Michael J. Valente

The appellant appealed the dismissal of her application for an order compelling the Chief Building Official to issue a building permit for a residential dwelling.

The lot in question was created through a scheme involving the registration of sham deeds designed to evade the subdivision control provisions of the Planning Act.

The Divisional Court upheld the application judge's finding that the scheme was a fraud upon the Planning Act, meaning the deeds did not convey valid title.

As the appellant was not the lawful owner of the land, she was not eligible to apply for a building permit.

The appeal was dismissed.

The plaintiff brought a motion to strike a paragraph of the defendants’ fresh as amended statement of defence asserting that the claim was statute-barred under the limitation period.

The plaintiff argued the issue had already been determined on an earlier motion and that the defendants were estopped from relitigating it.

The court held that it was not plain and obvious that the earlier endorsement constituted a final determination of the limitation issue, particularly given the limited reasons and absence of a formal order.

The court also noted that the plaintiff had taken significant fresh steps in the litigation after the defence was served and had not complied with earlier procedural timelines.

The motion to strike was dismissed, leaving the limitation defence to be determined on a fuller evidentiary record at summary judgment or trial.

Following a successful trial concerning the interpretation of a registered easement agreement, the successful applicant sought costs on a substantial indemnity basis exceeding $98,000.

The respondents argued no costs should be awarded, relying on an arbitration clause in the agreement and a prior consent order, and alternatively sought reduced partial indemnity costs.

The court held the arbitration clause had effectively been waived by the parties’ consent to litigate the dispute and affirmed the principle that a successful party is generally entitled to costs.

Applying Rule 49.10(1) of the Rules of Civil Procedure and considering Rule 57.01 factors, the court awarded partial indemnity costs to the date of the offer to settle and substantial indemnity costs thereafter.

A global costs award of $85,000 inclusive of disbursements and taxes was ordered.

The applicant sought declaratory and injunctive relief concerning the scope of a registered easement over her property used as part of a shared laneway servicing several subdivided residential lots.

The respondents claimed the easement allowed them to excavate the applicant’s land, construct a driveway to their garage, and park vehicles there.

The court interpreted the express easement agreement governing the subdivision and held that the right of way was limited to vehicular passage along the common lane and the installation and maintenance of service lines.

Ancillary rights could be implied only where necessary for the use of the easement, not merely convenient.

The respondents’ driveway construction, grading alterations, and parking exceeded the scope of the easement and interfered with the servient tenement.

Declaratory relief, restoration orders, and a permanent injunction were granted.

Municipal taxpayers brought an action challenging a waterfront redevelopment project involving a municipality and a private developer.

The plaintiffs sought declarations that agreements transferring municipal land in exchange for community benefits were ultra vires, constituted illegal bonusing under s.106 of the Municipal Act, 2001, lacked consideration, and created an unlawful partnership.

On cross-motions for summary judgment, the court held the contractual arrangement fell within the municipality’s broad powers under ss. 8, 9, and 11 of the Municipal Act, 2001 and s.37 of the Planning Act.

Viewing the transaction as a whole, the court found the municipality received substantial community benefits and economic advantages, meaning the arrangement did not confer an obvious or undue advantage on the developer.

The plaintiffs’ claims were dismissed and summary judgment granted to the defendants.

The parties resolved the matter in terms of a settlement agreement.

The Court of Appeal dismissed the appeal without costs in accordance with the settlement.

The appellant landlord appealed an order granting the respondent tenants specific performance of an option to purchase contained in a commercial lease.

The landlord argued that damages were a sufficient remedy, the option was a clog on the equity of redemption, and the option provision was ambiguous.

The Court of Appeal dismissed the appeal, finding that specific performance was appropriate because the property was unique to the tenants due to their significant investments.

The court also held that there was no mortgage between the parties to create a clog on the equity of redemption, and the option provision was unambiguous.

The appellants purchased a golf course from a court-appointed receiver pursuant to a Sale Approval and Vesting Order.

After the order but before closing, the appellants learned of a pending municipal tax reassessment that would substantially increase realty taxes for the period prior to closing.

The receiver refused to readjust the purchase price.

The motion judge held that the Vesting Order did not protect the appellants from the reassessment and, alternatively, that the order should be rectified to reflect the parties' contractual intention.

The Court of Appeal allowed the appeal, finding that rectification was unavailable because the parties lacked a common intention, and that the broad language of the Vesting Order conveyed the property free and clear of the future claim for increased taxes that existed at the time of closing.

The appellant appealed a trial judgment concerning a share purchase agreement.

The trial judge had found that a $31,000 payment was on account of a promissory note, awarded $35,000 in damages for misrepresentation regarding a submerged waste oil tank, and ordered the parties to split accounting fees.

The Court of Appeal upheld the findings regarding the promissory note and the waste oil tank, finding them supported by the evidence.

However, the Court allowed the appeal regarding the accounting fees, finding no legal or contractual basis to order the defendants to pay half of the fees incurred by the purchased corporation.

The appellants appealed a final order regarding their attempt to redeem a mortgage under s. 22(1) of the Mortgages Act.

The appellants had obtained an ex parte injunction and paid funds into court, but the respondent mortgagee had no notice of this and finalized a sale of the property under a power of sale.

The Court of Appeal dismissed the appeal, finding that because the mortgagee had no notice of the payment into court, it was not precluded from finalizing the sale, which extinguished the appellants' right to redeem.

Following an appeal where the appellants achieved substantial success in reducing the damages award, the parties made written submissions on costs.

The Court of Appeal held that the respondents were still entitled to their party and party costs of the trial because the principal findings of liability were not altered and they largely succeeded in their claim.

The court declined to alter the costs of the appeal, confirming the appellants were entitled to them due to their substantial success.

The appellants appealed a trial judgment that found they had overvalued inventory in a share purchase agreement and ordered them to repay the purchase price.

The Court of Appeal agreed that the inventory was overvalued but found the trial judge erred in calculating damages by failing to deduct a tax benefit and settlement proceeds received by the purchaser.

The Court reduced the purchaser's damages to $186,781.

The Court also allowed the appellants' counterclaim for $300,000 on an earn-out promissory note, setting off the purchaser's damages against this amount.

As a result, the personal action against the appellant guarantor was dismissed.

In an insolvency appeal arising from a consumer proposal, the appellant bank challenged an order holding that an approved proposal compromised the unsecured portion of its secured claim and that a side agreement with the debtors was unenforceable.

The court held that, because the bank did not seek revision of the proposed assessment of its security, the approved proposal was binding on all unsecured claims under s.62(2)(a) of the Bankruptcy and Insolvency Act.

The court further held that equality among creditors is a basic insolvency principle and that a secret side agreement violating that equality amounts to a fraud on other creditors and is unenforceable.

The appeal was dismissed, Mr. Farmer was to be removed as an inspector, and the order was amended by consent to remove any reference to misconduct by the trustee.