Peter-Paul E. Du Vernet

The Receiver brought a motion for an order requiring the debtor and its principal to pay $143,000 to the Receiver.

The funds represented the HST portion of a lease termination settlement paid to the debtor prior to the receivership.

The debtor argued the funds were not 'Property' under the receivership order because they were subject to a statutory deemed trust in favour of the CRA.

The court held that the funds arose from the debtor's real property and fell within the definition of 'Property'.

The court declared the funds must be paid to the Receiver, who would determine priorities in due course.

The defendant condominium corporation moved for partial summary judgment dismissing claims seeking declarations that unpaid common expenses and a registered lien were satisfied because the plaintiff owner alleged overcharged water expenses and unreimbursed repair costs.

The court held that s. 84(3)(b) of the Condominium Act, 1998 unambiguously prohibits an owner from withholding common expenses even when making a claim against the corporation.

Applying the summary judgment framework, the court found the issue was a discrete question of law with no genuine issue requiring a trial and that the concerns associated with partial summary judgment did not arise.

The motion was granted, the impugned claims were dismissed, leave was granted for additional counsel to appear, and costs were awarded to the moving party.

The moving parties sought leave to appeal a costs endorsement.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs of the motion were awarded to the responding party in the fixed amount of $5,000 all-inclusive.

The defendants brought a motion to strike parts of the plaintiffs' claim, specifically regarding unlawful interference with contractual relations, inducing breach of contract, breach of confidence, and conversion.

The court struck the pleadings for unlawful interference with contractual relations, granting leave to amend, on the basis that inducing breach of contract does not constitute the "unlawful means" required for the tort of unlawful interference with economic relations as per the Supreme Court's decision in A.I. Enterprises.

However, the court upheld the pleadings for inducing breach of contract, breach of confidence, and conversion, rejecting the defendants' argument that A.I. Enterprises implicitly eliminated the tort of inducing breach of contract.

This endorsement from a case conference addresses delays in the discovery process across several consolidated actions.

The primary issue identified was Mr. Behzad Pilehvar's failure to produce all relevant documents, including approximately 11,000 emails and text messages.

The court ordered Mr. Pilehvar to deliver a further and better affidavit of documents by December 19, 2023.

The endorsement also noted Mr. Pilehvar's counsel's contemplation of bringing a motion to remove himself from the record, which would impact scheduled discoveries and a planned mediation session in early spring 2024.

The court provided directions for scheduling future motions and case conferences.

The moving parties brought a motion for leave to appeal an order dated June 6, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed in the amount of $3,000 all inclusive.

The moving parties brought a motion for leave to appeal an order of the motion judge dated June 6, 2023.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs were awarded to the responding party in the fixed amount of $3,000.

In a costs decision following dismissal of a negligent misrepresentation action as statute-barred and dismissal of the defendants' counterclaim, the court held the defendants were the successful parties in the main action and presumptively entitled to costs, while the plaintiffs were separately entitled to costs of defending the counterclaim.

The court rejected substantial indemnity costs based on allegations in the pleadings and on a purportedly favourable Rule 49 offer because the offer required an overly broad release and also included the counterclaim, making comparison with the judgment impossible.

Applying the Rule 57 factors, the court fixed the defendants' fees on a partial indemnity basis and allowed full disbursements, including expert disbursements for experts not called where the reports were reasonably necessary.

The plaintiffs were awarded a discrete amount for the counterclaim.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiffs regarding an industrial condominium unit.

The plaintiffs had entered into an Agreement of Purchase and Sale and took interim occupancy but failed to close the transaction, leading to a dispute over who breached the agreement.

The court found that while the plaintiffs failed to make full and frank disclosure on the ex parte motion, they established a triable issue regarding their claim for specific performance.

The court dismissed the motion to discharge the CPL but imposed strict terms requiring the plaintiffs to pay the full purchase price into court and pay all outstanding interim occupancy rent.

This application concerns a dispute between two groups of condominium unit owners regarding the election of a new board of directors following a previous court order for a turnover meeting.

Both groups held their own elections, each claiming the other's was invalid due to procedural irregularities or lack of proper notice/attendance records.

The court found both elections invalid due to substantive issues within their procedural flaws and ordered a new, properly convened turnover meeting within 30 days, with specific requirements for notice, candidate identification, and voting records.

No costs were awarded.

A case conference was held to manage multiple related actions.

The court noted that Commercial List matters were being traversed to the regular Civil list.

Directions were given for the filing of outstanding pleadings, setting aside defaults by consent, and establishing a mutually convenient discovery schedule with a target completion date of December 31, 2022.

The court also provided instructions for scheduling anticipated motions, including a potential Mareva injunction and a motion to join the trials.

The moving party sought an extension of time to appeal an order dismissing its cross-motion for production of financial documents.

The court first determined that the underlying order was interlocutory, not final, as it arose from a discovery motion and did not finally determine substantive rights.

Consequently, the appeal lay to a single judge of the Superior Court rather than the Divisional Court.

Applying the test for an extension of time, the court found that the justice of the case warranted granting the extension, noting the moving party's bona fide intention to appeal and the lack of significant prejudice to the respondent.

A case conference was held regarding five related actions, three of which were on the Commercial List and two were regular civil matters.

Counsel agreed that the actions should be case managed together for efficiency.

The judge agreed to act as the case management judge for all five cases, which will require transferring the Commercial List actions to regular civil actions.

The applicant, a dissenting shareholder in a corporate amalgamation, applied to the court to fix a fair value for his shares under s. 185 of the Business Corporations Act.

The respondent argued the application was out of time, but the court exercised its discretion to extend the deadline.

The court rejected the applicant's claimed value based on an informal statement by the CEO, as well as the respondent's heavily discounted offer.

Relying on the implied share value from the amalgamation exchange ratio, the court fixed the fair value at $0.236 per share, awarding the applicant $271,400 plus partial indemnity costs.

The plaintiffs brought an action for negligent misrepresentation against the defendants, alleging that steam generators purchased for resale in the Former Soviet Union failed to perform as represented in promotional brochures.

The defendants counterclaimed for unpaid invoices.

The court dismissed the plaintiffs' action, finding it was statute-barred under the former Limitations Act because the plaintiffs knew or ought to have known of the equipment's deficiencies well outside the six-year limitation period.

The court also found no detrimental reliance on the brochures.

The defendants' counterclaim was dismissed for lack of proof.

Schindler Elevator Corporation brought an action to perfect a construction lien for unpaid services and materials supplied for the installation of elevators at the Women's College Hospital redevelopment project.

The general contractor, Walsh Construction/Bondfield Partnership (WBP), counterclaimed for delay impact losses, liquidated damages, and indemnification for penalties, alleging Schindler's delayed performance critically impacted the project schedule.

The court found that while Schindler breached the subcontract by delayed performance, WBP failed to prove that Schindler's delays impacted the critical path of the project or caused the majority of the claimed damages.

Schindler was awarded judgment for the unpaid subcontract balance, less minor set-offs for direct impacts, and WBP's claims against Schindler and its surety, Zurich, were dismissed.

The applicant tenant sought relief from forfeiture after being locked out of its banquet hall business by the respondent landlord due to rent arrears accumulated during the COVID-19 pandemic.

The court found that the landlord had lulled the tenant into believing rent was reduced or in abeyance, and that the landlord's re-entry on October 19, 2020, violated the Protecting Small Businesses Act, 2020.

The court granted the application, ordering the landlord to restore possession and granting the tenant relief from forfeiture.

The plaintiff, the Ontario Securities Commission, moved for summary judgment seeking a declaration that the transfer of a Welland home from the defendants, a husband and wife, to the wife alone was a fraudulent conveyance intended to defeat creditors.

The husband owed an outstanding fine to the plaintiff for breaches of the Securities Act.

The court found that the transfer was made for nominal consideration and with the acknowledged intent to protect the property from creditors.

The court granted summary judgment, declaring the conveyance fraudulent and void, and alternatively found that the husband retained an interest in the property via resulting and constructive trusts.

In an application seeking a declaration that certain promissory notes were forged, the respondents brought a motion under Rule 30.04(2) to compel the applicants to produce the original promissory notes for inspection.

The applicants argued they did not possess the originals and that the motion was an abuse of process.

The Master granted the motion, ordering both parties to produce any original promissory notes in their possession or provide sworn evidence explaining their whereabouts, emphasizing the importance of verifying pivotal documents.

The defendants brought a motion to strike various portions of the plaintiff's statement of claim, including claims for an oppression remedy under the Ontario Business Corporations Act, conspiracy, and breaches of the Ontario Human Rights Code, as well as references to mediation and inflammatory language.

The court granted the motion in part, striking the OBCA oppression, conspiracy, and OHRC claims (with leave to amend), a specific paragraph regarding mediation content (without leave to amend), and the term 'looting' (with leave to amend).

Costs were awarded to the defendants.