Julian Binavince

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 tenant brought a motion to stay an eviction order pending its appeal of a decision finding it failed to validly exercise its option to renew a commercial lease.

The court first determined that the appeal properly lay to the Court of Appeal, not the Divisional Court, and transferred the appeal.

Sitting as a Superior Court judge, the court then applied the RJR-MacDonald test and granted the stay, finding the appeal raised a serious issue, the tenant would suffer irreparable harm to its business if evicted, and the balance of convenience favoured the tenant.

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.

This case involved an application and cross-application concerning a commercial lease dispute.

The tenant, 2324702 Ontario Inc. (Remix), sought a declaration that its lease was in full force and effect and had been validly renewed.

The landlord, 1305 Dundas W Inc., sought termination of the lease and possession.

The court granted Remix relief from forfeiture for a single instance of non-payment of rent, finding the breach not grave and the landlord suffered no damages.

However, the court found that Remix failed to properly exercise its option to renew the lease, as its communications were equivocal and conditional, not a clear and unequivocal notice.

The court also rejected arguments of waiver and estoppel regarding the renewal.

Additionally, the court applied estoppel against the landlord, preventing it from retroactively claiming increased realty taxes based on a strict lease provision, due to its prior conduct of adopting the previous landlord's calculation method.

Ultimately, the lease was declared expired, and Remix was ordered to vacate the premises within 60 days, while also being ordered to pay outstanding rent increases and a reasonably allocated share of realty taxes.

The applicant's application was dismissed, leading to a costs endorsement.

The respondent sought substantial indemnity costs, arguing that her offer to settle (a dismissal) should attract Rule 49 consequences.

The applicant contended that an offer to dismiss does not engage Rule 49 because a dismissal is not a "recovery" of judgment.

The court agreed with the applicant, citing *S. & A. Strasser Ltd. v. Richmond Hill (Town)*, and found that Rule 49 did not apply.

Furthermore, the court determined that the applicant's conduct did not rise to a level warranting substantial indemnity costs under Rule 57.01(1), as per *Iannarella v. Corbett*.

Consequently, costs were fixed on a partial indemnity basis at $20,000.00, all-inclusive, to be paid by the applicant to the respondent.

The applicant sought specific performance of an agreement of purchase and sale (APS) for a unique 1.9-acre property.

The APS was conditional on the seller obtaining Credit Valley Conservation Authority (CVC) permission for "cut and fill" and building permits.

The applicant alleged the respondent failed to act in good faith and take reasonable steps to obtain consent.

The respondent argued she took reasonable steps, incurring significant costs, and terminated the APS when further expenses were deemed unwarranted.

The court found the respondent acted in good faith and dismissed the application, also noting that specific performance would not have been granted due to the applicant's failure to prove the property's uniqueness and the property's subsequent transfer to a third party not involved in the application.

Following the unopposed dismissal of an action claiming $35 million for fraud and conspiracy, the successful defendants and third parties sought their costs.

The court found that the plaintiffs' unsubstantiated allegations of fraud were advanced recklessly, entitling the primary defendants to costs on an elevated scale.

The court awarded the primary defendants $426,055.56 (splitting the difference between partial and substantial indemnity) and awarded the third parties their full claimed partial indemnity costs of $102,980.59.

The defendants, Zhiyi Zhou and Lina Wu, brought a motion to set aside the report of Master Wiebe, alleging errors in the Master's findings regarding a construction contract dispute and a reasonable apprehension of bias.

The Master had found that Mr. Zhou engaged in subterfuge regarding contract terms, improperly terminated the agreement, and was not credible.

The Superior Court dismissed the defendants' motion, confirming the Master's report.

The court found no error in the Master's application of the Browne v. Dunn rule, nor any reasonable apprehension of bias, emphasizing the high threshold for such claims and the need to accommodate self-represented litigants while respecting the other party's rights.

The appellant appealed an order of Justice Petersen dismissing the entire action against multiple defendants.

All respondents except Mr. Rabie consented to setting aside the order.

The Court of Appeal found that the motion judge had misapprehended the status of the action against Mr. Rabie, incorrectly believing he was no longer a defendant.

A default judgment against Mr. Rabie had been set aside in July 2017 regarding the breach of fiduciary duty claim, which was ordered to proceed to trial.

Mr. Rabie had not opposed the status motion or the litigation timetable order.

The Court allowed the appeal, set aside the dismissal order, and ordered the parties to attend a status hearing to establish a litigation timetable.

The appellant sought to purchase real property from the respondent under an offer accepted on October 10, 2015, which included a due diligence clause requiring written notice within 30 days that the condition was satisfied.

The appellant failed to provide such notice by the deadline of November 9, 2015.

Subsequently, the appellant submitted an amendment to the agreement that purported to extend the due diligence period to 60 days.

The application judge found that a new agreement had been created.

The Court of Appeal allowed the appeal, finding that the application judge erred by failing to properly consider the distinction between resurrection of the original agreement and creation of a new agreement, and by not adequately addressing the parties' intentions regarding the fact that the original agreement had become null and void.

The matter was remitted to proceed by action.

The plaintiff brought a motion for a status hearing to set a litigation timetable for actions commenced over six years prior regarding failed investments.

The responding defendants sought to dismiss the actions for delay under Rule 48.14.

The court found that the plaintiff failed to provide an acceptable explanation for a three-year period of delay and that the defendants would suffer non-compensable prejudice due to fading memories and lost documents.

The actions were dismissed for delay.

The plaintiff landlord moved for summary judgment for unpaid rent under a commercial lease.

The defendant tenant argued that the notice of default was insufficient and that the landlord's re-entry by changing the locks amounted to forfeiture rather than distraint.

The court found that actual notice was received via email and fax, satisfying the notice requirement.

The court also held that the re-entry was a proper distraint, as the landlord clearly communicated its intent to distrain and offered reasonable access to the premises.

However, the court found a genuine issue requiring a trial regarding the calculation of additional rent damages.

The plaintiff contractor, RPC Construction Ltd., claimed a construction lien and damages for breach of contract against the defendant owners, Zhiyi Zhou and Li Na Wu, for renovation work on their property.

The defendants denied the claim and counterclaimed for set-off and damages.

The court found that the defendants improperly terminated the contract, entitling RPC to the remainder of the contract price and unpaid extras.

The court dismissed the defendants' counterclaim, largely due to issues of credibility, lack of corroboration, and the doctrine preventing owners from back-charging for deficiencies when they wrongfully terminate a contract and deprive the contractor of the opportunity to correct them.

The appellant sold her condominium to the respondent but failed to vacate the premises on closing.

After obtaining a writ of possession, the respondent had the appellant's personal property moved to storage and subsequently disposed of it to a junk dealer.

The appellant brought a claim for conversion, which the trial judge dismissed on the basis that the appellant had abandoned her goods and failed to prove their value with expert evidence.

On appeal, the Divisional Court found the trial judge made palpable and overriding errors in finding abandonment, as the appellant had communicated her desire for the return of her goods and the factors for abandonment were not met.

The court also held the trial judge erred in failing to assess damages despite the lack of expert evidence, as a substantial loss was demonstrated.

The appeal was allowed and damages for conversion were assessed at $25,000, less moving and storage costs.

The plaintiffs brought a motion to vary a timetable order, seeking leave to set the action down for trial despite unfulfilled mandatory mediation requirements and an extension of the trial set-down deadline.

The defendants opposed, alleging prejudice due to delay and missing documents related to a fraudulent conveyance claim.

The court found that both parties contributed to the delay in procedural steps, particularly regarding mediation and document exchange.

The motion was granted, varying the timetable to set new deadlines for mediation, setting the action down for trial, and for defendants to serve affidavits of documents, as no inordinate delay or actual prejudice to the defendants was established.

The plaintiffs brought a motion for the appointment of an inspector under s. 161 of the Business Corporations Act to investigate two defendant companies.

The defendants opposed, arguing the plaintiffs lacked standing as they were no longer shareholders.

The court found the plaintiffs had standing based on original share certificates.

The court granted the motion, holding that the companies' failure to provide financial statements prior to 2012 raised an index of suspicion of oppressive conduct, meeting the low evidentiary threshold for appointing an inspector.

The inspector's mandate was limited to issues not statute-barred.