Julian Binavince

In a commercial lease dispute, the appellants challenged findings that the landlord breached the lease and acted in bad faith by terminating access to loading facilities central to the tenant’s business operations.

The court upheld the application judge’s lease interpretation, including that contractual improvements and related access rights could not be nullified through redesignation of common areas.

The court also upheld the finding of repudiatory breach, rejecting the argument that temporary restoration under a without prejudice consent order cured the breach.

A new argument that the tenant had irrevocably affirmed the lease was not entertained on appeal and was unpersuasive in any event.

The appeal was dismissed, with costs to the respondent.

The defendants brought a motion to amend their pleadings to include allegations of historic sexual assaults and information from a dormant 1989 action, and to consolidate the present action with a related lawyer negligence action.

The court granted the consolidation on consent.

However, the court dismissed the motion to amend the pleadings, finding that the eleventh-hour amendments would cause non-compensable prejudice to the elderly plaintiffs by requiring a substantial adjournment of the impending trial.

The court also found that using the sexual assault allegations as a juristic reason to deny an unjust enrichment claim was not legally tenable.

A lien action concerning a residential construction project at 39 Craven Road, Toronto.

Village Homes Inc. was initially contracted to manage renovation work but the project expanded substantially beyond its original scope.

The parties disputed whether Village was a construction manager or general contractor, whether there was a fixed price contract change for extra work, and whether the contract was breached or repudiated.

The court found that Village abandoned the contract and failed to prove any amounts owing.

Ms. Connelly's counterclaim for deficiencies and completion costs was dismissed due to insufficient evidence.

Both the claim and counterclaim were dismissed, and Village's lien was discharged.

The court considered costs following the Plaintiffs' discontinuance of their action against the Defendant Ase Deliri after a protracted procedural history.

The Defendant sought full indemnity costs, or alternatively, partial indemnity costs up to the date of a settlement offer and substantial indemnity costs thereafter.

The court declined to award full indemnity costs, finding the Plaintiffs' conduct was not egregious enough, but granted partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, with a reduction for an unexplained disbursement.

The total costs awarded were $28,336.78.

This decision concerns a mid-trial motion in a construction lien action.

The plaintiff, Village Homes Inc., sought to strike portions of the affidavit and report of the defendant’s witness, Yu Ching Lai, regarding the presence of rebar and concrete in a disputed wall and observations of wall cracking.

The court found that Mr. Lai lacked personal knowledge regarding the rebar and concrete, as his evidence was based on hearsay from a video, and struck those portions.

However, the court allowed Mr. Lai to testify about his personal observations of wall cracking.

The ruling also addresses the parties’ discovery and production obligations, the scope of undertakings, and the admissibility of participant expert evidence.

The decision addresses whether the defendant, Valerie Connelly, should be granted leave to call five disputed witnesses at trial in a construction lien action, despite failing to comply with a court-ordered deadline for serving trial evidence.

The court finds that while Ms. Connelly failed to adequately explain her breach, the interests of justice favour allowing her to call four of the five witnesses, with the breach compensable in costs.

The court also sets a revised timetable for trial steps, addresses costs thrown away, and fixes costs of the hearing, emphasizing the importance of compliance with court orders and balancing procedural fairness.

The court found that the new landlord, Anisa Holdings Ltd., fundamentally breached, repudiated, and/or constructively evicted the tenant, Convocation Flowers Incorporated, by eliminating access to loading docks and the north driveway, which were essential for the tenant’s business.

The court also found a breach of the duty of good faith.

The issue of damages was bifurcated and ordered to proceed to trial.

This decision addresses motions by plaintiffs (M.A. and C.S. et al.) to lift stays of proceedings against Christine Ramgulam-Rafiq (under a consumer proposal) and Kishen Vicky Doon (in bankruptcy) pursuant to section 69.4 of the Bankruptcy and Insolvency Act.

The underlying civil actions seek damages for torts including voyeurism, negligence, and intrusion upon seclusion, stemming from incidents at a spa.

The court considered whether the debtors were necessary parties for complete adjudication, if the BIA's summary claim procedure was inappropriate for complex tort claims, and if the debts would survive discharge under section 178(1) of the BIA.

The court found that both debtors were necessary parties and that the summary procedure was unsuitable.

For Mr. Doon, the claims were found to potentially fall under section 178(1)(a.1)(i) (bodily harm intentionally inflicted) and section 178(1)(e) (false pretenses) due to his guilty plea to voyeurism.

For Ms. Ramgulam-Rafiq, the court found little prospect of success for claims under section 178(1) as the allegations were primarily negligence-based, not intentional torts, and she denied knowledge.

Despite the latter, the court granted the motions to lift the stays against both debtors, concluding there were sound reasons and material prejudice to the plaintiffs if the stays continued.

The applicants sought damages for water infiltration in their condominium unit against the vendor and the condominium corporation.

They alleged the vendor knew of the leakage prior to closing and the corporation delayed necessary repairs.

The vendor brought a counter-application for the release of a $75,000 holdback.

The court found that the vendor acted reasonably and responsibly upon discovering new leakage just before closing, and that the condominium corporation also acted reasonably and expeditiously within the constraints of the Tarion New Home Warranty Program, as the water infiltration was a complex, sitewide issue.

The applicants failed to provide sufficient evidentiary basis for their claimed damages and procedurally altered their requested relief at the hearing.

The application was dismissed, and the $75,000 holdback was ordered to be returned to the vendor.

This is a costs endorsement following a successful summary judgment motion by the defendants, which dismissed the plaintiffs' action in its entirety.

The court considered the defendants' requests for partial indemnity costs and the plaintiffs' financial hardship.

Exercising its discretion under section 131 of the Courts of Justice Act, the court reduced the costs payable by the plaintiffs, ordering them to pay $15,000 to one defendant and $15,000 to the corporate defendants, inclusive of all fees, disbursements, and HST.

The defendants moved for summary judgment to dismiss the plaintiffs' action, which alleged solicitor's negligence against one defendant and sought damages against the other defendants (former mortgagee).

The court found the action time-barred under the Limitations Act, 2002, as it was commenced more than two years after the plaintiffs were aware of their claims.

Furthermore, the court found no evidence of solicitor's negligence or a valid cause of action against the mortgagee, concluding that the plaintiffs' financial hardships were a consequence of their mortgage default and the new lender's risk assessment, not the defendants' fault.

The action was dismissed.

The plaintiff trucking company sued the defendants for $33,900 in unpaid invoices.

The defendants counterclaimed for the same amount, alleging the parties reached an oral resolution agreement to set off the debt against the defendants' share of profits from a joint venture involving excavated soil.

The court reviewed the documentary evidence, including text messages, and found the defendants failed to prove the existence of the alleged resolution agreement.

The plaintiff's claim was granted and the counterclaim was dismissed.

This is an appeal of a summary judgment order for specific performance of an agreement of purchase and sale (APS) of a cottage property.

The sellers (appellants) asserted the APS had terminated, refusing to close.

The buyers (respondents) sued and obtained specific performance.

The appellants argued the APS terminated on November 5, 2020, due to a consent to sever condition, or on December 22, 2020, due to a "finality clause" and Planning Act non-compliance.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that the severance condition was satisfied or waived by the sellers' lawyer's representations and the sellers' subsequent conduct.

The court also upheld that the sellers could not rely on the "finality clause" as they were in breach of their obligation to diligently obtain necessary consents under the Planning Act.

The transaction had already closed, and the property transferred to the buyers.

The moving parties brought a motion for leave to appeal an order of Van Melle J. dated April 19, 2023.

The Divisional Court dismissed the motion for leave to appeal without costs.

The plaintiff, Michael Cavanagh, brought an action against Enzo Mizzi and others, alleging a verbal "umbrella agreement" under which he was entitled to half of Enzo's shares in two numbered companies holding the "Homewood" properties.

Cavanagh claimed this agreement covered virtually all of Mizzi's real estate projects since 2001.

Mizzi denied the existence of such an agreement, asserting Cavanagh was an employee.

The court found no objective meeting of the minds for the alleged "umbrella agreement" and that its terms were unascertainable.

Despite both parties having credibility issues, the court dismissed the action, finding Cavanagh's claim of a multi-million dollar verbal agreement without documentation to be objectively unsustainable.

These are supplementary reasons to an appeal previously dismissed, addressing the calculation of losses for investors.

The Court of Appeal accepted the appellants' submissions that interest should be calculated on a simple, annual basis, consistent with the "Fixed Interest Rate" clause in the Loan Participation Agreements.

Consequently, the amounts awarded to the respondents in the original judgment were varied to reflect this simple interest calculation.

The plaintiffs sought an interlocutory injunction to prevent the defendants from enforcing two vendor take-back mortgages on a commercial property and the plaintiffs' residential property.

The plaintiffs alleged they were induced to purchase the property based on inaccurate sales figures and that the transaction was fraudulent.

The court dismissed the motion, finding that the plaintiffs failed to establish irreparable harm that could not be quantified monetarily and that the balance of convenience favoured the defendants.

The decision reinforced the principle that mortgagees should be allowed to enforce contractual rights unless fraud related to the mortgage itself is proven, and noted the plaintiffs' apparent inability to honour their undertaking as to damages.

This is an appeal from a summary judgment holding appellants liable on guarantees related to a syndicated mortgage.

The Court of Appeal upheld the motion judge's finding that personal and corporate guarantees were incorporated by reference into the investment agreements, despite investor unawareness and limiting clauses, based on objective contractual interpretation and trustee disclosure duties.

However, the Court varied the damages calculation, ruling that the interest rates specified in the Loan Participation Agreements (10% or 12%) should apply, not the 18% rate from the Loan Commitment.

The appeal was dismissed on liability but allowed on the interest rate calculation.

The respondents purchased a property and subsequently discovered latent construction defects related to building permits issued in 1987.

They commenced an action against the appellant municipality more than 15 years after the permits were issued.

The motion judge held that the ultimate 15-year limitation period under s. 15(2) of the Limitations Act, 2002 was tolled pursuant to s. 15(4)(b) because one of the respondents was a minor during the running of the limitation period, even though she did not own the property or have a claim at that time.

The Court of Appeal reversed, holding that a purposive and contextual interpretation of s. 15(4)(b) requires that the plaintiff's claim must arise while they are a minor for the tolling provision to apply.

The claims regarding the 1987 building permits were therefore statute-barred.

The defendants moved to dismiss the action for delay under Rule 24.01 of the Rules of Civil Procedure.

The plaintiffs argued that the defendants were not entitled to bring the motion due to non-compliance with discovery plan obligations, that the delay was not inordinate, and that there was a reasonable explanation for the delay (conflict of interest with previous counsel, health issues of a key principal, COVID-19 pandemic, and a complex property sale).

The plaintiffs also argued that the defendants failed to demonstrate actual prejudice.

The court found that the 1 year and 9 months delay was not inordinate, and that the combined explanations for the delay were reasonable and cogent.

Furthermore, the defendants failed to prove actual prejudice that would prevent a fair trial.

Consequently, the motion to dismiss was dismissed, and no costs were awarded due to the plaintiffs' inaction necessitating the motion.