K. Sherkin

The plaintiffs, purchasers of pre-construction condominium and freehold units, brought motions for certificates of pending litigation (CPLs) against the development property after the original developer became insolvent and transferred the property to a new developer.

The purchase agreements contained non-registration clauses prohibiting the registration of CPLs.

The court found that while there was a triable issue regarding an interest in land based on constructive trust, the non-registration clauses and the equitable factors from Dhunna—including the lack of uniqueness of the property, the adequacy of damages, and the prejudice to new innocent purchasers—weighed heavily against granting the CPLs.

The motions were dismissed.

The plaintiffs successfully obtained Mareva injunctions and certificates of pending litigation against the defendants in a prior decision.

They sought substantial indemnity costs of $306,793.48 or partial indemnity costs of $208,768.58.

The court found that the defendants' lack of transparency required the plaintiffs to incur significant costs to prove their case.

The court awarded the plaintiffs partial indemnity costs fixed at $175,000, payable forthwith, leaving open the possibility for the trial judge to increase the award to substantial indemnity if the plaintiffs succeed at trial.

The plaintiffs brought a motion for a Mareva injunction and Certificates of Pending Litigation against the defendants, alleging they perpetrated a Ponzi scheme involving mortgage and securities fraud.

The court found a strong prima facie case of fraud, oppression, and conspiracy, noting that tens of millions of dollars were raised without proper compliance and were unaccounted for.

The court inferred a strong risk of dissipation of assets based on the defendants' conduct, including the listing of a $4 million house and suspicious property transfers.

The motion for the Mareva injunction and CPLs was granted.

The moving party, Pacific Hardwood Limited, was entirely successful on a motion to discharge a construction lien registered by the responding party, Dolvin Mechanical Contractors Ltd. The parties could not agree on costs and filed written submissions.

The court found that the responding party had improperly registered a $2.3 million lien against the moving party's property without a contract and failed to perfect it.

Due to the responding party's conduct in refusing to release the lien and unnecessarily delaying the motion, the court awarded costs to the moving party on a substantial indemnity basis in the amount of $23,493.50.

Pacific Hardwood Limited, a non-party owner of two condominium units, brought a motion to discharge a construction lien registered by Dolvin Mechanical Contractors Ltd. against its units.

Dolvin had contracted with the developer prior to condominium registration but registered its lien after Pacific purchased the units, without naming Pacific as an owner.

The court granted the motion, finding that Dolvin had no lien rights against Pacific, failed to properly preserve and perfect its lien against Pacific, and that the conveyance to Pacific was not void under section 80(2) of the Construction Lien Act.

During a Commercial List case conference in a complex multi‑party commercial dispute, the court addressed ongoing discovery and production issues among numerous defendants and third parties.

The court directed timelines for outstanding undertakings and warned that unresolved production disputes would require formal motions before a Master.

The court emphasized counsel’s obligation to cooperate in resolving discovery issues and indicated that failure to do so could result in elevated or full indemnity costs.

Additional guidance was provided regarding potential motions for non‑party examinations and production of partnership financial statements.

The court scheduled a further case conference and noted that the matter would not proceed to trial as early as previously anticipated due to outstanding discovery issues.

During a Commercial List case management conference in a complex multi‑party securities and investment dispute, the court issued procedural directions governing ongoing litigation steps.

The court addressed the potential settlement motion involving certain defendants, confirmed the status of examinations for discovery, and ordered timelines for answering undertakings.

The judge provided structured options for handling refusals motions and warned that costs may be assessed per refusal to discourage unnecessary motions.

Additional directions were given regarding the timing of expert reports, a possible future summary judgment motion, and scheduling of the next case management conference.

In a Commercial List proceeding, defence counsel attempted to schedule a 9:30 a.m. attendance to arrange a motion to set aside a noting in default, but plaintiff’s counsel refused to consent to any scheduling and failed to attend the appointment.

The court addressed the obligations of counsel practicing on the Commercial List, emphasizing the importance of cooperation, communication, and common sense in advancing proceedings efficiently.

The judge criticized the use of counsel’s personal scheduling conflicts as a justification to avoid prompt 9:30 attendances and found the plaintiff’s counsel’s conduct obstructive to the scheduling process.

The court restricted the plaintiff from taking further procedural steps without approval and ordered a peremptory case conference.

The decision reiterates that counsel cannot rely on their calendars to impede the progress of Commercial List matters.