Malik Martin

The applicant vendor brought an application for a declaration that it was entitled to retain the respondent purchaser's deposit after the purchaser failed to close a pre-construction home purchase.

The purchaser brought a cross-motion to stay the application in favour of arbitration, relying on the arbitration clause in the Tarion Addendum and the deemed arbitration clause in the Ontario New Home Warranties Plan Act.

The court dismissed the cross-motion, finding that the dispute did not arguably fall within the scope of the arbitration agreement, as the purchaser had no arguable right to terminate the agreement under the early termination conditions.

The court also found that the competence-competence principle did not require deferral to an arbitrator, as the jurisdictional challenge involved a superficial examination of the documentary record.

The defendant purchaser brought a motion to stay the plaintiff builder's action for breach of an agreement of purchase and sale in favour of arbitration.

The dispute arose from an aborted real estate transaction for a pre-construction home, where the defendant alleged the plaintiff breached early termination conditions under the Tarion Addendum.

Relying on a companion case, the court found that the dispute arguably fell within the arbitration clause and applied the competence-competence principle.

The motion was granted, and the action was stayed to permit the arbitration to proceed.

The plaintiff vendor commenced an action for specific performance or damages after the defendant purchaser failed to close on a pre-construction home.

The purchaser sought to stay the action in favour of arbitration, alleging the vendor breached the agreement by failing to complete the early termination conditions in the Tarion Addendum.

The vendor brought a motion for summary judgment.

The court held that the dispute over the early termination conditions and the applicability of the arbitration clause involved contested facts that should be resolved by an arbitrator under the competence-competence principle.

The action was stayed in favour of arbitration.

The appellant developer appealed an arbitral award that allowed the respondent purchasers to terminate their agreements of purchase and sale and receive a refund of their deposits.

The arbitrator had found that the developer's failure to check a yes/no box in the Tarion Addendum regarding Early Termination Conditions constituted a breach entitling the purchasers to terminate.

The Superior Court of Justice allowed the appeal, finding the arbitrator's decision unreasonable.

The court held that the failure to check the box was a minor, technical breach that did not justify termination, especially since the agreements clearly contained no Early Termination Conditions.

The arbitral award was set aside and the matter remitted to the arbitrator.

The appellant, former CEO and chairman of Sino-Forest Corporation (SFC), appealed a trial judgment awarding damages of $2.627 billion plus $5 million in punitive damages for fraud and breach of fiduciary duty.

The appellant argued that the litigation trust lacked standing to pursue claims that overlapped with class actions, that the damages award created double recovery risks, and that the transfer of assets constituted an election barring the claim.

The Court of Appeal upheld the trial judgment, finding that the litigation trust held separate and distinct corporate causes of action from those of individual shareholders and noteholders in the class actions, that the damages award was properly calculated based on SFC's losses, and that no election doctrine applied.

The plaintiff, Eyelet Investment Corp., sought a court declaration that an arbitration initiated by the defendants (purchasers of residential properties) was invalid, arguing that the vendors had not participated in the arbitration process.

The defendants had initiated arbitration claiming termination of agreements of purchase and sale due to Eyelet's alleged failure to provide notice of non-waivable early termination conditions (ETCs) under the Tarion addendum, seeking a refund of deposits.

The court considered whether the arbitration agreement applied to the dispute and whether to defer to the arbitrator's jurisdiction.

The court found that the arbitration agreement applied broadly to the dispute, including related tort claims, and affirmed the principle of competence-competence, deferring the matter to arbitration.

The defendant brought a motion for a commission to take evidence in Hong Kong for himself and five non-party witnesses.

The plaintiff opposed on grounds of jurisdiction, the test under Rule 36, and the open court principle.

The court granted the motion for the non-party witnesses, with the trial judge acting as commissioner, finding it necessary for a fair trial as these witnesses were not compellable in Ontario.

However, the motion for the defendant's own evidence to be taken on commission was dismissed, as he failed to demonstrate a sufficient reason for not attending in Toronto, given his status as a party who had attorned to the court's jurisdiction and the significant costs involved.

The court also found that the commission evidence process, with the trial judge acting as commissioner, did not offend the open court principle or jurisdictional boundaries.

The defendant, Allen Tak Yuen Chan, brought a motion to permit the liquidation and transfer of funds from Hong Kong bank accounts, frozen by a worldwide Mareva injunction, to pay for his legal fees and disbursements in defending the proceedings.

The plaintiff opposed, arguing the defendant had other available funds and was engaged in fraudulent conduct.

The court applied the four-factor test from *Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology*, finding that the defendant had met the test for accessing non-proprietary assets to cover reasonable legal costs.

The motion was granted, subject to the Hong Kong Court's decision regarding its own non-dissipation order over the same funds.