Julia E. Schatz

The appellant tenant appealed a summary judgment ordering it to pay over $1.1 million in alleged profits earned from a commercial sublease to the respondent landlord.

The motion judge had interpreted the lease to preclude the tenant from deducting the rent it paid for unusable open-air space on the sublet floor, and found the claim was governed by the 6-year limitation period under the Real Property Limitations Act.

The Court of Appeal allowed the appeal, holding that the motion judge's interpretation ignored the factual matrix and resulted in a commercial absurdity.

The tenant was entitled to deduct the full rent paid for the floor, meaning it incurred a $2.6 million loss, not a profit.

The Court also held that the obligation to remit profit was not 'rent', and therefore the 2-year limitation period under the Limitations Act, 2002 applied.

The plaintiffs brought a motion to enforce a $200,000 settlement under Rule 49.09, arguing they had accepted a 2016 offer from the defendants in 2020.

The court found that while the 2016 letter contained a valid Rule 49 offer that remained open for acceptance, the plaintiffs' purported acceptance in 2020 introduced new terms regarding mutual releases and costs involving parties not represented by the offeror's counsel.

Consequently, the purported acceptance was a counter-offer, and no agreement on essential terms was reached.

The motion to enforce the settlement was dismissed.

The appellant appealed a decision of the Superior Court of Justice dismissing an application.

The Court of Appeal reversed the application decision.

As a result, the costs order awarded to the respondent in the amount of $45,000 was set aside, and costs in the application were awarded to the appellant on a partial indemnity basis in the same amount, inclusive of HST and disbursements.

The appellant purchased a cottage property through an online auction conducted by the respondent auction company.

After the high bid was accepted and a purchase and sale contract executed, the sellers refused to close.

The appellant subsequently negotiated a second purchase and sale contract directly with the sellers and the sale closed.

The auction company claimed entitlement to the buyer's premium from the appellant's escrow deposit, arguing the two contracts were effectively one continuous agreement.

The Court of Appeal allowed the appeal, holding that the buyer's premium was not payable when the sale failed to close due to the seller's default, and that the subsequent direct purchase did not trigger the obligation to pay the premium under the auction contract.

This partial judgment addresses cross-applications between the Fenwicks (purchasers) and Concierge Auctions ULC (auctioneer) regarding a $430,000 buyer's premium held in court.

The dispute arose after a real estate auction failed to close due to vendor mortgage issues, leading the Fenwicks to enter a second agreement to purchase the property directly from the vendors.

Concierge claimed the buyer's premium, arguing the second sale was an extension of the first, while the Fenwicks contended the original sale's failure negated Concierge's entitlement.

The court found the two agreements constituted one continuous transaction, entitling Concierge to the buyer's premium plus HST and pre-judgment interest, and dismissed claims of unjust enrichment and quantum meruit.

This partial judgment addresses cross-applications between the Fenwicks (purchasers) and Concierge Auctions ULC (auctioneer) regarding a $430,000 buyer's premium held in court.

The dispute arose after a real estate auction failed to close due to vendor mortgage issues, leading the Fenwicks to enter a second agreement to purchase the property directly from the vendors.

Concierge claimed the buyer's premium, arguing the second sale was an extension of the first, while the Fenwicks contended the original sale's failure negated Concierge's entitlement.

The court found the two agreements constituted one continuous transaction, entitling Concierge to the buyer's premium plus HST and pre-judgment interest, and dismissed claims of unjust enrichment and quantum meruit.

A case conference was held regarding an application by a purchaser for the return of a $430,000 deposit from a failed real estate auction, and a related action by the auctioneer for its commission.

The court ordered a consent interpleader allowing the auctioneer's counsel to pay the deposit into court.

The court also set a timetable for a cross-application by the auctioneer and stayed the related action pending the outcome of the applications.

The plaintiff moved for judgment against a defendant who had been noted in default after his statement of defence was struck and he failed to participate in the litigation process.

The action arose from a failed agreement of purchase and sale for a ski resort property valued at $16 million, where the purchasing corporation and its shareholders failed to complete the transaction.

The court granted leave under Rule 48.04(1) of the Rules of Civil Procedure to bring the motion despite the matter having been set down for trial, finding a substantial and unexpected change in circumstances due to the defendant’s post‑trial-setting default and non-participation.

Because the defendant was noted in default, the allegations in the statement of claim were deemed admitted.

The court accepted the plaintiff’s appraisal evidence and awarded damages for breach of contract and misrepresentation.

The defendants brought motions seeking to strike or dismiss the plaintiff’s summary judgment motion and for security for costs in a commercial dispute arising from an alleged breach of an agreement of purchase and sale for resort property.

The plaintiff alleged breach of contract, fraudulent misrepresentation, slander of title, and conspiracy relating to a failed $16 million transaction.

The court held that the action involved complex factual issues and significant credibility disputes, making it unsuitable for determination by summary judgment at an early stage.

The court further found that the corporate plaintiff failed to establish impecuniosity with sufficient evidentiary detail and that there was no proven causal link between the defendants’ conduct and the plaintiff’s financial distress.

Security for costs was therefore ordered while the summary judgment motion was stayed pending further steps in the litigation.

Several defendants brought a motion seeking removal of the plaintiff’s law firm on the basis of an alleged conflict of interest.

A partner in the firm was both a potential witness and had a substantial financial interest in the plaintiff company through share ownership and mortgage financing.

The court considered the governing principles for disqualification of counsel, including the framework in MacDonald Estate v. Martin and the discretionary factors relating to a lawyer-witness scenario set out in Essa (Township) v. Guergis.

While the partner was likely to be a material witness and had a financial stake aligned with the plaintiff, the court concluded there was no real risk to the proper administration of justice and that the plaintiff’s right to counsel of choice should prevail.

The motions to remove counsel were dismissed.

The moving plaintiff sought to set aside a registrar's dismissal for delay and obtain leave to file a substantially expanded amended statement of claim in contamination litigation.

Applying a contextual approach under rule 37.14 and related jurisprudence, the court found the delay had adequate explanation in light of counsel changes, document-production disputes, and evolving contamination evidence.

The court also held the proposed amendments did not plead a new cause of action, and alternatively found limitation issues unsuitable for determination on a pleadings motion.

The dismissal order was set aside, leave to amend was granted subject to limitation defences, costs were fixed against one responding party, and costs as between the plaintiff and the railway were reserved to the trial judge.

In six Ontario libel actions tied to statements posted by a U.S. company and later republished in Ontario newspapers, the appellants argued Ontario lacked jurisdiction or should defer to Illinois.

The Court held that defamation was presumptively connected to Ontario because publication occurred there through reading, downloading, and republication.

It concluded the appellants did not rebut jurisdiction and did not prove Illinois was clearly the more appropriate forum under forum non conveniens.

The appeal was dismissed with costs.

The respondent, Conrad Black, brought libel actions in Ontario against the directors and advisors of a U.S. company for statements posted on the company's website.

The appellants moved to stay the actions, arguing Ontario lacked jurisdiction or was forum non conveniens.

The motion judge dismissed the motion.

On appeal, the Court of Appeal applied the Van Breda test and upheld the motion judge's finding that the alleged tort was committed in Ontario, establishing a presumptive real and substantial connection.

The court found no unfairness in requiring the appellants to defend the actions in Ontario, as the statements were targeted at Canadian media and the respondent's reputation was damaged there.

The appeal was dismissed.

The appellant appealed a decision holding that the respondent acquired title to a 50-foot commercial sign located on the appellant's retained land when the respondent purchased an adjacent motel property.

The Court of Appeal found that the application judge did not err in concluding the sign was included in the sale as a chattel, given the broad definition in the Agreement of Purchase and Sale and the evidence of the transaction lawyers.

The Court further held that the easement for ingress and egress was intended to permit the placement and maintenance of the sign.

The appeal was dismissed, but the judgment was varied to declare that the easement permitted the sign's location.