Julian Binavince

The plaintiff mortgagee sought to take possession of the mortgaged property through self-help after the defendants defaulted on the mortgage.

The defendants brought a motion for a mandatory order restoring possession, arguing the plaintiff did not take possession peaceably.

The court found that while the property was not fully resided in, it was not abandoned, and the plaintiff should have given the defendants time to remove their possessions.

The court granted the defendants 30 days to vacate the property, after which the plaintiff is entitled to take physical possession.

The defendant, Haccpone Co., Ltd., brought a motion under section 104 of the Courts of Justice Act seeking an order that the plaintiff, Dent-X Canada, pay security into court equal to twice the value of mask-making machinery delivered to it.

Haccpone alleged non-payment under a contract that allowed for repossession.

Dent-X disputed the existence of the contract, alleging the machinery was compensation for a prior failed delivery and raising issues of fraud and civil conspiracy.

The court dismissed the motion, finding that Haccpone failed to establish substantial grounds for its claim or that the balance of convenience favoured granting the order, noting significant factual disputes requiring a trial.

Following a successful motion for summary judgment regarding a syndicated loan in a failed condominium project, the plaintiffs sought costs.

The court found that the defendants engaged in a litigation strategy of 'delay, deny and obstruct', including failing to disclose documents, refusing to answer questions, and delaying payment of a prior costs award.

Consequently, the court awarded the plaintiffs costs on a substantial indemnity scale, fixing the quantum at $61,000.18.

The plaintiffs moved for summary judgment seeking specific performance of an Agreement of Purchase and Sale for a cottage property.

The defendants failed to close the transaction, arguing the agreement was void due to unfulfilled conditions regarding severance under the Planning Act and uncertainty over rights of way.

The court found the agreement valid and binding, noting the defendants could not rely on their own failure to obtain the necessary severances to terminate the contract.

Finding the property uniquely suited to the plaintiffs' needs, the court granted summary judgment and ordered specific performance.

The defendants brought a motion to transfer a franchise dispute action from Toronto to Ottawa.

The court found the motion premature because the defendants had already been noted in default in Toronto for failing to file defences.

The court adjourned the transfer motion sine die, directing the defendants to first bring a motion in Toronto to set aside the noting of default under Rule 19.03, or obtain the plaintiff's consent to file defences.

This decision addresses cross-motions for summary judgment in a case stemming from a failed condominium project.

The plaintiffs, investors in a syndicated loan secured by a mortgage, sought judgment against the developer and its principal for their investment losses, relying on a contractual guarantee.

The defendants sought to dismiss the action, arguing the guarantee was not binding and the plaintiffs assumed investment risks.

The court granted the plaintiffs' motion, finding that the loan commitment, which included a guarantee from the developer and its principal, was incorporated into the trust agreement governing the syndicated loan.

The court emphasized the trustee's fiduciary duty to enforce the guarantee and allowed the beneficiaries (plaintiffs) to enforce it directly due to the trustee's failure to act.

The court also made adverse inferences against the defendants due to their litigation conduct, including refusal to answer questions and produce witnesses.

Competing commercial lease applications required interpretation of a negotiated lease governing redevelopment of a heritage property, allocation of a $4 million construction allowance, rooftop rental credits, rent arrears, and rooftop access for telecommunications tenants.

The court applied established contract interpretation principles to require the tenant to account fully for landlord-funded construction work and implied a term requiring repayment of overpaid construction allowance amounts not used for the landlord's work.

The court also held rooftop rent credits were payable from the commencement of the lease, found the landlord had not validly terminated the lease for alleged arrears, and granted relief from forfeiture if needed.

Pre-existing rooftop tenants were held entitled to continued access through the premises on the basis of their leases and easements of necessity, and the tenant was enjoined from interfering.

Success was divided overall, and no costs were ordered between landlord and tenant.

The applicants invested funds into a business enterprise intended to operate an entertainment complex out of a leased heritage building.

The corporate structure was never formalized, and the funds were advanced directly to the tenant corporation.

The principal of the tenant subsequently locked the applicants out of the premises and refused to provide corporate or financial records.

The applicants brought an oppression remedy application.

The court found that although the applicants were not direct shareholders of the tenant, they were proper complainants as beneficial owners of the business enterprise.

The court held that the respondents' conduct defeated the applicants' reasonable expectations and ordered disclosure, an accounting, and tracing of funds, while adjourning requests for operational control and a buyout to a trial of issues.

The plaintiff mortgagee brought a motion for possession of a residence after the mortgagor defaulted.

The mortgagor brought a cross-motion in a related oppression action seeking an injunction to restrain the mortgage enforcement and an order for interim funding to pursue the oppression claim.

The court found that the mortgagor did not establish a strong prima facie case of oppression or show that he would suffer irreparable harm if the injunction was not granted.

The court also found that the mortgagor did not meet the test for interim funding.

The motion for possession was granted, and the cross-motion for an injunction and interim funding was dismissed.

Following the settlement of a construction lien action for $17,000, the parties disputed the quantum of costs payable to the plaintiff.

The plaintiff sought over $22,000, while the defendant argued costs should be limited to Small Claims Court tariffs because the plaintiff failed to take the least expensive course of action.

The court awarded the plaintiff $8,000 in costs, finding that while the plaintiff should have transferred the matter to Small Claims Court earlier, the defendant also delayed in bringing its motion to declare the lien expired.

The applicant, C.I.D., sought a declaration that its sublease was terminated by operation of law when the head landlord, Correl, changed the locks on the premises due to the head tenant, Garnier's, non-payment of rent.

C.I.D. also sought damages.

Garnier argued an oral rent deferral agreement existed with Correl, making the termination unlawful, and sought relief from forfeiture.

The court found that Correl lawfully terminated the head lease by changing the locks, which automatically terminated the sublease.

The court rejected Garnier's claim of an oral agreement and denied relief from forfeiture due to unclean hands.

The sublease was declared terminated, and damages were referred to a Master.

The plaintiff attended a status hearing ordered by the Court of Appeal to establish a litigation timetable.

The remaining defendant argued the action should be dismissed for delay, citing the plaintiff's failure to advance the litigation since the appeal.

The court found that while the plaintiff's delay was unnecessary, it was not severe enough to warrant dismissal, especially given the defendant's own delay in delivering a statement of defence.

A litigation timetable was ordered.

The applicant subcontractor sought an order that the respondent law firm pay $39,812.68, which the firm had received from its client (the general contractor) for legal fees.

The funds originated from a settlement in a construction lien action.

The court found that the funds were impressed with a statutory trust under section 8 of the Construction Lien Act.

The court held that the law firm was in 'knowing receipt' of trust funds when it transferred the money from its trust account to its general account to pay its legal fees, as it had knowledge of the applicant's outstanding trust claim against the contractor.

The law firm was ordered to pay the funds to the applicant as a constructive trustee.

The defendant, John Hogan, brought a motion to set aside a default judgment obtained by the plaintiff, Halton Electric Co. Limited, in a construction lien action.

Hogan argued procedural irregularity due to a faxed Notice of Intent to Defend going astray, and also sought discretionary relief.

The court found no procedural irregularity but exercised its discretion to set aside the default judgment, finding a plausible excuse for the default, an arguable defence on the merits (particularly regarding personal liability under s. 13(1) of the Construction Lien Act), and no significant prejudice to the plaintiff.

The court declined to impose conditions for setting aside the judgment.

In an addendum to a previous appeal decision regarding a breached real estate contract, the Court of Appeal determined the amount of consequential damages owed to the appellants.

The appellants filed documentation establishing consequential losses of $28,536.64, which the respondents acknowledged as reasonable.

The court ordered the respondents to pay this amount in addition to the previously awarded damages, along with pre-judgment interest.

No order as to costs was made as the parties reached an agreement.

The defendant brought a motion to declare the plaintiff's construction lien expired.

The plaintiff conceded the lien had expired, leaving only the issue of costs to be determined.

The defendant sought substantial indemnity costs for an earlier motion to vacate the lien and partial indemnity costs for the current motion.

The court awarded the defendant a total of $5,500 in partial indemnity costs, reducing the amounts claimed due to the straightforward nature of the motions and unnecessary factum preparation.

The purchasers agreed to buy the vendors' house.

Shortly before closing, the basement flooded.

The vendors informed the purchasers of the damage and insurance details the day before closing.

The purchasers refused to close on the scheduled date and demanded a price reduction or an extension with conditions.

The vendors offered reasonable extensions, which were rejected.

The application judge found the vendors breached the contract and acted in bad faith.

On appeal, the Court of Appeal reversed, finding no substantial damage that would allow the purchasers to terminate.

The purchasers' refusal to close constituted repudiation, entitling the vendors to terminate and claim damages for the lower resale price.

The appellants and respondent entered into agreements of purchase and sale for a property to be severed.

The agreements required a second deposit upon the city's approval of the severance.

The appellants obtained approval but withheld this information from the respondent for over six months.

Upon finally informing the respondent, the appellants demanded immediate payment of the second deposit and subsequently terminated the agreements when the respondent, who was out of the country, requested an extension.

The Court of Appeal upheld the application judge's finding that the appellants acted unreasonably and breached the duty of good faith performance by imposing an arbitrary and impossible deadline.

The appellants appealed a summary judgment dismissing their action for breach of contract and solicitor's negligence against their former counsel, Gardiner Roberts LLP.

The appellants alleged errors in judgment, failure to properly advise, and failure to consider costs during the firm's representation of them in a prior action.

The Court of Appeal upheld the motion judge's finding that the firm communicated steps to the appellants, advised them of risks, and did not breach the standard of care.

The appeal was dismissed.

The parties entered into two agreements to lease a heritage building for an event venue and restaurant.

Disputes arose over the scope of the landlord's work, specifically roof repairs, and the execution of a formal lease.

The landlord sought to terminate the agreements, arguing they were too uncertain to be enforceable and that the tenant had defaulted.

The tenant sought declarations that the agreements were binding and that the landlord was in breach.

The court held that both agreements were binding and enforceable, and that a formal lease was not a condition precedent.

The court found that both parties had breached their obligations, resulting in a contractual stalemate, and dismissed the landlord's application to evict the tenant.