Michael D. Magonet

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 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.

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.

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 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 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.

Following a successful appeal, the parties agreed on appeal costs but could not agree on the costs of the underlying application or the payment of interest.

The Court of Appeal fixed the application costs at $40,000 inclusive of disbursements and taxes, taking into account the appellant's offer to settle.

The Court also ordered that interest at three percent per annum is payable on the judgment.

The applicant tenant, operating a Popeyes restaurant, sought an interlocutory injunction to restrain the respondent landlord from proceeding with site servicing and parking lot construction work related to a plaza expansion.

The tenant argued the work would breach a lease provision prohibiting construction that materially interferes with its business operations or access.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the tenant failed to establish irreparable harm, as any losses could be quantified and compensated monetarily.

The court also found the balance of convenience favoured the landlord, who had contractual obligations and faced significant delays if the work was halted.

The motion for an interlocutory injunction was dismissed.

The appellant retained a motor carrier to transport cargo, which was subsequently destroyed in a collision.

After obtaining a default judgment against the carrier for the full value of the cargo, the appellant sought payment from the carrier's insurer under s. 132(1) of the Insurance Act.

The insurer denied coverage, alleging the carrier made a material misrepresentation on its insurance application regarding contracts superseding its standard bill of lading.

The application judge agreed and voided the policy.

The Court of Appeal allowed the appeal, holding that the insurer failed to prove a misrepresentation because it never produced the carrier's standard bill of lading into evidence.

The plaintiff brought a motion for a Mareva injunction against the defendants, seeking to freeze their assets based on an alleged debt owed under a Repayment Agreement.

The plaintiff argued that the defendants were planning to move to the United States and dissipate their Ontario assets to avoid judgment.

The court found that while the plaintiff established a strong prima facie case for the debt, there was insufficient evidence to prove a real risk that the defendants were removing assets from the jurisdiction to avoid judgment.

The motion for a Mareva injunction was dismissed.

The applicant judgment creditor sought recovery from the respondent insurer under s. 132(1) of the Insurance Act after obtaining default judgment against an insured motor carrier for a destroyed food shipment.

The court held that the insurer could assert against the applicant any defence it would have had against its insured, including material misrepresentation in the insurance application.

The insured had answered negatively when asked whether it had contracts with shippers requiring liability terms superseding its standard bill of lading, despite having a contract exposing it to the full actual value of shipments.

The court found the freight forwarder functioned as a shipper in this context, the non-disclosure was material because it would have increased the premium, and the policy was void.

The application was dismissed.

Dispute arising after the sale of a jointly owned apartment building pursuant to a partition order.

The applicant purchased the property from the respondent co-owners and the parties disagreed over responsibility for the real estate commission and the fees of an independent lawyer appointed to oversee the sale process.

The court held that the agreement of purchase and sale made the respondent vendors solely responsible for the real estate commission, despite earlier sale conditions contemplating shared responsibility.

However, the court found the applicant remained obligated to pay its 25% share of the independent lawyer’s post‑agreement fees because the lawyer had been appointed to act impartially for the benefit of all partners.

An order was made directing payment of the applicant’s share of those fees from escrow funds.

Co-owners of a Toronto property brought an application under the Partition Act seeking an order for sale and directions regarding the method of sale.

While all parties agreed the property should be sold, they disagreed on whether the sale should proceed by public auction or by sealed bid.

The court discounted partisan affidavit evidence from the parties and professional firms with financial interests in the process.

Emphasizing the need to safeguard the integrity of the sales process and maximize value, the court concluded that a sealed-bid process was preferable in circumstances where some co-owners intended to bid on the property.

The court ordered the sale to proceed by sealed bid under the supervision of an independent sales officer, with final process terms subject to court approval.