Michael D. Magonet

The defendants brought a motion to vacate a certificate of pending litigation (CPL) registered against their property, arguing the plaintiff failed to prosecute the action with reasonable diligence.

The underlying action involved a claim of fraudulent conveyance to avoid a foreign judgment.

The court dismissed the motion, finding that the plaintiff had satisfactorily explained any litigation delay, had set the action down for trial, and that discharging the CPL would severely prejudice the plaintiff while the defendants showed no evidence of prejudice.

The plaintiff, Gerenby Investments Limited, brought a motion for summary judgment against the defendants, Paramount Franchise Inc., 1726837 Ontario Inc., and 2223541 Ontario Inc., for breach of a commercial lease.

The defendants failed to pay rent and abandoned the premises, and did not oppose the motion.

The court granted summary judgment, finding no genuine issue requiring a trial regarding the breach, the plaintiff's mitigation efforts, or the defendants' alleged misrepresentation defence.

Damages were awarded for unpaid rent, mitigation costs, and interest, along with substantial indemnity costs as per the lease agreement.

The applicant requested the cancellation of a 'pending proceedings' notation from the abstracts of 81 mining claims held by the respondent, following the dismissal of the underlying Superior Court proceedings.

The applicant also requested an exclusion of time and an extension of the deadline to perform and report assessment work on the claims.

The Ontario Land Tribunal granted the requests, cancelling the notation, excluding the time the proceedings were pending, and extending the deadline for assessment work to December 31, 2024.

The plaintiff, Stainless Steel Products (SSP), brought a motion to set aside a registrar's order dismissing its action for delay.

The action sought payment of a default judgment from Ohio and a declaration that a property transfer was a fraudulent conveyance.

The court applied a contextual approach, considering factors such as the explanation for delay, inadvertence, and prejudice to the defendants.

The court found the delay satisfactorily explained, the failure to meet the deadline inadvertent, and no significant prejudice to the defendants.

Despite uncertainty regarding the promptness of the motion, the court exercised its discretion to set aside the dismissal order in the interests of justice.

Skead Holdings Ltd. requested the Ontario Land Tribunal to cancel a 'pending proceedings' notation on 81 mining claims held by Fancamp Exploration Ltd., following the dismissal of a related Superior Court proceeding.

Skead also requested an exclusion of time and an extension of time to perform assessment work on the claims.

With the consent of Fancamp, the Tribunal granted the requests pursuant to sections 64(4.1) and 64(5) of the Mining Act, cancelling the notation, excluding the time the proceedings were pending, and extending the deadline for assessment work to December 31, 2024.

The plaintiff brought a motion to set aside a registrar's order dismissing its action for delay.

The underlying action sought to enforce a default judgment obtained in Ohio and to declare a property transfer void as a fraudulent conveyance.

Applying the contextual approach, the court found that the plaintiff had satisfactorily explained the litigation delay, demonstrated an intention to prosecute the action, and rebutted the presumption of prejudice to the defendants.

Although the court could not determine exactly when the plaintiff learned of the dismissal order, it concluded that setting aside the dismissal was in the interests of justice.

The motion was granted, and the plaintiff was ordered to pay $10,000 in costs to the defendants in the cause.

The applicant landlord sought a declaration that the respondent tenant breached a commercial lease and that the lease was validly terminated, seeking vacant possession.

The tenant sought a declaration that the lease was not validly terminated or, alternatively, relief from forfeiture.

The court found that the tenant committed numerous and ongoing breaches, including making significant structural alterations without prior approval or building permits, and installing heavy equipment without consent.

The court held that the landlord properly terminated the lease and that the tenant's deliberate and flagrant conduct disentitled it to the equitable remedy of relief from forfeiture.

The landlord's application was granted and the tenant's application was dismissed.

The plaintiff sought costs of $7,500 on a partial indemnity scale following a motion by the defendants for leave to amend their defence and a cross-motion by the plaintiff to strike paragraphs.

The defendants argued that success was divided and parties should bear their own costs.

The court found the plaintiff was substantially successful, as every disputed paragraph was struck in whole or in part, necessitating substantial amendments by the defendants.

The court awarded the plaintiff costs fixed at $6,000 on a partial indemnity scale.

Following the dismissal of the plaintiff's motions for a Certificate of Pending Litigation and for security pending trial, the defendants sought their costs.

The court rejected the plaintiff's argument to defer costs to the trial judge, finding no reason to depart from the general rule that the successful party is entitled to costs.

The court awarded the defendants costs on a partial indemnity scale, fixed at $18,000 for the CPL motion and $11,000 for the security motion.

The defendants brought a motion for leave to amend their Statement of Defence and add a Counterclaim in an action arising from an aborted real estate transaction.

The plaintiff opposed the amendments and brought a cross-motion to strike portions of the pleadings, arguing they were improperly pleaded, irrelevant, or disclosed no reasonable cause of action.

The court struck references to settlement privilege without leave to amend.

The court also struck the defendants' claims of bad faith and mental distress with leave to amend, finding they lacked sufficient clarity, precision, and material facts to allow the plaintiff to know the case it had to meet.

The plaintiff brought a motion for alternative security, requesting that the proceeds of the sale of a property be paid into court pending the disposition of the action, after her motion for a Certificate of Pending Litigation was dismissed.

The plaintiff relied on section 103(6) of the Courts of Justice Act and Rule 45.02 of the Rules of Civil Procedure.

The court dismissed the motion, finding no statutory authority to order security where a CPL had not been granted, and concluding that the plaintiff did not meet the 'specific fund' threshold under Rule 45.02 because she was advancing a claim for damages rather than a legal right to the specific fund.

The plaintiff brought a motion for leave to issue a Certificate of Pending Litigation (CPL) regarding a property she had agreed to purchase from the defendants.

The plaintiff alleged breach of fiduciary duty and unjust enrichment, claiming a constructive trust over the property.

The court found that while the plaintiff established a triable issue regarding a constructive trust, it was not just and equitable to grant the CPL because the property was not unique, damages were an adequate remedy, and both parties wished for the property to be sold.

The motion was dismissed without prejudice to the plaintiff seeking alternative security.

The defendant/moving party, Ms. Chen, brought a motion to set aside or vary a prior summary judgment that granted specific performance to the plaintiff/responding party, Mr. Lam, for the sale of a residential property.

Ms. Chen alleged that Mr. Lam misrepresented facts regarding the property's uniqueness and failed to disclose the purchase of another property, constituting fraud or misleading the court.

The court dismissed Ms. Chen's motion, finding that Mr. Lam's explanations for his property dealings were rational, the "fresh evidence" was not material to the original decision on uniqueness, and the evidence could have been discovered with reasonable diligence prior to the summary judgment.

The court concluded that Mr. Lam did not knowingly or recklessly make material misrepresentations or commit fraud.

The plaintiff, an accountant, claimed additional compensation for work performed on two land development projects for the defendants, arguing this work was outside his initial accounting retainer.

The defendants contended that the plaintiff's compensation already included this work.

The court found no explicit agreement for additional payment for the development work and awarded the plaintiff damages based on restitutionary quantum meruit, valuing his substantial and substantive involvement in the projects.

The plaintiff was entirely successful on a motion for summary judgment for specific performance of an agreement of purchase and sale for a residential property.

The court determined the quantum of costs to be awarded to the plaintiff.

Finding the plaintiff's claimed fees and disbursements to be fair, reasonable, and proportional, the court awarded costs of $51,886.75 on a partial indemnity scale.

The plaintiff purchaser brought a motion for summary judgment for specific performance of an Agreement of Purchase and Sale for a residential property.

A dispute had arisen over easements, leading to negotiations for an abatement.

The defendant vendor's lawyer faxed a written offer for a $20,000 abatement, which the plaintiff's lawyer accepted in writing before the deadline.

The defendant argued the offer was verbally rejected or withdrawn during a phone call.

The court found no genuine issue for trial, concluding the offer was validly accepted in writing and never repudiated.

The court granted specific performance, finding the property unique to the plaintiff, and awarded damages for costs thrown away.

The defendants sought to vary previous cost orders to include Peter Merrill, a non-party and owner of the plaintiff corporations, on grounds of fraud and abuse of process.

The court found that the plaintiffs' underlying action was frivolous, vexatious, and an abuse of process, and that a fraudulent undertaking regarding financial capacity was given to the court during an interlocutory injunction motion.

The court granted the defendants' motion, amending the cost orders to include Peter Merrill personally, finding that the due diligence requirement for new evidence was dispensed with due to allegations of fraud.

The appellants appealed a motion judge's order striking out their statement of claim.

The Court of Appeal allowed the appeal in part, permitting the appellants to amend their pleading.

This costs endorsement addresses the allocation of costs for both the appeal and the underlying motion.

The court found that the appellants' modest success on appeal did not warrant costs in their favour, as it represented a further indulgence to correct pleading deficiencies that multiple prior iterations and a case conference had failed to remedy.

The motion judge's costs order in favour of the respondents was varied downward by $5,000 to reflect the appellants' limited success.

The appellants appealed an order striking out most of their causes of action without leave to amend.

The action arose from a consulting agreement and alleged breach of trust and fraudulent diversion of funds by the respondents.

The Court of Appeal allowed the appeal in part, permitting the appellants to amend their statement of claim to include a breach of trust claim against the corporate owner of the properties and a personal liability claim against the individual respondents for fraudulent diversion of funds, finding the motions judge erred in restricting the piercing of the corporate veil to sham corporations.

Following the dismissal of the applicant tenant's motion for an interlocutory injunction to halt site servicing work at a commercial plaza, the court determined the timing and quantum of costs.

The tenant argued costs should be reserved to the application judge, while the respondent landlord sought costs payable forthwith.

The court held that the injunction issues were distinct from the main application and ordered costs payable within 30 days pursuant to Rule 57.03.

Applying the principles of proportionality and fair and reasonable compensation, the court fixed the landlord's costs at $28,000.