Laura Van Soelen

Multiple purchasers of commercial condominium units alleged misrepresentation and overcharging by the developer and sought interlocutory relief preventing the developer from disposing of its remaining assets pending trial.

The moving parties argued the developer had limited assets and that dissipation would frustrate recovery of any judgment.

The court held that pre‑judgment restraint of assets is an extraordinary remedy requiring a strong prima facie case, evidence of asset dissipation outside the ordinary course of business, and proof of irreparable harm.

The evidence did not establish that the developer was disposing of assets improperly or that irreparable harm would result.

The motion to restrain disposition of assets was dismissed.

Following the respondents’ successful defence of a motion for injunctive and related relief, the court was required to fix costs after the parties failed to agree.

The respondents sought substantial indemnity costs exceeding $114,000, alleging that the applicants’ conduct was reprehensible and that a settlement offer justified enhanced costs under Rule 49.

The court held that the settlement offer was not timely and that the applicants’ conduct did not meet the high threshold for substantial indemnity costs.

Applying the factors in Rule 57.01, the court concluded the motion was relatively straightforward and that the respondents’ use of multiple counsel was unnecessary.

Costs were fixed on a partial indemnity basis at $50,000 inclusive of fees, disbursements, HST, and earlier costs awarded in the cause.

The applicant sought an interlocutory injunction preventing a neighbouring condominium developer from installing translucent panels on the west wall of a nearly completed building.

The applicant alleged the design breached a negative covenant allegedly agreed upon during planning approval discussions that the wall would contain no windows.

Applying the test from RJR-MacDonald Inc. v. Canada (Attorney General), the court held the applicant failed to establish a serious issue to be tried and provided no evidence of irreparable harm, particularly in the absence of expert evidence regarding impacts on future redevelopment or privacy.

The court also found the balance of convenience strongly favoured the developer because construction was substantially complete and the applicant had delayed unreasonably in bringing the motion.

The delay and resulting prejudice supported the equitable defence of laches.