Patrick T. Summers

The court addresses costs and pre-judgment interest following the successful actions of Gary and Jennifer McKenzie against Fabco Holdings Inc., Jaymor Specialty Housing General Partner Inc., Your Community Realty Inc., and Gerald Anthony (also known as Gerald Van Erp).

The McKenzies were awarded substantial indemnity costs and pre-judgment interest in both the "Fabco claim" and the "Title claim," with the court apportioning costs between the defendants based on their conduct and the complexity of the litigation.

The decision discusses the principles guiding costs awards, including proportionality, indemnity, and the impact of vexatious conduct.

The decision concerns an appeal by the Defendants from an order granting the Plaintiffs certificates of pending litigation (CPLs) over two properties.

The court reviews the factual background, the standard of review, and the legal test for CPLs, ultimately finding no error in the Associate Justice’s decision to grant the CPLs.

The appeal is dismissed.

The plaintiffs, Gary and Jennifer McKenzie, brought two claims: one for breach of contract against Fabco Holdings Inc. and Jaymor Specialty Housing General Partner Inc. (Fabco/Jaymor) arising from an aborted real estate purchase agreement, and another for slander of title/injurious falsehood against Gerald Anthony, a neighbour, regarding a disputed property boundary.

The court found that Fabco/Jaymor breached the purchase agreement, not due to a legitimate title issue, but because the property was unsuitable for their development plans.

Fabco had assigned its obligations to Jaymor, and the court held Jaymor solely responsible for the breach, releasing Fabco from liability per the contract's assignment clause.

The court awarded the plaintiffs substantial damages against Jaymor for loss of bargain and associated costs.

Regarding the title claim, the court found Anthony liable for slander of title/injurious falsehood for registering a caution and application on title without bona fide grounds, which delayed the subsequent sale of the property.

However, Anthony was not held liable for damages related to the initial aborted sale, as that was attributed to Fabco/Jaymor's independent reasons.

The court awarded damages against Anthony for losses incurred due to the delay in the second property sale.

The defendants' counterclaim was dismissed, and the plaintiffs were found to have reasonably mitigated their damages.

This appeal concerned the suitability of specific performance as a remedy in a failed real estate transaction.

The appellants (defendants) challenged the trial judge's order for specific performance, arguing that the property was not unique and that the corporate purchaser's intent was for investment, not personal use.

The Court of Appeal found that the trial judge erred by relying on inadmissible hearsay evidence regarding the corporate principal's (Mr. Lin's) intentions, as he did not testify and was not proven unavailable.

The court concluded that the corporate structure and expert evidence supported an investment purpose, making damages an adequate remedy.

The appeal was allowed, the specific performance order was set aside, and the issue of damages was remitted for a new trial.

The respondent's cross-appeal on costs was dismissed.

This motion concerned the interpretation of the term “usual and ordinary course of business” as it applied to corporate respondents in an interim preservation order.

The corporate respondents sought an expansive interpretation to allow significant financial transactions, including leveraging properties and transferring funds for a private mortgage lending business.

The applicant sought a narrow interpretation to preserve assets.

The court applied principles of judicial order interpretation, emphasizing context and purpose, and found the respondents' proposed interpretation would negate the preservation order's effect.

The court adopted a narrow definition, limiting “usual and ordinary course of business” to day-to-day operations and management, explicitly excluding large-scale asset encumbrance or intercorporate fund transfers for investment.

All other relief sought by the respondents was dismissed.

The applicants sought to rescind an Agreement of Purchase and Sale and recover their deposit due to undisclosed easements for storm and sanitary sewers.

The court found that the easements did not materially affect the use or enjoyment of the property, as per clause 10(d) of the agreement, and dismissed the application.

This is a costs endorsement following a ten-day trial where judgment was granted in favour of the defendants, dismissing the plaintiff's action and allowing the defendant Martha Stirpe's counterclaim.

The court fixed costs on a partial indemnity scale, rejecting the defendants' claim for substantial indemnity costs under Rule 49.10(2) and confirming that "costs in the cause" for a prior summary judgment motion and appeal meant costs were awarded to the successful party in the main action.

The court also found the hourly rates for lead counsel and the inclusion of a law clerk's attendance at trial to be reasonable.

The appellants sought to overturn a trial judgment dated February 28, 2018 by advancing arguments that had been rejected by the trial judge and by challenging his credibility findings.

The Court of Appeal found no basis to interfere with the trial judge's findings and dismissed the appeal.

Costs were awarded to the respondent on a partial indemnity scale in the amount of $15,000, inclusive of disbursements and HST.

The plaintiff, Michel Drakoulakos, sued his daughter, Martha Stirpe, her husband, Mark Stirpe, and their company, 1166504 Ontario Limited, claiming beneficial ownership of a company share and its assets (taxis and investments) registered in his daughter's name, asserting a resulting trust.

He also sought alternative relief based on unjust enrichment and constructive trust.

The defendants counterclaimed for $49,000 withdrawn by the plaintiff from the daughter's credit cards.

The court dismissed the plaintiff's action, finding that the transfer of the company share and its initial asset (a taxi) was a gratuitous gift from the parents to the daughter, rebutting the presumption of resulting trust.

The court accepted the defendants' evidence that promissory notes signed by the daughter were for protection in case of divorce, not to create a debt.

The plaintiff's alternative claims were dismissed as unpleaded and unsupported by evidence.

The court allowed the daughter's counterclaim for $49,000, which the plaintiff conceded.

Appeal from a summary judgment decision enforcing settlement agreements between Mars Canada Inc. and the appellants regarding the sale of grey market Mars products in Canada.

The appellants challenged the enforceability of the settlement agreements as being in restraint of trade, the motion judge's jurisdiction to order a reference on damages, and the award of substantial indemnity costs.

The Court of Appeal upheld the motion judge's decision, finding the settlement agreements reasonable under the Tank Lining test, confirming the court's jurisdiction to order a reference under Rule 20.04(3) on summary judgment, and affirming the substantial indemnity costs award based on the appellants' reprehensible conduct.

The plaintiff sued his nephew and sister for an unpaid loan of $142,307.21, alleging the nephew borrowed the money and the sister guaranteed it as executrix of their mother's estate.

The defendants brought summary judgment motions, arguing the claim was barred by a mutual release executed to settle a decade of prior estate litigation.

The court granted the sister's motion, finding the broad release extinguished the claim against her.

However, the court dismissed the nephew's motion, concluding there was a genuine issue for trial because he was not a party to the release and the parties did not intend to extinguish his personal debt.

A not‑for‑profit campus radio corporation sought a winding‑up order under the Winding Up and Restructuring Act after losing its broadcast licence, premises, and funding.

The opposing party argued the court lacked jurisdiction, that the members’ resolution was invalid because it referred to “dissolution” rather than “winding up,” and that potential derivative claims should proceed.

The court held that the distinction between “dissolve” and “wind up” was immaterial in the circumstances and that the corporation had no meaningful assets or operational purpose.

The court rejected the argument that speculative derivative claims justified preserving the corporation’s existence.

A winding‑up order was granted and the opposition dismissed.