Megan L. Mackey

The defendant builder moved for summary judgment arguing that a full and final release executed by the condominium corporation in settlement of a parallel s. 23 Condominium Act action barred the plaintiff unit owner's separate contractual action concerning deficiencies unique to its units and immediately related common elements.

The court held that the condominium corporation had no authority under s. 23 to settle or release the plaintiff's distinct individual claim for specific performance and related relief, and interpreted the release narrowly so it did not extend to that action.

The court also held that res judicata or abuse of process barred the defendant from relying on a release defence that could have been raised before the Court of Appeal when the scope of the plaintiff's right to maintain the action was litigated.

Because the parallel proceeding had settled and the release did not bar the claim, the partial stay would cause injustice and was lifted.

Following a prior ruling ordering the discharge of a condominium common expense lien under s. 85 of the Condominium Act, the court determined the appropriate costs award.

The court emphasized that costs are discretionary under s. 131(1) of the Courts of Justice Act and guided by the principles in Rule 57.01 of the Rules of Civil Procedure, including complexity, importance of the issues, and litigation efficiency.

The court found that the responding party’s former counsel had taken an unnecessarily complex and evasive approach to what should have been a straightforward statutory process, generating unnecessary expenses.

While the conduct did not warrant substantial indemnity costs, it justified a level of costs between partial and substantial indemnity.

The applicant was awarded $10,000 in legal fees plus HST and $1,098.75 in disbursements.

The appellant purchased eight condominium units from the respondent developer, four of which were custom-designed for use as a head office.

A dispute arose over the adequacy of the common elements, specifically the exterior doors, windows, and HVAC system, to meet the custom design requirements.

The appellant sued for specific performance or damages.

The respondent successfully moved at the Divisional Court to strike the claim on the basis that section 23(1) of the Condominium Act, 1998 grants exclusive standing to the condominium corporation to sue regarding common elements.

The Court of Appeal allowed the appeal, holding that the word 'may' in section 23(1) is permissive.

It grants the corporation standing to sue on behalf of owners for common issues but does not deprive an individual unit owner of the right to pursue contractual or unit-specific claims relating to common elements immediately pertaining to their unit.

In a proposed securities class action alleging misrepresentations in the primary and secondary markets, the plaintiffs sought an order compelling defendants to deliver statements of defence and requested that the certification motion be heard together with a leave motion under s. 138.8 of the Securities Act.

The defendants opposed delivering defences before certification and sought a sequence of motions beginning with the leave motion, followed by Rule 21 motions and then certification.

The court held that pleadings should generally be completed before certification and that ordering the delivery of a statement of defence was not contrary to law or due process.

However, the court limited the requirement to defendants who filed affidavits under s. 138.8(2) of the Securities Act, while permitting other defendants to plead voluntarily without losing the ability to bring Rule 21 motions.

The court further ordered that the leave motion and certification motion be heard together to avoid delay, inefficiency, and serial appeals.

The applicant condominium corporation brought a motion to quash the respondent's amended notice of appeal.

The respondent sought to appeal a judge's decision refusing to grant leave to appeal under s. 45 of the Arbitration Act.

The Court of Appeal held that no appeal lies from such a refusal unless the judge mistakenly declined jurisdiction.

As the leave judge fully considered the application and did not decline jurisdiction, the appeal was quashed.

Following the release of the main appeal decision, the respondent requested a reconsideration based on information in the appellants' trial counsel's time dockets.

The Court of Appeal declined the request, finding the new information did not alter its conclusion regarding the trial judge's misapprehension of evidence.

The Court awarded trial costs of $50,000 to the appellant Alexander N. Kovachis.

The landlord terminated a commercial head lease and locked out the tenant, which prevented the subtenant from using the exterior wall for advertising.

The subtenant sued the landlord for the tort of intentional interference with contractual relations and economic interests.

The trial judge found the landlord liable.

On appeal, the Court of Appeal reversed the decision, holding that the trial judge erred in equating the foreseeability of harm to the subtenant with an intention to injure.

The evidence did not establish that the landlord knew of the subtenant or intended to harm it when the decision to terminate the head lease was made.

An ageing father gratuitously placed the bulk of his assets in joint accounts with his adult daughter.

Upon his death, the daughter claimed the balance through a right of survivorship, while her ex-husband claimed the assets formed part of the estate.

The Supreme Court of Canada held that the presumption of resulting trust applies to gratuitous transfers to adult children, limiting the presumption of advancement to minor children.

However, the Court found sufficient evidence that the father intended to gift the right of survivorship to his daughter, rebutting the presumption of resulting trust.

The appeal was dismissed.

The applicant, City of Toronto Economic Development Corporation (TEDCO), was successful on an application for judicial review regarding a freedom of information request made by the respondent, Showline Limited.

TEDCO sought partial indemnity costs of $18,479.00 against Showline.

Showline argued that no costs should be awarded as it was merely exercising its statutory rights and the case raised novel issues of statutory interpretation.

The Divisional Court held that costs should follow the event, noting that Showline is a private commercial entity that mounted a vigorous response.

Applying the principles from Boucher, the court found the requested amount fair and reasonable and awarded TEDCO $18,479.00 in costs against Showline.

The applicant, City of Toronto Economic Development Corporation (TEDCO), sought judicial review of a decision by the Information and Privacy Commissioner/Ontario (IPC) which found that TEDCO was deemed to be part of the City of Toronto under subsection 2(3) of the Municipal Freedom of Information and Protection of Privacy Act.

The IPC had ordered the City to obtain records from TEDCO responsive to a freedom of information request.

The Divisional Court quashed the IPC's decision, holding that the adjudicator erred in interpreting the term 'officers' in subsection 2(3) to include 'directors'.

The Court found that TEDCO, incorporated under the Business Corporations Act, is not subject to the Act.