Joseph Blinick

In the receivership of the Stateview entities, Tarion Warranty Corporation brought a motion seeking declaratory relief on behalf of purchasers who had paid deposits for pre-construction homes.

Tarion argued that the deposits were subject to an express or constructive trust and sought a remedial constructive trust to elevate the purchasers' priority.

The court dismissed the motion, finding that the purchasers had contractually subordinated their interests to secured lenders.

While an express trust existed for contracts with early termination provisions, the funds were not segregated.

The court declined to impose a remedial constructive trust, as doing so would improperly upset the priority scheme under the Bankruptcy and Insolvency Act.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

Following the dismissal of the applicants' application for a declaration regarding a licensing agreement, the successful respondent sought costs of $97,696.78 on a partial indemnity basis.

The applicants argued the costs were excessive and suggested $65,000.

The court rejected the applicants' argument that hours spent on moot issues should be excluded, noting the issues only became moot after the fact.

The court fixed costs at $80,000 all inclusive, finding it to be a fair and reasonable amount.

The applicants sought a declaration that the respondent breached a Letter Agreement and had no valid license to market and sell the applicants' fish-rearing technology.

The court found that neither party had breached the agreement, as time of the essence had been suspended and not properly reinstated.

The parties had mutually agreed to terminate the agreement, triggering the respondent's right to a refund or a license.

The court held that the respondent validly exercised its right to acquire the license, which was certain and enforceable.

The application was dismissed.

The plaintiffs brought a motion to validate service of a statement of claim on two defendants, or alternatively to extend the time for service.

The plaintiffs had failed to formally serve the defendants within the six-month deadline but had provided a courtesy copy to their counsel, and the defendants had notified their insurer.

The defendants argued they would be prejudiced because they had shredded old tenant files after the service deadline.

The Master found the defendants had notice of the claim well before shredding the files and thus created their own prejudice.

The motion was granted, service was validated, and the plaintiffs were awarded costs.