Kevin Sherkin

Two related actions challenged a municipality’s expropriation of commercial land that formed part of a 1,000‑acre assembly for a vehicle manufacturing plant.

The plaintiffs argued that the municipality unlawfully expropriated the property and conferred an illegal “bonus” on a private manufacturer by transferring the land at the expropriation price rather than its alleged fair market value, contrary to s. 106 of the Municipal Act, 2001.

The court held that the municipality had lawful authority to expropriate the land for valid public purposes related to economic development.

Applying the contextual approach to s. 106 adopted in Friends of Lansdowne Inc. v. Ottawa (City), the court concluded that the transaction did not confer an “obviously undue advantage” on the private enterprise.

Accordingly, the expropriation and subsequent transfer did not breach the statutory prohibition on municipal bonuses.

The purchaser brought a motion for summary judgment in litigation arising from a failed commercial real estate transaction, seeking dismissal of the vendor’s action and return of a $250,000 deposit.

The purchaser argued it was justified in refusing to close due to alleged breaches including lease modifications without consent, misrepresentation of the rent roll, failure to deliver estoppel certificates, and absence of required personal guarantees.

The court held that the alleged deficiency regarding guarantors did not justify refusal to close and that the individual signatory purchaser had been released from liability through a valid assignment to a corporate purchaser.

However, genuine issues requiring a trial remained regarding alleged contractual breaches, the forfeiture or return of the deposit, and related claims including a third-party claim against the purchaser’s lawyers.

Partial summary judgment was granted dismissing the action against the individual purchaser, but the remaining issues were directed to trial.

The plaintiff subcontractor brought a motion for summary judgment against the individual defendants for breach of trust under the Construction Lien Act.

The corporate contractor had failed to pay the plaintiff for completed flooring work despite receiving funds from the owners and swearing a statutory declaration that all sub-trades had been paid.

The court found a breach of trust occurred and held two of the individual defendants personally liable under s. 13(1) of the Act, finding they had effective control of the corporation and acquiesced in the breach.

The action against a third individual defendant, an employee, was dismissed.

The plaintiff brought an action against a developer for breach of a partnership agreement and included several co-owners of the development project as defendants, alleging they were trustees de son tort who knowingly received trust funds.

The co-owner defendants moved for summary judgment to dismiss the claims against them.

The court found no privity of contract between the plaintiff and the moving defendants, and no evidence that they knowingly assisted in a breach of trust or received more than their proportionate share of profits.

The motion for summary judgment was granted and the action against the moving defendants was dismissed.

The court considered whether a defendant whose statement of defence had been struck and who was noted in default could nonetheless make submissions at trial regarding the plaintiff’s entitlement to damages.

The plaintiff argued that allowing submissions would constitute an abuse of process, relying on Rule 19.02 of the Rules of Civil Procedure.

The court applied authority interpreting Rule 19.02 and held that making oral submissions does not constitute “taking another step” in the action.

Accordingly, a defendant noted in default is not barred from attending a motion or hearing and making submissions.

The court permitted the defendant to make submissions and directed the parties to exchange further written submissions.

Following summary judgment in a mortgage debt enforcement action, the court determined the appropriate costs award.

The successful lender sought substantial indemnity costs of approximately $78,500 relying on contractual mortgage provisions and the defendant’s untenable defence.

The court held that although the lender had a strong argument for elevated costs, the legal resources deployed were disproportionate given the simplicity of the claim and the self‑represented defendant’s weak position.

Exercising its discretion despite the contractual clause, the court reduced the costs award as unreasonable and excessive.

A lump‑sum costs award of $38,000 inclusive was ordered.