Kirsten T. Crain

This decision addresses the impact of a Court of Appeal ruling that declared certain contingent property interests in a 1981 development agreement void for perpetuities.

The Superior Court was remitted to determine which other provisions of the 1981 Agreement and related contracts were affected and rendered inoperative.

The court found that the voided sections fundamentally altered the original bargain, which included a path for the evolution and potential redevelopment of the golf course lands, not a perpetual obligation to operate a golf course.

Consequently, several provisions related to the golf course's perpetual operation, sale, right of first refusal, and redevelopment path were declared inoperative.

The 40% open space principle was largely maintained but its application to golf course redevelopment was clarified.

This appeal concerned the application of the rule against perpetuities to land development agreements.

ClubLink Corporation ULC appealed a lower court decision that upheld perpetual obligations to operate a golf course or convey the land to the City of Ottawa.

The Court of Appeal found that the contractual provisions requiring conveyance of the golf course lands to the City, or reconveyance back to the original owner, created contingent interests in land.

As these interests did not vest within the 21-year perpetuity period, they are void and unenforceable.

The court clarified that the expectation of a contingency materializing is not a factor in determining if an interest in land is created.

The appeal was allowed, and the relevant sections of the 1981 Agreement were declared void.

The court, on its own motion, considered dismissing the plaintiff's action under sub-rule 2.1.01 of the Ontario Rules of Civil Procedure for being frivolous, vexatious, and an abuse of process.

Despite being given notice and a 15-day period to provide written submissions, the plaintiff failed to respond.

Consequently, the action was dismissed.

The plaintiff, 2Source Manufacturing Inc., sued the defendants for fraudulent misrepresentation, deceit, conspiracy, unlawful interference with economic relations, and breach of the Competition Act, alleging they were misled about the renewal of a Supply Agreement.

The defendants moved for summary judgment to stay the action, relying on a forum selection clause (FSC) in the Supply Agreement that mandated New York courts.

The court interpreted the FSC broadly to cover claims "in pith and substance contractual," even if framed in tort or statute.

It found 2Source's claims to be contractual in nature, arising from the performance, termination, or renewal of the Supply Agreement.

The court also found no "strong cause" to deny the stay, as 2Source failed to demonstrate fraud, inability of the New York court to hear the claim, or public policy frustration.

The motion for a stay of proceedings was granted.

The defendants moved to quash the plaintiffs' appeal from a Master's decision, arguing that the Superior Court of Justice lacked jurisdiction and that the appeal should be heard by the Divisional Court.

The plaintiffs contended that the Courts of Justice Act was inapplicable due to their Indigenous status and sought an adjournment, which was denied.

The court granted the defendants' motion, quashing the appeal on jurisdictional grounds, and awarded full indemnity costs to the successful defendants due to the unmeritorious nature of the appeal route chosen by the plaintiffs.

The defendants brought a motion to strike various portions of the plaintiff's statement of claim, which alleged misleading advertisement, misleading description under the Trade-marks Act, tort of unlawful means, copyright infringements, and conspiracy.

The court considered whether the pleadings disclosed a reasonable cause of action under Rule 21.01(1)(b) and whether they were scandalous, frivolous, or vexatious under Rule 25.11.

The court struck certain paragraphs related to direct statutory breaches and s. 36(1) of the Competition Act and s. 7(d) of the Trade-marks Act (with leave to amend for the latter two), but preserved allegations concerning false and misleading representations, the tort of unlawful means, and conspiracy, finding them relevant and sufficiently pleaded.

The applicant, Best Theratronics Limited, sought leave to appeal to the Divisional Court from an interlocutory order denying an injunction that would compel the respondent, Canadian Nuclear Laboratories Limited (CNL), to continue supplying irradiated cobalt.

The motion judge had applied the three-part test for injunctions, finding a serious issue to be tried but concluding that irreparable harm was not substantiated and the balance of convenience favoured CNL due to the applicant's substantial payment arrears.

The court, applying Rule 62.02(4) of the Rules of Civil Procedure, found no conflicting decisions on the issues pertaining to injunctions in supply agreements and no good reason to doubt the correctness of the motion judge's discretionary order.

The court also noted the applicant's failure to expedite the pending arbitration.

Consequently, the motion for leave to appeal was dismissed.

The self-represented plaintiff brought a motion seeking leave to amend a notice of action and extend the time to file and serve a statement of claim arising from alleged medical negligence following a bicycle accident.

The plaintiff had failed to file a statement of claim within the time required by the Rules of Civil Procedure and sought relief after receiving an administrative dismissal notice.

The court considered the principles governing extensions of time under the Rules of Civil Procedure, including whether the extension would advance the just resolution of the dispute without causing prejudice to the defendants.

Despite the delay and the potential expiry of limitation periods, the court found that an extension would not cause unfair prejudice and would promote the just resolution of the dispute.

The court granted extensions to file and serve the statement of claim while leaving limitation and statutory notice issues to be determined later.