Greg Murdoch

The seller of a farm property sued after the buyer failed to close a commercial real estate transaction involving land, buildings, and natural gas wells.

The court held that the environmental warranty in the agreement of purchase and sale did not extend to the gas wells and, in any event, was not breached and constituted a warranty rather than a condition, requiring the buyer to close and sue for damages if necessary.

The court further held that the 'as it is, where it is' clause was binding, the buyer was deemed to have admitted inability or unwillingness to close through an unanswered request to admit, and relief against forfeiture was not available because retention of the 14% deposit was not unconscionable.

The seller had reasonably mitigated its loss and recovered carrying and resale-related damages of $287,296.57, subject to credit for the forfeited $250,000 deposit.

The buyer's counterclaim against the realtor and the seller, and the seller's crossclaim against the realtor and brokerage, were both dismissed.

The plaintiff, 2506045 Ontario Inc., brought a motion for summary judgment against the defendants, Jeffrey Thomas Gaskell and Atilla Rahmaty, for breach of a commercial lease and indemnity agreement.

The tenant, Rahmaty, and indemnifier, Gaskell, defaulted on rent payments for a Mediterranean restaurant premises.

The plaintiff terminated the lease and secured a new tenant within three months.

The defendants disputed the quantum of damages, asserting the plaintiff failed to mitigate losses and that the lease was unconscionable or vague.

The court found that the plaintiff took reasonable steps to mitigate damages and that the defendants failed to provide sufficient evidence to the contrary.

The court also rejected the arguments of unconscionability and vagueness, noting the defendants' active negotiation of lease terms.

Summary judgment was granted in favour of the plaintiff for $223,749 plus prejudgment interest.

This endorsement determines the costs of a previous motion where Built By Engineers Construction Inc. (BBE) successfully defended against Coronation Medical Plaza Inc.'s (Coronation) motion to discharge a construction lien.

BBE sought partial indemnity costs.

The court considered factors under Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, as well as the principles from Boucher v. Public Accountants Council for the Province of Ontario.

The court found a fair and reasonable award of costs to be $22,000, inclusive of HST and disbursements, payable by Coronation to BBE.

Coronation Medical Plaza Inc. brought a motion under s. 47 of the Construction Act to discharge a construction lien registered by Built By Engineers Construction Inc., arguing the lien was not registered in time.

The court determined that the former Construction Lien Act applied as the contract was entered into before July 1, 2018.

The court found that there were significant factual disputes, particularly regarding whether certain work was removed from the contract scope, the reason for delayed invoicing, and whether later work related to defects or separate contracts.

The court declined to exercise enhanced fact-finding powers under Rule 20, as these are not available on a s. 47 motion, and found that the disputed issues required credibility assessments best made at trial.

Consequently, the motion to discharge the lien was dismissed due to the existence of triable issues regarding the lien's timeliness.

The plaintiff moved for summary judgment for unpaid invoices for software development services.

The defendant requested an adjournment to pursue mediation pursuant to a dispute resolution clause in their agreement.

The court denied the adjournment, finding the defendant failed to identify any specific dispute to mediate and presented no evidence to challenge the plaintiff's claim.

Finding no genuine issue for trial, the court granted summary judgment in favour of the plaintiff for $568,190.48 USD plus 18% interest.

The applicant sought an order requiring the respondent to submit to arbitration regarding a dispute over the supply and installation of guardrails for a condominium project.

The parties had initially agreed to arbitrate but failed to sign a formal agreement due to disagreements over the scope of discovery.

After a tolling agreement was signed but not received by the applicant due to an email error, the applicant commenced a breach of trust action.

The respondent then argued the arbitration agreement was revoked and sought to resolve all issues in litigation.

The court found that a valid, unwritten arbitration agreement existed and had not been revoked, ordering the parties to proceed to arbitration.

The applicant purchased a contaminated property from the respondent.

The agreement of purchase and sale required the respondent to remediate the property to specific Ministry of Environment standards using in situ injections.

After several unsuccessful injection attempts, the respondent's experts proposed a Site Specific Risk Assessment (SSRA) instead of further injections or excavation.

The applicant sought specific performance of the remediation or funds to complete it, while the respondent sought a declaration that an SSRA satisfied its obligations.

The court found insufficient evidence regarding current contamination levels, the feasibility of excavation, and the impact of an SSRA on property value, and ordered the parties to obtain further expert evidence using trust funds before making a final determination.

The individual defendants brought an urgent motion to stay the execution of a summary judgment granting the plaintiff possession of their personal residences following a corporate loan default.

The defendants argued the plaintiff should first realize on the bankrupt corporation's assets.

The court found it had inherent jurisdiction to grant a stay but declined to do so, ruling the motion was an impermissible collateral attack because the defendants failed to seek this relief during the original summary judgment motion.

The court also found the defendants failed to prove the corporate assets had sufficient value to satisfy the debt.

The motion was dismissed.

The moving parties brought four motions in the context of three actions arising from a corporate reorganization of family-owned companies.

Three motions sought to remove Sorbara, Schumacher, McCann LLP as counsel of record due to an alleged conflict of interest, and the fourth motion sought an order for consolidation, case management, and/or trial together of the three actions.

The court dismissed the motions to remove counsel, finding no risk of misuse of confidential information or impaired representation, and that disqualification was not necessary to maintain the repute of justice given the history of separate representation during contentious negotiations.

The court granted the motion for the actions to be tried together and for the appointment of a case management judge.

A contested passing of accounts involving a guardian of property appointed to manage the finances of an incapacitated parent.

The applicant challenged substantial cash withdrawals and legal expenses claimed by the guardian.

The court found the accounts wholly inadequate and concluded that the guardian had improperly withdrawn more than $120,000 from the estate and failed to maintain proper records or explanations.

The court rejected post‑hearing attempts to introduce new evidence and denied the guardian any compensation.

The guardian was ordered to repay the improperly withdrawn funds and personally pay the applicant’s costs.

The appellant brought an action for foreclosure on a mortgage given by the respondents as security for a guarantee of their son's company's debts.

The trial judge granted judgment for the mortgage amount but allowed the respondents' counterclaim for breach of fiduciary duty based on alleged collateral assurances, awarding a set-off.

The Court of Appeal allowed the appeal, holding that while the trial judge correctly found the guarantee valid and collateral assurances inadmissible to contradict it, he erred in finding those same assurances created a fiduciary relationship.

The counterclaim was dismissed and costs awarded to the appellant.