Peter J. Cavanagh

The sellers of a residential property represented in the agreement of purchase and sale (APS) that, to the best of their knowledge, the property had never been used for the growth or manufacture of illegal substances.

Before closing, the purchaser discovered the property had previously housed a marijuana grow operation in 2004, a fact unknown to the sellers when the APS was made.

The purchaser refused to close and sought rescission and return of deposit, while the sellers sought declarations that the APS was binding and damages for breach.

The court found the "illegal substances clause" to be a material representation that induced the purchaser to enter the APS.

Upon learning the property's history, the sellers' representation became untrue, triggering a duty to disclose.

The court held that the purchaser was entitled to rescission, declaring the APS void ab initio, and ordered the return of the deposit.

The sellers' application was dismissed, and the purchaser's claim for damages was allowed to proceed as an action.

The Minister of Finance appealed an arbitrator's decision that an Elite Insurance policy was not in force at the time of a motor vehicle accident, despite Elite's invalid non-renewal notice.

The arbitrator had found the policy automatically renewed for only a six-month term due to mutual intent to end the contractual relationship.

The Superior Court found the arbitrator's decision unreasonable, holding that Section 236(5) of the Insurance Act clearly displaces common law principles of contract renewal, meaning the policy remained in force until Elite properly discharged its statutory notice obligations.

The Minister's appeal was allowed, and Elite's cross-appeal regarding the invalidity of its non-renewal notice was dismissed.

The defendants, the Legislative Assembly of Ontario and the Office of the Ombudsman of Ontario, sought costs on a partial indemnity scale after successfully dismissing the plaintiff's action against the Assembly for lack of jurisdiction and striking out the plaintiff's statement of claim against the Ombudsman for disclosing no reasonable cause of action.

The court awarded the Legislative Assembly $49,983.67 and the Ombudsman $18,551.81, finding their initial claims for costs to be excessive but acknowledging the legal complexity and importance of the motions.

The plaintiff's financial circumstances were considered but not determinative in the costs award.

Conterra Restoration Ltd. (Conterra) claimed $109,451.35 from Irving Moishe Kirsch (Kirsch) for additional concrete work and waterproofing performed on his property.

Kirsch argued that these additional works required written change orders under their contract.

The court found that the contract was not a fixed-price agreement and that the additional concrete work fell within the scope of work priced on a per-unit basis, thus not requiring a written change order.

While the waterproofing work was outside the original contract scope, the court found that Kirsch had orally authorized it.

The court also held that Kirsch's oral approvals constituted a waiver by conduct of any strict contractual requirement for written change orders.

Consequently, Kirsch was found liable to Conterra for the claimed amount.

Kirsch's third-party claim against Pancon Engineering Ltd. for contribution and indemnity was dismissed.

This is an appeal from a Consent and Capacity Board (CCB) decision ordering the substitute decision-maker (SDM) to consent to the withdrawal of life support for her husband.

The appellant, the husband's wife, challenged the CCB's jurisdiction to make a decision binding on her and its finding that cessation of life support was in the patient's best interests.

The court affirmed the CCB's decision, finding its procedural approach reasonable and its determination of the patient's best interests supported by the evidence, including the adequacy of accommodations for the appellant's communication disabilities.

Following a motion to strike evidence where the determination was reserved to the application judge, the parties made submissions on costs.

The responding party sought an immediate award of costs, while the moving party submitted costs should be reserved.

The court applied previous jurisprudence holding that where the merits of a motion to strike are not decided, costs should be reserved.

Costs of the motion were reserved to the judge hearing the application on its merits.

The plaintiff sought a proportionate share of funds deposited into court following the settlement of prior litigation, based on a written 'Acknowledgement' agreement and his financial contributions.

The defendants argued for a prior oral agreement granting priority repayment to their fathers who loaned money for security for costs, and that an express trust was created.

The court found that the 'Acknowledgement' provided for reimbursement based on proportionate monetary contributions, rejecting the defendants' claim of a prior oral agreement for priority repayment to the fathers and finding no express trust.

The plaintiff was awarded 38.37% of the disputed funds, and his claim for exemplary damages was dismissed.

The applicant, a residential subdivision developer, sought an order to access Phase 2 of its development through Campania Court for remediation, servicing, and maintenance, which the City of Vaughan had blocked.

The applicant relied on common law right of access, improper exercise of municipal discretion, and a contractual right under a Development Agreement.

The court found that material facts were in dispute regarding the common law right and the exercise of discretion, requiring these claims to proceed to trial.

However, the court granted the applicant's request based on a contractual right under Section 4 of the Development Agreement, which allowed for the import and export of heavy equipment that could not safely maneuver through Phase 1 lands.

The City was ordered to facilitate this access, including removing physical barriers, but the order did not extend to hauling waste materials.

The defendant Lynn Cunningham brought a motion to dismiss the plaintiff Yolanda Girao's claims for non-pecuniary loss, arguing that the plaintiff failed to prove her injuries met the statutory threshold under subsection 267.5(5) of the Insurance Act.

The court applied the "but for" test for causation and the three-part threshold test (permanence, importance, seriousness of impairment).

It found that while the plaintiff suffered three soft tissue injuries caused by the accident, she failed to prove causation for chronic pain, fibromyalgia, temporomandibular joint issues, dizziness, and the severity of her psychological issues.

Consequently, the plaintiff did not establish a permanent serious impairment of an important physical, mental, or psychological function directly caused by the accident, leading to the dismissal of her non-pecuniary loss claim.

The plaintiffs appealed a Master's order striking out four paragraphs of their Statement of Claim.

The paragraphs alleged that the defendant landlords had general knowledge that counterfeit merchandise was being sold at their flea market.

The Master struck the paragraphs under Rule 25.11, finding them irrelevant and scandalous.

The Superior Court allowed the appeal, holding that the law on a landlord's vicarious liability for tenants selling counterfeit goods is unsettled, and it was an error to strike potentially relevant material facts at the pleadings stage.

The defendants moved for summary judgment to dismiss the plaintiffs' action concerning a share purchase agreement for a commercial property.

The core issue was whether the defendant vendor used "best efforts" to satisfy a condition precedent requiring all litigation affecting the property to be resolved by the closing date.

The plaintiffs sought specific performance, arguing the condition was not met due to the defendant's breach.

The court found a genuine issue requiring a trial regarding the defendant's best efforts, dismissing the summary judgment motion.

The court also declined to discharge the plaintiffs' certificate of pending litigation or set aside an interlocutory injunction, and refused partial summary judgment on the defendants' counterclaim for unpaid rent due to intertwined factual issues.

The plaintiffs, including Romijay Enterprises Ltd., sought an interlocutory injunction to prevent the defendants, led by 11 Yorkville Partners Inc., from holding a unit owner meeting to approve the sale of their condominium property.

The defendants, owning over 80% of the units, intended to sell the property to a non-arm's-length purchaser for redevelopment, relying on section 124(2) of the Condominium Act, 1998.

The plaintiffs invoked the oppression remedy under section 135 of the Act, arguing that the forced sale of their unit, which held significant personal and emotional value to its controlling mind, Robert Berman, constituted oppressive conduct.

The court granted the injunction, finding a serious issue to be tried regarding the plaintiffs' reasonable expectation that their unit would not be sold to a non-arm's-length purchaser without their consent, that they would suffer irreparable harm due to the unit's unique value, and that the balance of convenience favored preserving the status quo.

The respondent club brought a motion to strike out portions of an affidavit filed by the applicant in support of an application, arguing the impugned paragraphs contained argument, contentious facts based on information and belief without a specified source, and privileged information.

The court considered whether it should rule on the admissibility of the evidence prior to the hearing of the application on its merits.

Applying the principle that evidence should generally not be struck on an interlocutory motion absent special reasons, the court declined to decide the admissibility issues.

The motion was dismissed, leaving the evidentiary rulings to the judge hearing the application.

The Plaintiffs sought summary judgment for a mandatory order directing the issuance of interment rights certificates, a permanent injunction, and damages for breach of contract related to burial plots for their parents.

The mandatory order was resolved by consent during the hearing.

The motion for a permanent injunction was dismissed due to insufficient evidence.

The court found the Minsk Congregation breached its agreement by failing to timely issue the interment rights certificate, causing the Plaintiffs prejudice in honouring their mother's wishes and Jewish customs.

Damages for loss of peace of mind were awarded to each Plaintiff against the Minsk Congregation, while the motion against Rabbi Spero was dismissed as he acted as an agent.

The plaintiff, a former Ombudsman of Ontario, commenced an action against the Office of the Ombudsman and the Legislative Assembly of Ontario, seeking declaratory relief and damages for wrongful dismissal and negligent misrepresentation.

The Office of the Ombudsman moved to strike the statement of claim, arguing it disclosed no reasonable cause of action as the Office is a statutory position, not a legal entity capable of an employment contract with the Ombudsman.

The Legislative Assembly moved to dismiss or stay the action for lack of jurisdiction, asserting parliamentary privilege over the appointment and management of parliamentary officers.

The court granted both motions, finding that the Office of the Ombudsman is not a separate legal entity capable of employing the Ombudsman, and that the Assembly's decisions regarding the appointment and non-reappointment of a parliamentary officer are protected by parliamentary privilege, thus falling outside the court's jurisdiction.

Toronto Standard Condominium Corporation No. 1633 (TSCC 1633) applied for a declaration that Toronto Standard Condominium Corporation No. 1809 (TSCC 1809) was responsible for sharing the costs of operating, maintaining, repairing, and replacing a shared laneway.

TSCC 1633 advanced claims based on unjust enrichment, a common law obligation for easement maintenance, and the oppression remedy under section 135 of the Condominium Act, 1998.

The court dismissed the application, finding no common law obligation for the dominant tenement owner to maintain an easement for the benefit of the servient tenement.

It further held that the grant of the easement itself constituted a juristic reason, precluding a claim for unjust enrichment.

Regarding the oppression remedy, the court concluded that TSCC 1633's expectation of cost-sharing was not objectively reasonable, as the condominium declarations and disclosure statements did not provide for such an agreement, aligning with the principles established in Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation.

Her Majesty the Queen in Right of Ontario brought a motion for summary judgment to dismiss the plaintiff's claim regarding his sponsorship of his former spouse as a permanent resident.

The plaintiff sought a declaration that his former spouse was not entitled to social assistance she received and a return of monies confiscated due to his sponsorship obligation, arguing an implied term that repayment only applied to rightful payments and that estoppel applied.

The court, relying on Supreme Court precedent, held that a sponsor's statutory obligation to reimburse social assistance is absolute, regardless of whether the sponsoree obtained benefits fraudulently, and that estoppel does not apply against a statute.

The motion for summary judgment was granted, and the plaintiff's action against Ontario was dismissed.

The applicant sought to have a holographic will, allegedly made by his deceased brother, accepted as the last will and testament over a previously probated 1995 will.

The applicant had previously attempted to amend a statement of claim in a related action to plead this new cause of action, but that motion was dismissed by Lederman J. on the basis that the claim was statute-barred and the applicant failed to demonstrate due diligence in discovering the will.

The court held that the current application raised the exact same question decided by Lederman J. Applying the doctrine of issue estoppel, the court found the applicant was precluded from relitigating whether his claims were statute-barred.

The application was dismissed.

The applicant insurer sought a declaration that the respondent insurer had a duty to defend their mutual insured in an underlying environmental contamination action.

The underlying action alleged that fuel oil migrated from the insured's property to a neighbouring property.

The respondent denied coverage based on an environmental liability exclusion clause.

The court found that the respondent had a duty to defend because the pleadings left open the possibility that the initial escape of contaminants was 'sudden and accidental', which would trigger an exception to the exclusion clause.

The court ordered the insurers to share the defence costs equally based on equitable principles.

The plaintiff contractor brought a motion for summary judgment against the defendant property owner for unpaid invoices relating to balcony restoration work.

The defendant opposed the motion and brought a motion for summary judgment against the third-party engineer for contribution and indemnity, while the engineer sought summary judgment dismissing the third-party claim.

The court dismissed all motions, finding that conflicting evidence regarding whether the additional work and waterproofing were authorized created a genuine issue requiring a trial that could not be resolved without viva voce evidence and credibility findings.