Karey Anne Dhirani

The appellant appealed a trial judge's damages award arising from a failed agreement of purchase and sale for a new home, arguing that the cost of certain upgrades should have been included.

The respondent cross-appealed on the issues of mitigation and costs.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's treatment of the upgrades as a deposit.

The Court also dismissed the cross-appeal on mitigation.

However, the Court allowed the cross-appeal on costs, finding that the trial judge erred by refusing to consider the costs consequences of Rule 76.13.

Because the appellant recovered less than $100,000 and it was unreasonable to continue the action under the ordinary procedure, the appellant was denied its costs of the action.

This endorsement addresses a request for costs following the dismissal of Gary Beach's motion for leave to appeal and Heliotrope Investment Corporation's related motion being dismissed as moot.

Heliotrope sought $15,000 in costs, payable jointly and severally by Mr. Beach and three corporations in receivership.

The court awarded Heliotrope $15,000 in costs, payable solely by Gary Beach, declining to impose liability on the corporations due to a lack of apparent authority for Mr. Beach to act on their behalf and the absence of consent from their receiver.

Gary Beach, spouse of a bankrupt, sought leave to appeal a receivership order concerning three corporations where his wife was the sole shareholder and director.

The order had appointed MNP Ltd. as receiver under both the Bankruptcy and Insolvency Act (BIA) and the Courts of Justice Act.

Beach, who had participated in the original receivership motion, filed an appeal without leave, which is required under s. 193 of the BIA.

He subsequently moved for leave to appeal and an extension of time.

Heliotrope Investment Corporation, the party that obtained the receivership order, opposed the motion.

The Court of Appeal dismissed the motion for leave to appeal, finding that none of Beach's proposed grounds of appeal (lack of identified test, absence of reasons, issues with order settlement, unreflected assurances) were prima facie meritorious, and no issues of general importance were raised.

The defendants moved for an interim stay of the plaintiff's mortgage enforcement actions, arguing that the plaintiff acted in bad faith and fraudulently, and that they could secure refinancing within four weeks.

The plaintiff opposed the motion.

The court dismissed the defendants' motion, finding no credible evidence of bad faith or fraud by the plaintiff.

Applying the principles for restraining a mortgagee's rights and the RJR-MacDonald test for a stay, the court concluded there was no serious issue to be tried, no irreparable harm to the defendants, and that the balance of convenience overwhelmingly favoured the plaintiff.

The plaintiffs, an immigration consultant and his company, brought an action for defamation against former clients who posted over 60 negative and inflammatory online reviews after their retainer was terminated.

The defendants were noted in default.

The court found the posts defamatory and awarded $200,000 in general damages and $50,000 in aggravated damages.

The court also granted a permanent injunction restraining the defendants from further defamatory statements and ordered them to remove the existing posts.

The action against one defendant, who was not proven to be responsible for the posts, was dismissed.

The defendant, Metropolitan Toronto Condominium Corporation No. 1255 (MTCC 1255), brought a motion to stay an action commenced by 23 St. Thomas Inc. and Metropolitan Toronto Condominium Corporation No. 1271 (MTCC 1271) in favour of mandatory arbitration under the Condominium Act, 1998.

The court found that the pith and substance of MTCC 1271's claims related to the interpretation and application of the Reciprocal Agreement and Indemnity Agreement, making them arbitrable.

Consequently, MTCC 1271's claims were stayed.

However, the court declined to stay 23 St. Thomas Inc.'s claims, as it was not a party to the agreements and there was insufficient evidence to pierce the corporate veil.

The motion was granted in part, with an arbitrator appointed for the arbitrable claims.

The defendants in a solicitor's negligence action brought a motion to remove the plaintiff's lawyers of record, arguing they had a conflict of interest and would likely be called as witnesses at trial.

The plaintiff's lawyers had represented the plaintiff in the underlying bankruptcy matters both before and after the defendants' retainer.

The court found that the lawyers' evidence regarding the advice they gave the plaintiff and the steps they took or failed to take was significant to the defendants' defence and mitigation arguments.

Applying the relevant principles, the court concluded that a fair-minded, reasonably informed member of the public would find the proper administration of justice required the lawyers' removal.

The motion to remove counsel was granted, while motions for production and leave to examine non-party witnesses were adjourned.

The plaintiff sought a reconsideration of a costs decision awarding the defendant City partial indemnity costs of $10,517.19 for an abandoned motion.

The plaintiff argued it was unclear whether a response to the City's costs submissions was required.

The court dismissed the reconsideration request, noting the plaintiff failed to respond to the duly served submissions or challenge the presumptive entitlement to costs under Rule 37.09(3), and confirmed the previous costs award.

The plaintiff sought costs of $89,304.86 on a partial indemnity basis following a successful motion for declaratory relief regarding an easement over the defendant's property.

The defendant argued for each party to bear its own costs due to divided success, or alternatively, a reduced amount.

The court rejected the divided success argument, finding the plaintiff was the successful party, but reduced the costs award to $45,000 all inclusive, finding the plaintiff's claim excessive and noting the abandoned claim against the municipality.

The plaintiff Medical Centre and defendant JD Development owned abutting properties subject to a system of easements.

Both submitted redevelopment site plans to the City of Markham.

The Medical Centre's plan relied on paving an easement over JD Development's property for vehicular access, while JD Development's plan showed the easement as partially sodded, which would block vehicular access.

The Medical Centre brought a motion for declarations regarding its right to use and pave the easement.

JD Development argued the Local Planning Appeal Tribunal (LPAT) had exclusive jurisdiction.

The Superior Court held it had jurisdiction to determine property rights, declared the Medical Centre had the right to use the easement for vehicular traffic and to pave it at its own expense, but declined to order JD Development to amend its site plan.

The appellants appealed a decision of the Superior Court regarding the interpretation of a "Net Developable Area" clause in two agreements for the purchase and sale of development lands.

The central issue was whether tableland used for storm water management ponds was included in the definition of Net Developable Area when such lands fell within the Protected Countryside designation of the Greenbelt Plan.

The Court of Appeal upheld the application judge's interpretation, finding that the parenthetical exception did not apply to Greenbelt lands and that the terms "open space lands" and "Greenbelt lands" have distinct meanings subject to different planning controls.

The plaintiff brought a motion to quash the defendant's appeal to the Divisional Court from an order dismissing the defendant's motion to discharge a construction lien.

The plaintiff argued the appeal was barred by s. 71(3) of the Construction Lien Act because the underlying order was interlocutory.

The court dismissed the motion to quash, finding that the underlying order was final because it deprived the defendant of a substantive defence that would have ended the lien action and allowed for the return of posted security.

The owner, 2247129 Ontario Inc., brought a motion to declare the construction lien of Clarkway Construction Ltd. expired.

The central issue was whether a subcontractor's lien rights could extend beyond the date the general contractor's contract with the owner ended by abandonment or termination.

The court found that the subcontractor's lien rights did not extend beyond the termination date of the general contract (February 9, 2016, at the latest).

The subcontractor, Clarkway, had a responsibility to stay informed about the project's status.

Since Clarkway registered its lien on April 15, 2016, more than 45 days after the general contract's termination, the lien was declared expired.

Costs were awarded to the owner.

Following a successful summary judgment dismissing an action concerning enforcement of an alleged agreement of purchase and sale for vacant land, the court determined costs.

The defendants sought full indemnity or alternatively substantial indemnity costs, relying partly on an earlier offer to settle.

The court held that substantial indemnity costs were not warranted absent misconduct or other exceptional circumstances, and declined to apply Rule 49 consequences where the plaintiffs recovered no judgment.

The court fixed costs on a partial indemnity basis and reduced the defendants’ claimed fees after reviewing the hours spent.

Total costs were awarded against the plaintiffs.

Competing motions for summary judgment arose from a failed real estate transaction involving a vacant residential lot.

The purchasers claimed the parties had reached a binding agreement of purchase and sale and sought specific performance and damages.

The vendors argued their counter‑offer contained an express irrevocability deadline and was never accepted before expiry.

The court applied basic contract principles of offer and acceptance, holding that the vendors’ amended document constituted a counter‑offer that lapsed when the purchasers failed to communicate acceptance within the stated time.

As no meeting of the minds occurred, no enforceable agreement existed and the purchasers’ action was dismissed.

Following a construction lien trial involving landscaping services, the successful plaintiff sought costs exceeding $100,000 based largely on an offer to settle that it had bettered at trial.

The court considered Rule 49.10 of the Rules of Civil Procedure and the principles of fairness, reasonableness, and proportionality governing costs awards.

Although the plaintiff obtained judgment and had made a favourable settlement offer, the court found the claimed hours and total costs excessive relative to the amount recovered.

Taking into account the defendant’s unsuccessful counterclaim and litigation conduct but emphasizing proportionality, the court fixed costs at a reduced amount.

A contractor brought a construction lien action seeking payment for landscaping work performed at a residential property.

The property owner argued the parties had agreed to a fixed lump‑sum contract and counterclaimed for the cost of correcting deficiencies and completing the work.

The court found no lump‑sum contract existed and instead concluded the arrangement was an open‑ended design‑build project where costs increased as the owner selected upgraded materials and features.

After reviewing a Scott Schedule and evidence of work performed, the court determined the contractor was entitled to payment for completed work subject to deductions for deficiencies.

Judgment was granted enforcing the construction lien for the net amount owed after deducting remediation costs.