Michael McCluskey

The appellant, Wasif Rashidi, appealed a summary judgment order awarding damages to M.T. Johnstone Construction Ltd. for breach of an Agreement of Purchase and Sale.

The appellant failed to close on a property purchase and argued he was orally promised an assignment, which was not honoured, and that the respondent failed to mitigate damages.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's findings that the realtor was the appellant's agent, the assignment conditions were not met, and the respondent had reasonably mitigated damages.

The court also rejected arguments of economic frustration and judicial bias.

The plaintiff sought summary judgment against the defendant for damages arising from an aborted agreement of purchase and sale for a new-build residential property.

The defendant defaulted on the closing date due to an inability to secure mortgage financing.

The plaintiff subsequently relisted the property at a lower price and incurred carrying costs.

The defendant argued misrepresentation regarding assignment and improper refusal to extend the closing date.

The court found no genuine issue requiring a trial, noting that the agreement of purchase and sale had no financing condition, required vendor consent for assignment (which was not obtained), and explicitly stated that time was of the essence.

Summary judgment was granted to the plaintiff for the loss in sale price and incurred expenses.

The applicant, 384130 Ontario Limited, sought declarations that an 18-year-old agreement for the purchase of a property, which included an environmental remediation clause, was valid and enforceable, and an order for specific performance.

The respondent, 520611 Ontario Limited, argued the agreement was unenforceable due to a true condition precedent not being met, frustration of contract due to escalating remediation costs, and that the applicant's claim was time-barred by the Limitations Act or barred by laches.

The court found that Ministry approval for remediation was not a true condition precedent, as it depended on the respondent's actions.

It also held that increased remediation costs did not frustrate the contract, as the obligation was not radically different.

The court further determined the claim was not time-barred, as the applicant's email was a complaint about delay, not an acknowledgment of repudiation, and the doctrine of laches did not apply due to the respondent's failure to unequivocally repudiate.

The court granted specific performance, finding the property unique due to its suitability for the applicant's auto repair business and the goodwill established over 18 years.

The plaintiffs brought a motion seeking extensive documentary discovery from the defendants in a consolidated construction lien action.

The defendants resisted, arguing proportionality and the summary nature of construction lien proceedings, claiming only a small amount was in dispute.

The court found that the defendants' pleadings, which raised issues of delay, extras, incomplete work, and lost profits, put virtually all requested documents in issue.

The court determined that proceeding to discovery without the requested documentation would be unfair, lead to protracted discoveries, and ultimately incur more expenses.

The motion for documentary production was largely granted, with minor exceptions and clarifications.

The plaintiffs brought a motion to set aside a registrar’s dismissal for delay in a motor vehicle accident action.

Applying the contextual approach to the Reid v. Dow Corning Corp. criteria, the court considered the explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendants.

The court found uncertainty regarding whether the dismissal order had ever come to the attention of the plaintiffs while they were unrepresented, and accepted that the plaintiffs intended to pursue the litigation.

The court also concluded that the presumption of prejudice from delay had been rebutted and that the defendants failed to establish actual prejudice.

In the interests of justice and adjudication on the merits, the dismissal was set aside.