding that the applicants failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favored granting the injunctions.

The court also noted the applicants' lack of clean hands, delay, and insufficient undertakings.

The appellant appealed a summary judgment decision in which the motion judge found that the respondent vendors breached an Agreement of Purchase and Sale by failing to deliver unencumbered title.

However, the motion judge limited damages to the deposit amount of $25,000 and refused to award damages for loss of bargain, finding that the benefit was illusory.

The Court of Appeal allowed the appeal, holding that there was a real bargain and that the appellant was entitled to damages for the difference between the agreed purchase price and the higher price eventually paid for the property, totalling $187,500.

The respondents' cross-appeal was dismissed.

The Court also addressed the costs of both the motion and the appeal.

This endorsement addresses the costs of a summary judgment motion where the plaintiff, Birchcliffe Core-Harbour Inc., was partially successful in recovering its $25,000 deposit but failed in its claim for $187,500 in loss of bargain damages.

The defendants' counterclaim was dismissed.

The defendants, Stella and Stainton Pinnock, sought substantial indemnity costs of over $95,000 or partial indemnity of over $82,000, arguing the complexity of novel legal arguments.

The plaintiff argued for no costs or a maximum of $2,475.

The court, applying Rule 57.01 factors and the principle of proportionality, found the defendants' claimed hours disproportionate to their partial success and awarded them $20,000 in fees plus $3,250 in disbursements, plus HST, to be paid by the plaintiff.

The plaintiff, Birchcliffe Core-Harbour Inc., sought summary judgment against the defendants, Stella Pinnock and Stainton Pinnock, for breach of an agreement of purchase and sale, claiming damages for loss of bargain and return of a deposit.

The defendants failed to deliver clear title due to an outstanding mortgage with substantial arrears.

The plaintiff subsequently purchased the property from the mortgagee via a power of sale.

The court found the defendants breached the agreement, entitling the plaintiff to the return of the deposit.

However, the claim for loss of bargain was dismissed, as the defendants had no equity in the property, and the "bargain" was deemed illusory.

The defendants' counterclaim for bad faith was also dismissed.

The defendants appealed a Master's decision refusing to discharge a certificate of pending litigation (CPL) on their property.

The plaintiff had commenced an action for specific performance of an agreement of purchase and sale.

The defendants argued that the plaintiff's subsequent purchase of a nearby property negated the uniqueness of their property.

The court upheld the Master's decision, finding no error of law in her assessment of uniqueness or her reliance on an affidavit from the plaintiff's ex-husband explaining the purpose of the second property.

The court concluded there remained a triable issue regarding the plaintiff's interest in the land and that the balance of convenience favoured maintaining the CPL.