Julian Binavince

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.

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.

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.

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 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.

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.

The applicant and three respondents sought a declaration that the respondent 2180366 Ontario Limited (218) failed to properly exercise a Right of First Refusal (ROFR) contained in a Partnership Agreement, which would permit the sale of shares from Parmantid Inc. to the applicant. 218 contended its exercise of the ROFR was unequivocal despite reserving certain rights.

The court found 218's exercise of the ROFR valid, determining that the reservation of rights was not a renegotiation of the purchase price but merely notice of a potential future entitlement, such as claims for unjust enrichment or set-off related to undisclosed liabilities.

Consequently, the Share Purchase Agreement between the applicant and the vendors became null and void.

The application was dismissed, and costs were awarded to 218 against the applicant and the other respondents.

The parties entered into an agreement of purchase and sale for a residential property.

Prior to closing, the property sustained water damage from a flooded basement.

The vendors delayed notifying the purchasers until the day before closing and only offered an opportunity to inspect on the closing date.

Both parties alleged the other breached the agreement when the transaction failed to close.

The court held that the vendors breached the agreement by failing to satisfy implied terms requiring timely notice and a meaningful opportunity to inspect, and by acting in bad faith.

The purchasers were entitled to the return of their deposit.

The applicants (vendors) brought an application for a declaration that the respondent (purchaser) repudiated two agreements of purchase and sale for a property to be severed.

The agreements required a second deposit upon severance approval.

The applicants obtained approval but delayed notifying the purchaser for months, then demanded the second deposit on unreasonably short notice while the purchaser was out of the country.

When the deposit was not paid by the deadline, the applicants terminated the agreements.

The court dismissed the application, finding that the applicants failed to act in good faith and set an unreasonable deadline, and therefore could not rely on the 'time is of the essence' clause to terminate the contract.

The applicant unit owner commenced a proceeding against the respondent condominium corporation for damages arising from disruptive repair work to the common elements.

The parties settled the underlying dispute but left the issue of costs for the court to determine.

The applicant sought costs of $21,419.81, while the respondent sought costs of $40,069.05 based on an earlier settlement offer.

The court declined to award costs to either party, finding that the dispute could have been settled earlier but that penalizing the applicant for not accepting a withdrawn offer would disincentivize cooperative settlements.

Each party was ordered to bear their own costs.

The plaintiff and defendant sought costs on a full indemnity scale after the moving party withdrew her motion to intervene and set aside a writ of possession.

The moving party had claimed to be a lawful tenant under a lease, which the plaintiff and defendant alleged was fraudulent.

The court declined to award full indemnity costs, noting that because the motion was withdrawn, it could not make the necessary factual findings of reprehensible conduct.

The court awarded partial indemnity costs, fixing the plaintiff's costs at $68,092.48 and the defendant's costs at $11,959.92, payable by the moving party.

The plaintiffs sued their former lawyers for professional negligence and breach of contract arising from their representation in an underlying employment and corporate dispute.

The defendant lawyers brought motions for summary judgment to dismiss the claims.

The court granted the motions, finding no genuine issue for trial because the plaintiffs failed to adduce expert evidence on the standard of care, the evidence showed the plaintiffs were advised of the litigation risks, and there was no evidence that the lawyers' conduct caused the plaintiffs' alleged damages.