Michael J. Brzezinski

The plaintiffs (purchasers in a real estate transaction) brought a motion to stay or dismiss a separate action commenced by the defendant real estate brokerage for unpaid commission, arguing it should have been brought as a counterclaim and was an abuse of process.

The defendant brokerage brought a cross-motion to transfer the plaintiffs' action from Toronto to Oshawa, where multiple related actions were already pending.

The court dismissed the plaintiffs' motion, finding it was not an abuse of process for the brokerage to commence a separate action given its dual role as plaintiff and defendant with separate counsel.

The court granted the cross-motion to transfer the Toronto action to Oshawa, noting the property, witnesses, and related proceedings were all located in the Oshawa area.

Following the dismissal of the plaintiff's summary judgment motions, the successful defendant sought costs on a partial and substantial indemnity basis, relying on an offer to settle.

The plaintiff argued the defendant should be denied costs due to delay, or that costs should be in the cause, and sought costs thrown away for prior adjournments.

The court awarded the defendant partial indemnity costs, finding the offer to settle did not provide a full compromise.

The court declined to reserve costs to the cause, as the summary judgment motions were decided on their merits.

The court also awarded the plaintiff $2,500 in costs thrown away due to the defendant's prior delays, which were deducted from the defendant's total costs award.

Following the dismissal of the plaintiff's $30,326.95 claim for construction materials on summary judgment, the successful defendants sought costs of over $47,000.

The plaintiff had also incurred costs exceeding the claim amount.

The court criticized the disproportionate legal fees expended by both parties for a modest liquidated claim.

Applying the principle of reasonableness and proportionality, the court awarded the defendants fixed costs of $21,766.56.

The appellant subcontractor supplied materials to a construction project but was not paid by the contractor, who subsequently went bankrupt.

Having failed to register a construction lien, the appellant sued the owner for breach of trust under the Construction Lien Act and unjust enrichment.

The Divisional Court dismissed the appeal, holding that the Act requires privity of trust for a trust claim and that the comprehensive statutory scheme of the Act provides a juristic reason precluding an unjust enrichment claim against the owner.

The plaintiff bank brought a motion for summary judgment against a corporate defendant for amounts owing under loan agreements and against an individual defendant on personal guarantees.

The bank argued that a Request to Pay from the Canada Revenue Agency constituted an event of default.

The individual defendant argued the request was sent in error, the tax issue was resolved, the corporation was never in arrears, and the bank failed to provide reasonable notice before enforcing its security.

The court found genuine issues requiring trial regarding whether an event of default occurred and whether reasonable notice was provided, and dismissed the motion for summary judgment.

The plaintiff bank brought a motion for summary judgment against a corporate borrower and an individual guarantor for outstanding loan amounts.

The corporate borrower did not respond, and summary judgment was granted against it.

The individual guarantor opposed the motion regarding a $200,000 guarantee, raising defences of non est factum and fraud, alleging the bank's representative misrepresented the extent of the guarantees required.

The court found a genuine issue requiring trial regarding the enforceability of the $200,000 guarantee.

The court also declined to grant partial summary judgment on two other undisputed guarantees, finding the issues cannot be readily bifurcated and would not advance the action as a whole.

A case management conference was held to schedule the hearing of an appeal from a final order.

The court directed that the appeal proceed before a three-judge panel via ZOOM videoconference and set out a timetable for the exchange of materials, including the establishment of an electronic drop box for document sharing.

The plaintiff subcontractor, Tremblar Building Supplies Ltd., brought an action against the owner defendants (The Lighting Boutique Defendants) for breach of trust under the Construction Act and unjust enrichment, seeking payment for materials supplied to a general contractor (Keystone) that subsequently declared bankruptcy.

The owner defendants moved for summary judgment to dismiss the claims.

The court granted summary judgment, finding that no statutory trust existed between the owner and the subcontractor due to a lack of privity of contract, as established by prior Divisional Court rulings.

Furthermore, the court determined that the existing contractual arrangements and the comprehensive scheme of the Construction Act constituted juristic reasons, thereby precluding any claim for unjust enrichment.

The moving parties sought an urgent interlocutory injunction to prevent the respondent from selling securities in a real estate development project pursuant to a put option agreement, or alternatively, an order freezing the sale proceeds under Rule 45.02.

The court found that while the moving parties might suffer irreparable harm if the proceeds were repatriated out of Canada, the balance of convenience favoured the respondent, who had a valid third-party offer and faced an impending mortgage expiry.

The court also held that the sale proceeds did not constitute a specific fund under Rule 45.02 as the moving parties' claim was essentially for damages.

The motion was dismissed, with leave to renew if the current sale transaction failed to close.

The appellants appealed a summary judgment enforcing personal and corporate guarantees of a loan agreement.

The loan agreement specified interest rates of 2.5% per 30 days pre-maturity and an additional 0.416% per 30 days post-maturity, but lacked an express statement of the yearly equivalent rate.

The appellants argued the Interest Act limited recoverable interest to 5% per annum.

The motion judge found the appellants were bound by a forbearance agreement and a subsequent court-ordered agreement in which the borrower waived any Interest Act defences.

The Court of Appeal upheld the judgment, finding the appellants, as directing minds of the borrower, were bound by the borrower's waiver of Interest Act arguments.

The Court-Appointed Receiver brought an unopposed motion to approve the sale of certain real estate assets.

The court approved the sale but issued reasons criticizing the Receiver's procedural conduct, specifically the late service of the motion record, late filing with the court, and excessive unilateral sealing of evidence.

The court emphasized the importance of the open court principle and the need to provide stakeholders with sufficient notice and information to make informed decisions.

The court refused to seal outdated appraisals and only temporarily sealed the summary of prior offers and the Agreement of Purchase and Sale.

The applicant sought to recognize and enforce a foreign arbitral award issued by the Arbitration Institute of the Stockholm Chambers of Commerce against the respondent.

The respondent opposed enforcement, arguing the arbitrator lacked jurisdiction.

The court found that the respondent failed to establish any of the enumerated grounds under the Model Law to refuse enforcement, noting the powerful presumption that the arbitral tribunal acted within its jurisdiction.

The application was granted and the award was recognized and enforced.

The applicant landlord brought a motion for leave to place its application on the trial list or restore it, to avoid administrative dismissal for delay after five years.

The underlying dispute involved a commercial lease.

The Master found that the application, which had been converted into a trial of issues, should not be mechanically subjected to the same dismissal rules as an ordinary action.

Applying the principles from Carioca's, the Master granted the motion to allow the application to proceed, subject to the applicant paying a previous costs award and the parties scheduling a hearing date.

A receiver sought to defeat an appeal from a court order approving the sale of real property (a residential condominium project for seniors) to Pinnacle International One Lands Inc. The appellant, Fortress, had competed for the property through a stalking horse bidding process and subsequently submitted competing offers.

The receiver accepted Pinnacle's offer.

Fortress appealed, relying solely on section 193(c) of the Bankruptcy and Insolvency Act, which provides an automatic right of appeal if property involved exceeds $10,000 in value.

The Court of Appeal held that the approval order did not "result in a loss" within the meaning of section 193(c) because the receiver could not have obtained a better deal than Pinnacle's offer.

The court found that Pinnacle's offer had superior practical value due to a higher deposit, all-cash financing, support from the first mortgagee, and the integrity of the sale process.

The defendants brought a motion to stay an action for payment on written guarantees, arguing that Ontario lacked jurisdiction simpliciter or, alternatively, that Alberta was the more appropriate forum (forum non conveniens).

The guarantees contained a choice of law and forum selection clause designating Ontario.

The court dismissed the defendants' motion, finding that Ontario had jurisdiction based on the contracts being made in Ontario (acceptance by email) and that the defendants, as sophisticated business parties, failed to demonstrate "strong cause" to override the forum selection clause.

The court rejected arguments of uneven bargaining power and public policy concerns, distinguishing consumer protection cases.

The plaintiff brought a motion to amend its statement of claim to add a related numbered company as a defendant.

The defendants opposed, arguing prejudice and noting the plaintiff failed to request leave under Rule 48.04.

The court granted the motion, finding the failure to request leave was a technical defect that could be remedied.

The court noted the defendants and their counsel appeared to be engaged in a game of 'catch us if you can' regarding the complex ownership of the property where the materials were supplied, and found no prejudice in allowing the amendment.

The applicants, a group of mortgage investors, applied to appoint a receiver over the property of the respondent, a not-for-profit corporation operating a church and school, due to an outstanding loan balance of approximately $11.5 million.

The respondent had previously commenced an action against the applicants alleging conspiracy and seeking restitution.

The court dismissed the application, finding it was not just and convenient to appoint a receiver because the respondent raised triable issues, the property value greatly exceeded the debt, and a receivership would effectively end the ongoing litigation and negatively impact the church and school.

The mortgagees of one property subject to a court-appointed manager sought to vary a without-notice management order so that the manager’s charges would rank behind their mortgage and no fees would be allocated to that property.

The court held the motion was not brought forthwith as required by Rule 37.14(1), given the mortgagees had notice of the order for months before serving and scheduling their variation motion.

The court further held the mortgagees had acquiesced in the manager’s continued administration of the property while knowing the manager was incurring fees in reliance on court-ordered priority.

Applying the receiver-priority principles in Kowal, the court found the manager’s charges were properly granted and refused to disturb the priority scheme.

In a receivership arising from concurrent CCAA proceedings, the moving party sought to vary a prior receivership order to change the allocation of sale proceeds from certain properties.

The dispute concerned whether surplus proceeds should be applied first to a cross‑collateralized mortgage held by a secured lender or to higher‑interest receiver borrowings incurred for other properties.

The court held that the original order did not finally determine the allocation of proceeds and that new facts concerning the timing and financing of property sales had arisen.

Applying Rule 59.06 of the Rules of Civil Procedure and the commercial reasonableness requirement under the Bankruptcy and Insolvency Act, the court concluded that applying lower‑interest debt before higher‑interest borrowing costs was not commercially reasonable.

The receivership order was amended to prioritize repayment of the receiver’s other borrowings before the lender’s blanket mortgage.

The moving party, a construction lien claimant, sought an extension of time to appeal an order that granted priority to a mortgagee over the proceeds of sale of a property in receivership.

The notice of appeal was filed 18 days late, after the receiver had already distributed the funds.

The Court of Appeal dismissed the motion, finding no bona fide intention to appeal within the time limit, no adequate explanation for the delay, and no merit to the proposed appeal.

The Court also noted that leave to appeal would have been required under the Bankruptcy and Insolvency Act and would not have been granted.