H. Book

The defendants brought a motion to dismiss the plaintiff's action for failing to timely pay prior costs awards, or alternatively, for an order requiring the plaintiff to post security for costs.

The court declined to dismiss the action, noting the costs orders had since been paid and the plaintiff's conduct was not contumelious.

The court also dismissed the request for security for costs, finding the defendants failed to prove the corporate plaintiff had insufficient assets in Ontario and that the defendants' delay in bringing the motion rendered such an order unjust.

Commercial List application concerning removal of a limited partnership's general partner for alleged breaches of fiduciary duty and breaches of the limited partnership agreement.

The court found the general partner entered into related party agreements without limited partner approval, co-mingled partnership funds, and used partnership assets for personal expenses and its own legal fees.

The court upheld special resolutions removing the general partner and appointing a replacement, emphasizing the fiduciary character of the general partner's role and the limited partners' loss of trust and confidence.

A cross-application for relief from forfeiture was dismissed, and ancillary declaratory and accounting relief was granted.

The applicant sought declarations that the respondent had no right to terminate a commercial agreement of purchase and sale after the applicant failed to pay a second deposit on time, or alternatively relief from forfeiture.

The court held that the applicant did breach the agreement by not paying the deposit contemporaneously with the respondent taking possession under a related lease, but the breach was not material under the five-factor substantial failure of performance analysis.

The respondent's purported termination was therefore itself a breach.

However, the court refused to grant specific performance because the land was held only for investment and had already been flipped for a projected profit, making damages an adequate remedy, and also declined relief from forfeiture.

Costs were awarded to the applicant.

The plaintiff landlord sought summary judgment for approximately $800,000 in alleged unpaid rent from its commercial tenant and guarantor, arising from the tenant paying only 50% of minimum rent after opening its store before certain parking spaces were provided.

The dispute turned on whether a lease amending agreement implicitly removed the tenant’s contractual right to pay reduced rent when opening conditions were unmet.

The court applied principles of contractual interpretation emphasizing objective intention derived from the text and surrounding circumstances.

It held that the amendment concerning alternative parking did not modify the tenant’s right under the original lease to pay 50% rent until the required parking spaces were delivered.

The landlord’s claim for back rent was dismissed and the related summary judgment motion by the landlord’s former lawyers seeking dismissal of the negligence claim against them was also dismissed.

The case management judge issued directions regarding the scheduling and sequencing of outstanding issues in a complex bankruptcy proceeding.

The court ordered written submissions for issues concerning the disclosure of the Trustee's report and the release of funds, while deferring other matters, including examinations and discharge hearings, until the trial judge releases supplementary reasons and determines contempt sentencing.