Michael Hochberg

This decision concerns a failed real estate transaction between Brighton Breeze Ltd. and Noel Property Management Ltd. for a waterfront property in Brighton, Ontario.

The dispute centered on a notice registered on title by a neighbouring condominium corporation, which led to the collapse of the sale.

The court found that Noel was entitled to rely on the annulment clause in the Agreement of Purchase and Sale (APS) after Brighton failed to waive its objection to title.

The court dismissed Brighton’s claim for specific performance, ordered the discharge of the Certificate of Pending Litigation (CPL), and granted summary judgment in favour of Noel.

The appellants, Enhanced Care Pharmacy and 2819826 Ontario Inc., appealed an order directing them to cease pharmacy operations in a condominium building.

The respondents, World Medpharm Inc., held an exclusive right to operate a pharmacy in the building, granted by an Exclusive Use Agreement and enforced by a Declaration.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that the appellants were aware of the prohibition, the respondents had standing to enforce the declaration, and there was no basis to exercise discretion to relieve the appellants from compliance.

The court found no error in the application judge's rejection of arguments regarding the impact on the respondents' business or harm to patients.

The appellants, 2352711 Ontario Inc. and 2819826 Ontario Inc., sought a stay of a compliance order issued by an application judge, which prevented them from operating a pharmacy in a condominium unit without the Declarant's consent.

The motion for a stay was brought under Rule 63.02(b) of the Rules of Civil Procedure, pending their appeal of the compliance order.

The Court of Appeal applied the three-part test for a stay (serious question, irreparable harm, balance of convenience).

While acknowledging a serious question, the court found no evidence of irreparable harm to the moving parties themselves, distinguishing harm to non-litigants (clinic, patients, public).

The balance of convenience did not favour a stay.

Consequently, the motion for a stay was dismissed, and costs were awarded to the responding parties.

The applicants, who operate a pharmacy in a condominium building with an exclusive use agreement, sought a compliance order against the respondents for operating a competing pharmacy in a neighbouring condominium building in violation of that building's declaration.

The court granted the compliance order, finding the respondents were in clear breach of the declaration and had attempted to circumvent it.

The court also granted an interlocutory injunction preventing the respondents from taking steps to amend the declaration pending the hearing of cross-applications for oppression remedies.

The condominium corporation was found to have taken reasonable steps to enforce the declaration and was awarded costs against the respondents.

This decision addresses a motion by the Applicant Tenant to amend previous reasons for judgment regarding the calculation of non-lease-based rent and to determine costs.

The court corrected the non-lease-based rent calculation, reducing the amount owed by the Tenant to the Landlord.

The court also awarded the Applicant Tenant partial indemnity costs, finding them largely successful in the underlying application and trial, and that the costs claimed were reasonable and proportional.

The plaintiff, a sub-lessee, sought damages for overpayment of water usage charges from the defendant landlord, alleging breach of lease, unjust enrichment, or negligence due to a malfunctioning remote water meter.

The court dismissed the action, finding it statute-barred as the plaintiff had sufficient knowledge to pursue a claim more than two years before filing.

Additionally, the court found no privity of contract between the sub-lessee plaintiff and the landlord defendant, and noted the plaintiff failed to utilize the lease's dispute resolution clause.

The plaintiff commercial tenant and defendant landlord engaged in a trial of issues regarding a commercial lease dispute.

The relationship was highly contentious, involving disagreements over the rentable area, the tenant's construction of a mezzanine and exterior shed, operating costs, and the landlord's notices of default.

The court found the landlord's default notices invalid for failing to comply with the lease and the Commercial Tenancies Act.

The court determined the rentable area excluded the mezzanine and shed, and that the tenant's additions were not structural.

The landlord was found to have breached the lease by failing to provide proper operating cost statements and breaching the covenant to repair.

The tenant validly exercised its renewal option.

However, the court ordered the tenant to pay non-lease-based rent for its unauthorized use of the exterior shed space.

The plaintiff tenant moved for an injunction or relief from forfeiture after the defendant landlord terminated its commercial lease for non-payment of rent.

The tenant had a history of late payments, and its rent cheque was returned due to a frozen bank account.

The premises had also suffered two floods, and the tenant had ignored fire code violations.

The court denied the injunction but granted relief from forfeiture, noting the disproportionate impact termination would have on the tenant's investment.

Relief was granted on strict conditions, including payment of all rent arrears, expenses, and full indemnity costs.

The defendants moved to prohibit the plaintiff, Bank of Montreal (BMO), from relying on documents released by their former lawyer, Susan Ambrose, claiming solicitor-client privilege.

BMO opposed, arguing privilege was waived or lost due to an illegal purpose (fraudulent transfer of property).

The court found that while Roufat Iskenderov initially held privilege, Elena Lazareva did not.

Privilege for two documents was waived by the defendants' own disclosure in affidavits of documents.

Furthermore, the privilege for all Ambrose documents was lost due to a prima facie case that Roufat may have used the separation agreement drafted by Ms. Ambrose as cover for a fraudulent transaction to defeat BMO's claims.

The motion to prohibit reliance on the documents was largely dismissed, allowing BMO to use the documents for the purpose of arguing fraudulent conveyance.

The plaintiff, a receiver and manager of a limited partnership, brought a motion for summary judgment in an action against subscribers to recover alleged debts under "Assumption of Loan and Debt Agreements." The defendants opposed the motion and sought dismissal of the action.

The court found that these agreements were neither guarantees nor indemnities enforceable by the Limited Partnership, but rather primary obligations to the original creditor contingent on the success of the underlying transaction.

Furthermore, the court determined the action was statute-barred, as the limitation period for a claim for contribution and indemnity had expired, having commenced no later than when a Master refused to add the subscribers as defendants in a prior action.

The plaintiff's action was dismissed.

The plaintiff mortgagee brought a motion for summary judgment against the mortgagor and guarantors for the deficiency balance remaining after the property was sold under power of sale.

One guarantor opposed the motion, alleging the sale was improvident and that the plaintiff or his agent frustrated other potential sales.

The court found no genuine issue requiring a trial, concluding the plaintiff took reasonable precautions to obtain market value and there was no evidence of interference with other offers.

Summary judgment was granted for the deficiency balance of $4,090,074.26 plus interest and substantial indemnity costs.

Following a prior decision striking the plaintiff’s Statement of Claim in its entirety without leave to amend, several successful defendants sought costs.

The court considered the governing principles for costs awards, including the requirement that costs be fair and reasonable and the factors under Rule 57 of the Rules of Civil Procedure.

Although the defendants sought higher partial indemnity amounts, the court exercised discretion to reduce the awards.

The court ordered the self-represented plaintiff to pay fixed costs to multiple defendants reflecting their success on the motions while ensuring the amounts were reasonable in the circumstances.

The defendants brought motions to strike the plaintiff’s Fresh as Amended Statement of Claim alleging fraud, negligence, defamation, breach of contract, and numerous other causes of action arising from a physician assessment and subsequent complaints to the professional regulator and review board.

The court held that the pleading failed to set out material facts supporting the alleged causes of action and instead consisted largely of bald allegations and inflammatory assertions.

Claims relying on materials from professional discipline proceedings were barred by s. 36(3) of the Regulated Health Professions Act, 1991, and the regulatory bodies and their officials were protected by statutory immunity absent properly pleaded bad faith.

The court also found the claim constituted an improper collateral attack on the outcomes of the regulatory complaint and review process.

The entire claim was struck without leave to amend.