Michael P. Farace

This appeal concerned the interpretation of Agreements of Purchase and Sale (APSs) for two apartment buildings, specifically regarding the allocation of common amenity costs in a redeveloped condominium complex and the responsibility for leasing and collecting rent for rental units prior to their legal transfer.

The appellant sought to impose higher maintenance costs on the respondents due to City-mandated design changes and to retain control over pre-transfer leasing and rent collection.

The Court of Appeal upheld the application judge's decision, finding that the appellant's discretion in cost-sharing was not unfettered and that the respondents, as beneficial owners, were entitled to control leasing and receive rents from the time units became available, thereby preventing unjust enrichment of the appellant.

The appellant, Callidus Capital Corporation, appealed a trial judgment finding it liable for breach of contract and trust to the respondent, George Leslie Kemeny, regarding an unpaid consulting fee.

The fee was to be paid from the first advance of a loan to Esco Marine Inc. under an Irrevocable Direction.

The appellant argued the Irrevocable Direction was not a guarantee and that funds were unavailable after secured creditors were paid, and that the respondent was estopped by subsequent negotiations.

The Court of Appeal dismissed the appeal, affirming the trial judge's interpretation that the Irrevocable Direction created a direct contractual and trust obligation on the appellant to pay the fee from the first advance, irrespective of other disbursements, and found no basis for estoppel.

The parties entered into Agreements of Purchase and Sale where the applicants sold two apartment buildings to the respondent developer in exchange for cash and 100 rental units in the new condominium development.

The City of Toronto required a Section 111 Agreement imposing additional amenities and a shared entrance not contemplated in the original agreements.

The developer sought to have the applicants pay a proportionate share of the increased maintenance costs, control the leasing of the rental units, and retain interim rents before title transfer.

The court held that the applicants were only required to pay for amenities uniquely dedicated to the rental units or originally contemplated, that the applicants had the right to control leasing, and that the applicants were entitled to interim rents, as this aligned with the reasonable expectations of the parties and the commercial efficacy of the agreements.

The defendant vendors brought a motion to permanently stay the action, alleging the plaintiff purchasers failed to promptly disclose a settlement agreement reached with the co-defendant brokers.

The court found that the agreement was a 'simple settlement' involving only a without-costs dismissal and a standard release, with no terms requiring the brokers' cooperation against the vendors.

Applying recent appellate jurisprudence, the court held that the agreement did not entirely change the litigation landscape or the adversarial relationship between the parties, and therefore did not trigger the immediate disclosure requirement.

The motion for a stay was dismissed.

The plaintiff, Jinhang Feng, brought a motion for leave to amend the statement of claim to add alternative claims for monetary damages and unjust enrichment, in addition to the original claim for specific performance of an agreement of purchase and sale.

The defendant, Han Yun Liu, opposed the motion, arguing that the proposed amendments constituted a new cause of action and were therefore statute-barred.

The court granted leave to amend, finding that the proposed amendments did not introduce a new cause of action but rather sought alternative relief based on the same facts already pleaded.

The court also awarded substantial indemnity costs to the plaintiff, finding that the plaintiff had obtained an order more favourable than a prior offer to settle the motion.

The plaintiff, George Leslie Kemeny, was successful in his action against Callidus Capital Corporation and sought costs.

The court considered the plaintiff's offer to settle for US$400,000 and the defendant's offer for US$25,000, noting the plaintiff's judgment of US$679,800 (CAD$873,203.10 plus prejudgment interest).

The plaintiff sought costs on a partial indemnity basis up to his offer and substantial indemnity thereafter, totaling approximately $107,000.

The defendant challenged this amount and sought a reduction for a successful motion.

The court awarded the plaintiff $85,000 in costs, plus disbursements and taxes, after considering setoff for a previous costs award against the plaintiff and a reduction for the defendant's successful motion.

The plaintiff, an independent financial advisor, brought an action against the defendant lender to enforce an Irrevocable Direction for the payment of consulting fees.

The plaintiff had facilitated a loan agreement between a borrower and the defendant.

The Irrevocable Direction, signed by the borrower and acknowledged by the defendant, directed the defendant to pay the plaintiff 2% of the authorized loan facility from the first drawdown.

The defendant refused to pay, arguing lack of authority and insufficient availability of funds.

The court found the Irrevocable Direction binding, rejected the availability argument as commercially absurd, and held that the defendant breached its contractual and trust obligations.

Judgment was granted in favour of the plaintiff for US$679,800.

The applicant homebuilder abandoned its application against the respondent warranty corporation shortly before the scheduled hearing, after the respondent had incurred significant costs preparing its defence.

The respondent sought costs on a substantial indemnity scale, arguing the applicant unreasonably delayed abandoning the flawed application after an earlier injunction was dismissed.

The court agreed, finding the applicant's conduct in forcing the respondent to actively defend a doomed application warranted sanction.

Costs were fixed at $72,500 on a substantial indemnity scale.

Following the dismissal of the applicant's motion for an interim injunction, the respondent sought substantial indemnity costs.

The court found that the applicant had filed inaccurate and misleading evidence regarding its history of chargeable conciliations, which justified an enhanced costs award.

However, the court found the respondent's claimed amount of $86,845.95 to be disproportionate to the complexity of the matter.

The court awarded the respondent $45,000 in costs inclusive of disbursements and HST.

The applicant builder sought an interim injunction to prohibit the respondent statutory warranty corporation from conciliating delayed occupancy claims made by condominium purchasers.

The builder argued that the delays were caused by a municipal water supply issue and the COVID-19 pandemic, constituting an 'Unavoidable Delay', and that adverse conciliation decisions would irreparably harm its reputation.

The court dismissed the motion, finding no evidence of irreparable harm and concluding that the balance of convenience favoured allowing the statutory body to carry out its mandate to protect new home buyers.

The appellants and respondent, owners of adjoining properties, disputed the use of a mutual driveway.

The application judge found that a 1975 right-of-way agreement bound successor owners despite lacking a formal enurement clause, as the agreement's wording showed a manifest intention to create an easement running with the land.

The Court of Appeal agreed with the application judge's analysis and dismissed the appeal, upholding the findings on rectification and factual issues regarding vehicular access and substantial interference.

This decision addresses costs following a successful application by Fela Grunwald and a dismissed application by Edwin Le Marchant and Laura Fiset concerning a right-of-way agreement.

Grunwald sought substantial indemnity costs of $97,459.25 or partial indemnity costs of $80,603.86.

The Le Marchants proposed $43,035.

The court awarded Grunwald $66,000, all inclusive, on a partial indemnity basis.

The court found that while the Le Marchants' arguments were without merit, their conduct did not warrant punitive substantial indemnity costs.

The decision emphasizes that costs generally follow the event on a partial indemnity scale, guided by the principles of indemnification, reasonable expectations of the unsuccessful litigant, and overall reasonableness under Rule 57.01(1) of the Rules of Civil Procedure.

The applicants sought a declaration that a right-of-way agreement over a mutual driveway was void, while the respondent brought a cross-application seeking rectification of the agreement and an injunction against interference.

The court found that the right-of-way agreement was valid despite lacking a formal enurement clause, as the intention to create an easement running with the land was clear.

The court granted the respondent's application for rectification of the agreement and the parcel registers to correct a drafting error regarding the commencement point of the right-of-way.

The court also declared the respondent's right to vehicular access and ordered the applicants to remove encroachments, including a shed and fence, that substantially interfered with the right-of-way.

The appellants appealed a Superior Court judgment finding that a contract existed between the parties requiring the contractor to bill actual costs plus a 25% markup, and that the contractor had engaged in fraudulent invoicing, overcharging, and double-charging for HST.

The Court of Appeal upheld the motion judge's findings, rejecting the appellants' argument that the work was performed on an ad hoc basis without a formal agreement.

The court found it inconceivable that a two-and-a-half-year project costing over six million dollars with architect plans and a site supervisor could have been conducted without a clear contractual arrangement.

The appeal was dismissed with costs awarded to the respondent.

The plaintiff hired the defendant general contractor for a home renovation on a cost-plus basis.

After becoming concerned about costs, the plaintiff hired a cost consultant who discovered a fraudulent invoicing scheme, including inflated sub-trade accounts and double-counted HST.

The plaintiff brought a motion for summary judgment for civil fraud and to pierce the corporate veil to hold the sole shareholder personally liable.

The court granted summary judgment, finding the contractor committed civil fraud and the shareholder used the corporation as an instrument of fraud.

The defendants' counterclaim for unpaid invoices was largely dismissed due to lack of supporting documentation.

This is a costs ruling following a motion where the moving parties sought to remove Miller Thomson as counsel for the applicants and prohibit them from acting in other disputes.

The court granted the removal but denied the broader prohibition, resulting in mixed success.

The moving parties sought costs of $12,365.80 on a partial indemnity basis.

The court considered the mixed success on the motion and factors under Rule 57.01 of the Rules of Civil Procedure and section 131 of the Courts of Justice Act.

Given the partial success, the court awarded fixed costs of $6,000.00 all inclusive.

The moving parties brought a motion to remove the responding parties' counsel of record due to an alleged conflict of interest.

The moving parties argued that the law firm had previously acted for a jointly owned corporation and possessed confidential information relevant to the current shareholder dispute, specifically regarding a project called AllianceCare.

The court found that the law firm had a prior solicitor-client relationship with the jointly owned corporation and that the new retainer was sufficiently related to the past work, raising a rebuttable presumption of prejudice.

Because the responding parties refused to answer questions about AllianceCare during cross-examination, the court drew an adverse inference and found the presumption was not rebutted.

The motion was granted and the law firm was removed as counsel of record.

The homeowners appealed a decision by Tarion Warranty Corporation denying their second-year warranty claim regarding their staircase.

The homeowners alleged the stair risers, treads, and carpet violated the Ontario Building Code, causing them to fall.

The Licence Appeal Tribunal dismissed the appeal, finding the homeowners failed to provide objective measurements proving the stairs exceeded Building Code tolerances, and held that the carpet claim was out of time as it fell under the first-year workmanship warranty.

The parties owned adjacent units in a shared building.

The Shamesses' units fell into severe disrepair, prompting the Town to issue property standards violation notices.

When neither the Shamesses nor the Foleys repaired the building, the Town declared it unsafe and eventually demolished the entire structure.

The Foleys sued for negligence and nuisance.

The trial judge found the Town, the Shamesses, and the Foleys all partially liable.

On appeal, the Court of Appeal allowed the Town's appeal, finding it had no duty to undertake a partial demolition.

The Court dismissed the Shamesses' appeal, holding they owed a duty to their co-owners to act reasonably and breached it by failing to repair their units.

Liability was reapportioned between the Shamesses and the Foleys.

The appellants appealed a motion judge's order permitting the respondent to amend the style of cause from M. C. Trading of Canada Inc. to Meneses-Canso Bros.

Trading Ltd. The Court of Appeal dismissed the appeal, finding that the amendment was appropriate as it was a simple case of misnomer and the appellants were always aware of the true identity of the company they were dealing with.