Sharon M. Addison

The plaintiff moved to issue a Certificate of Pending Litigation (CPL) on a commercial property following a failed real estate transaction.

The defendant opposed the motion.

The court applied the test for CPLs, considering factors such as the uniqueness of the land, the adequacy of damages as a remedy, and the harm to each party.

The court found that the property was not unique, damages were a viable alternative remedy, and the plaintiff's use of a shell corporation was not a factor.

The motion for a CPL was denied, and the existing Caution on Title was ordered to be removed.

The defendant landlord brought a motion for summary judgment to dismiss the plaintiff tenant's claim for negligent misrepresentation regarding building occupancy levels prior to signing a commercial lease.

The defendant argued the claim was statute-barred and precluded by an entire agreement clause.

The court dismissed the motion, finding a genuine issue requiring a trial regarding when the plaintiff discovered the loss or damage for limitation purposes.

The court also declined to grant summary judgment based on the entire agreement clause, reasoning that doing so while the defendant's counterclaim for rent arrears proceeded to trial risked inconsistent findings and substantive injustice.

The plaintiffs brought a motion for leave to amend their statement of claim to add a new corporate defendant and to consolidate two related actions.

The proposed defendant opposed the motion, arguing the claim was statute-barred under the Limitations Act, 2002.

The court applied the discoverability doctrine and found that the plaintiffs did not know, and ought not to have known, the true identity of the testing laboratory until they received a letter from defence counsel in 2011.

The court granted leave to add the defendant, concluding the claim was not clearly statute-barred, but allowed the defendant to raise the limitation defence at a later stage.

The appellant landlord appealed a decision allowing the respondent commercial tenant to exercise a lease renewal option despite being in arrears.

The tenant had purported to exercise the option, but the landlord argued the option was void for uncertainty and that the tenant was in default of rent-related covenants.

The Court of Appeal held that while the renewal option was not void for uncertainty, the tenant was in default of its obligation to pay additional rent when due.

As the tenant failed to meet the precondition of paying all rent when due, the purported exercise of the renewal option was invalid and unenforceable.

The appeal was allowed and the tenant was ordered to vacate the premises.

The plaintiffs brought a motion seeking orders compelling a lawyer for the defendant to answer questions refused on cross-examination and granting leave to file additional affidavits in support of a pending motion to amend the statement of claim and add a proposed defendant.

The refusals were based on solicitor-client privilege.

The court held that two questions seeking factual information did not infringe solicitor-client privilege and must be answered, while a third question had already effectively been answered.

Applying Rules 1.04 and 39.02(2) of the Rules of Civil Procedure, the court granted leave to file three additional affidavits responding to issues raised on cross-examination and addressing limitation concerns relating to the discoverability of the plaintiffs’ claims.

The plaintiff sought summary judgment to enforce payment obligations under a promissory note arising from a share purchase agreement and to enforce a personal guarantee.

The defendants argued that the payment schedule was triggered by completion of a later adjustment process relating to the purchase price rather than the original closing date of the transaction.

The court interpreted the promissory note in light of the share purchase agreement and amendment agreement and held that the payment schedule was triggered by the closing date of the share purchase, not the later adjustment process.

The court further held that the individual guarantor was jointly and severally liable under the guarantee and indemnity.

Summary judgment was granted for the outstanding amounts owing under the promissory note and an additional balance relating to a loan payable to the parent company.

The defendants brought a motion seeking a stay of a summary judgment proceeding concerning unpaid promissory notes, arguing the dispute must proceed to arbitration under a share purchase agreement.

The court considered whether the dispute fell within arbitration provisions relating to purchase price adjustments and general arbitration clauses.

It held that the contractual adjustment process had already concluded when the parties’ external accountants resolved the working capital dispute.

As no live issue remained for arbitration, and given delay and attornment to the court’s jurisdiction, the court declined to stay the action.

The court confirmed jurisdiction to hear the summary judgment motion regarding the promissory notes.

The appellant abandoned its appeal following the Supreme Court of Canada's decision in Crystalline Investments Ltd. v. Domgroup Ltd. The Court of Appeal dismissed the appeal as abandoned but exercised its discretion under Rule 61.14(3) of the Rules of Civil Procedure to award no costs.

The Court of Appeal issued a costs endorsement following an appeal.

The parties agreed that costs for both the appeal and the original application should be awarded on a partial indemnity basis.

The court awarded the appellants costs of the original application fixed at $3,210 plus disbursements and GST, and costs of the appeal fixed at $6,500 inclusive of disbursements and GST.

The landlord appealed a judgment declaring it had no right to terminate a commercial lease under a clause based on the tenant's gross revenue.

The application judge had granted the declaration on an application for relief from forfeiture, finding the landlord acted in bad faith and failed to prove the facts necessary to invoke the termination clause.

The Court of Appeal allowed the appeal and set aside the judgment, holding that relief from forfeiture is not available for a contractual right of termination that is not based on default or breach.

The Court further held that the tenant bore the burden of proving the landlord was not entitled to exercise the termination right, and that the absence of good faith does not preclude a commercial landlord from exercising its contractual rights.

The landlord, Clarica, drew $677,979.24 on an irrevocable letter of credit provided by the bankrupt tenant, Lava, as security for a commercial lease.

The receiver for Lava applied for an order requiring Clarica to account for the funds drawn in excess of its statutory entitlement under the Commercial Tenancies Act and the Bankruptcy and Insolvency Act.

The application judge granted the order.

On appeal, the Court of Appeal reversed the decision, holding that under the principle of the autonomy of letters of credit, the funds paid by the bank were the bank's property, not the bankrupt tenant's.

Therefore, the receiver had no legal right to recover the funds from the landlord.

The landlord consented to the assignment of a commercial lease to an assignee, with the original tenant remaining jointly and severally liable.

An interim receiver was later appointed for the assignee under the Bankruptcy and Insolvency Act, with the power to terminate existing agreements.

The receiver purported to terminate the original lease, which would have freed the original tenant from liability.

The Court of Appeal held that the receiver's power to terminate agreements was limited to those in furtherance of the insolvency proceedings.

The receiver had the authority to terminate the assignment agreement, but not the original lease between the landlord and the original tenant.