Mark A. Russell

The Court of Appeal for Ontario heard an appeal from a summary judgment order in a real estate dispute.

The appellants (purchasers) argued that the motion judge's reasons were inadequate for meaningful appellate review, specifically regarding the breach of the Agreement of Purchase and Sale (APS), the improvidence of the subsequent sale, and the enforceability of a 20% contractual pre-judgment interest rate.

The Court of Appeal agreed that the motion judge's reasons were insufficient, as they merely summarized positions and stated conclusions without providing insight into the reasoning or factual findings.

The plaintiff, Galaxy Communities Inc., initiated a construction lien action against the owners and a financial institution.

Galaxy failed to comply with court orders and did not appear for trial, resulting in a non-suit of its claim.

The court proceeded with the undefended counterclaim brought by the owners, alleging breach of contract due to deficient construction work, unapproved design changes, and delayed performance.

The court found the contractor in breach and awarded the owners damages for rectification costs, project management fees, and delay-related expenses.

The appellant, 9383859 Canada Ltd., failed to comply with orders to post security for costs for two groups of respondents (the Ramesh Respondents and the Saeed Respondents).

These respondents brought motions under Rule 61.06(2) of the Rules of Civil Procedure to dismiss the appeal.

The court denied the appellant's request for an adjournment and dismissed the appeals, finding no valid excuse for non-compliance and that the original security for costs orders were properly made due to the appellant's insufficient assets and weak grounds of appeal.

The court declined to award costs personally against Sandeep Singh, the appellant's sole shareholder and director, finding his litigation strategy did not amount to an abuse of process.

The appellant sought to overturn a security for costs order issued by a motion judge, arguing that two deposits related to a purchase agreement and an assignment should satisfy the security concerns.

The Court of Appeal dismissed the appeal, finding that the appellant's entitlement to these funds was vigorously challenged and formed part of the underlying litigation, thus providing no basis to deny the security for costs claim.

The court affirmed the motion judge's proper application of legal principles.

The defendant, Law Society of Ontario, brought a motion to compel the plaintiff, Rosemary Cremer, to answer questions refused during her examination for discovery and to reattend for further discovery.

The plaintiff had sued the Law Society for damages, alleging breach of fiduciary duty, negligence, and other torts related to the handling of trust funds.

The court found the questions relevant to the pleadings, particularly concerning the Law Society's justification for its actions as trustee and the plaintiff's role as bookkeeper.

The court rejected the plaintiff's argument of undue prejudice based on proportionality.

The motion was granted, ordering the plaintiff to answer the specified questions and reattend discovery, with costs awarded to the defendant.

This is a costs endorsement following an appeal where the appellants, though not fully successful on the merits, significantly reduced the judgment amount against them.

The court considered the parties' respective cost submissions and awarded the appellants partial indemnity costs of $10,000, inclusive of disbursements and taxes, while denying the respondent's request for costs.

The court did not interfere with the cost award made by the motion judge.

The Court of Appeal for Ontario heard an appeal concerning the interpretation of a commitment letter for real estate financing and the calculation of damages.

The lender (MarshallZehr Group Inc.) terminated the commitment letter before any funds were advanced to the borrower (Ideal (BC) Developments Inc. et al.), citing the borrower's failure to satisfy initial funding conditions.

The motion judge had granted summary judgment to the lender, upholding the termination and awarding damages including a lender fee.

The appellate court affirmed the motion judge's interpretation that the cancellation provision in the commitment letter allowed for termination in the pre-closing period when no funds had been advanced.

However, the court found that the lender fee was not recoverable as the commitment letter stipulated it would be deducted from the initial advance, which never occurred.

The damages award was reduced accordingly.

The plaintiffs, mortgagees, brought a motion seeking an order to compel the defendants, mortgagors, to deliver a statement of defence despite a provincial emergency order suspending procedural timelines.

The mortgage was in default, and evidence indicated significant property deterioration and tax arrears.

The defendants did not respond to the motion.

The court exercised its discretion to override the suspension, finding no evidence from the defendants to justify further delay or contradict the plaintiffs' claims of wasting security.

The motion was granted, ordering the defendants to file a statement of defence within 20 days.

MarshallZehr Group Inc. (MZ) brought a summary judgment motion against Ideal Developments Inc. (Ideal) seeking payment of charges after MZ cancelled a $15.2 million loan commitment and dismissal of Ideal's counterclaim for alleged wrongful termination.

The court found that MZ lawfully cancelled the loan pursuant to a cancellation provision in the commitment letter, which did not require notice or a cure period as argued by Ideal under the default provisions.

The court granted summary judgment to MZ for $508,071.09, comprising standby interest, lender's fees, and expenses, and dismissed Ideal's counterclaim.

This appeal arose from a long-standing, high-conflict family law dispute.

The appellants challenged a motion judge's order that clarified spousal support obligations, addressed the impact of bankruptcy on an equalization payment secured by a letter of credit, and apportioned trial costs.

The Court of Appeal dismissed the appeal, affirming the motion judge's clarifications that periodic support continued due to the husband's failure to exercise a lump sum option, that the letter of credit securing equalization and support created an equitable trust not extinguished by bankruptcy, and that the allocation of trial costs was appropriate.

This decision addresses the costs of a summary judgment motion brought by the Law Society of Ontario against Rosemary Cremer, which Cremer successfully defended.

The Law Society did not dispute Cremer's entitlement to costs but argued for a partial indemnity basis and a lower amount.

The court found that the Law Society's motion, though unsuccessful, was not unreasonable and did not warrant punitive costs.

While Cremer claimed $55,778.43 in partial indemnity costs, the court deemed this excessive and disproportionate to a focused summary judgment motion, noting that counsel's extensive time expenditure might be more relevant to the trial on the merits.

The court awarded Cremer $46,000 in partial indemnity costs, all inclusive.

The plaintiff sued the Law Society of Ontario for breach of fiduciary duty, breach of trust, negligence, misfeasance in public office, and infliction of mental injury.

The Law Society moved for summary judgment, arguing the claims were statute-barred under the Limitations Act, 2002, protected by statutory immunity under the Law Society Act, or constituted an abuse of process.

The court dismissed the Law Society's motion, finding that the plaintiff's claims were not statute-barred, as the limitation period did not begin until her beneficial ownership of funds was confirmed by court order.

The court also found genuine issues requiring trial regarding statutory immunity and declined to strike portions of the claim as an abuse of process.

The Plaintiff, James Joseph Walsh, brought a motion for summary judgment seeking repayment of outstanding debts from the Defendants, Janina Joseph-Walker and Avenue Developments Inc., totaling $353,000 from dishonoured bills and $100,000 in unsecured debt.

The Defendants denied the debts were due, asserting they were subject to repayment terms and disputing personal liability for Ms. Joseph-Walker.

The court applied the three-part summary judgment analysis, finding genuine issues of material fact regarding the terms of the agreements and the applicability of the Bills of Exchange Act.

The motion judge determined that a mini-trial was inappropriate and that a full trial was necessary to resolve the conflicting evidence.

Consequently, the motion for summary judgment was dismissed.

Following two motions regarding refusals at examinations for discovery, the successful plaintiff sought costs of $12,500 on an elevated scale based on an offer to settle and the defendant's conduct.

The court found that the plaintiff did not obtain a result more favourable than the offer to settle, as the specific questions ordered to be answered differed from the offer.

The court also found the defendant's conduct was not reprehensible.

The court awarded the plaintiff partial indemnity costs fixed at $7,000.

The plaintiff and defendant brothers both brought motions to compel answers to questions refused during examinations for discovery in a dispute over the ownership of shares in a tire storage business.

The Master ordered the plaintiff to answer questions regarding his financial circumstances at the time of an alleged loan, but dismissed requests for information about his other investments.

The Master also ordered the defendant to answer questions regarding the sale of the disputed shares, rejecting the defendant's informal request for divided discovery.

The appellant, a father, appealed the trial judge's dismissal of his mortgage action against his son and daughter-in-law.

The trial judge had found the mortgage unenforceable on three grounds: duress, sham, and failure to prove advances.

The Court of Appeal reversed on the first two grounds, finding no duress and that the mortgage was not a sham.

However, the Court upheld the trial judge's finding that the father failed to prove that funds advanced through a company were made under the mortgage, as opposed to being income to the son.

The appeal was dismissed.

The moving party sought leave to appeal an interim child and spousal support order to the Divisional Court.

The interim order imputed income to the moving party due to non-disclosure and questionable business deductions.

The court applied the strict test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court found no conflicting decisions, no reason to doubt the correctness of the interim order, and no issues of general or public importance.

The motion for leave to appeal was dismissed with costs awarded to the responding party.

The applicant sought continuation of an ex parte order preserving a property owned by her in-laws and requiring discharge of a collateral mortgage registered shortly before trial in a family property dispute involving claims of constructive and resulting trust.

The court considered the interlocutory injunction test from RJR‑MacDonald Inc. v. Canada (Attorney General).

While the court found serious issues to be tried and a risk of irreparable harm if the mortgage fully encumbered the property, it determined that the balance of convenience favoured permitting the mortgage to remain in place subject to limits.

The court ordered that the respondents could draw no more than $250,000 on the secured line of credit pending trial and continued the certificate of pending litigation.

The preservation and mortgage discharge aspects of the prior ex parte order were set aside and no costs were awarded.