Richard Macklin

The Court of Appeal for Ontario dismissed Lynne Catherine Foulidis’s motion for a panel review and to set aside the Deputy Registrar’s order dismissing her appeal for delay.

The court found that the motion judge correctly concluded the appeal lacked merit and that the criteria for an extension of time to perfect the appeal were not met.

The court reviewed the trial judge’s findings regarding the retainer agreement and legal fees, and found no palpable and overriding error.

Costs were awarded to the respondent.

This appeal concerned whether an order appointing an arbitrator under section 10 of the Arbitration Act, 1991, is appealable.

The appellant argued that the application judge erred in appointing the arbitrator and in not limiting the scope of the arbitration.

The respondent moved to quash the appeal, asserting that section 10(2) of the Act precludes appeals from such appointments.

The Court of Appeal held that the power to appoint an arbitrator under section 10(1)(b) applies when parties fail to agree or one party refuses to follow through on an agreement to appoint.

This interpretation is consistent with the Act's purpose of limiting court intervention and appeal rights in arbitration matters.

The court found that the application judge's order, including the determination of the arbitrator's jurisdiction, was made under section 10(1) and was therefore not appealable.

The appeal was quashed.

This endorsement addresses the costs arising from a dismissed motion brought by Evergreen Community (Burlington) Ltd. for an injunction and an order for inspection against FirstCanada ULC.

FirstCanada, the successful party in the motion, sought costs on a mixed partial/substantial indemnity scale, while Evergreen argued for partial indemnity.

The court awarded FirstCanada costs on a partial indemnity scale, finding that Evergreen was not unreasonable in rejecting FirstCanada's non-Rule 49 settlement offer, which included a broad release that would have precluded future claims.

The total costs awarded to FirstCanada were $175,214.10.

This appeal concerned a failed agreement of purchase and sale (APS) for a residential development, where the appellant (buyer) had an express obligation to obtain severance approval but failed to communicate or take steps for almost five years.

The respondent (seller) subsequently refused access to the property, deeming the APS terminated.

The appellant sought declarations that the APS was valid and for specific performance.

The application judge dismissed the appellant's application, finding the appellant in breach due to inordinate delay and the respondent justified in treating the APS as ended.

The Court of Appeal upheld this decision, affirming that where an APS has no fixed deadline, performance must occur within a reasonable time, and that inordinate, unexplained delay can constitute a fundamental breach justifying termination without a prior notice of a new deadline, depending on the circumstances.

Evergreen Community (Burlington) Ltd. brought a motion seeking an interim or interlocutory injunction against FirstCanada ULC to prevent alleged ongoing environmental contamination (LNAPL) from FirstCanada's property onto Evergreen's, and an order for inspection under Rule 32 to conduct groundwater and soil testing.

Evergreen argued the contamination stalled its billion-dollar development project.

The court dismissed both requests, finding that the injunction sought was mandatory and Evergreen failed to meet the strict 'strong prima facie case' test, particularly regarding irreparable harm and the ongoing nature of contamination.

The court preferred FirstCanada's expert evidence that a Record of Site Condition (RSC) or Risk Assessment could be obtained despite existing contamination.

The order for inspection was denied due to procedural unfairness and lack of demonstrated necessity for the upcoming summary judgment motion.

The defendants brought a motion seeking dismissal of the actions due to the plaintiffs' alleged breach of court orders regarding privileged documents.

In the alternative, they sought removal of the plaintiffs' counsel and an increase in security for costs.

The court denied the motion, finding that there were reasonable excuses for the alleged breach of the Crown Privilege Order and that no likely prejudice was suffered by the defendants.

The request for increased security for costs was also denied, as it would be unjust to the plaintiffs and there was no evidence of their inability to pay.

This is an appeal and cross-appeal concerning a failed real estate transaction.

The appellant vendor sued the respondent purchaser for breach of an Agreement of Purchase and Sale (APS) and sought loss of bargain damages.

The motion judge found the respondent liable but erred in calculating damages by relying on expert evidence instead of the difference between the APS price and the actual resale price.

The Court of Appeal allowed the appeal, holding that where a vendor reasonably mitigates damages by reselling the property in an arm's length transaction, the loss of bargain damages are the difference between the original APS price and the resale price, and expert evidence is not required.

The cross-appeal, which challenged the pre-judgment interest rate and the deduction of interest on the deposit, was dismissed.

This appeal concerned a failed real estate transaction where the appellant vendor sued the respondent purchasers for losses after the purchasers refused to close.

The motion judge granted summary judgment to the purchasers, finding the vendor was not ready to close on the scheduled date as the house was not substantially complete, thus terminating the agreement.

The Court of Appeal upheld the motion judge's decision, affirming that the purchasers were ready to close and did not act in bad faith by obtaining financing, and that the vendor's miscalculation of the situation was its own responsibility.

The appeal was dismissed.

The appellants appealed the dismissal of their breach of contract claim, which was dismissed under Rule 60.12(b) for their persistent failure to comply with interlocutory orders requiring them to permit the respondents to inspect disputed limestone.

The Court of Appeal found no merit in the appellants' position, noting their history of non-compliance and attempts to avoid the inspection order.

The court upheld the motion judge's decision to dismiss the claim, finding it amply justified, and denied leave to introduce fresh evidence blaming former counsel, stating such complaints are for a negligence action.

The applicant brought a motion under Rule 59.06(2) to vary a prior court order that required his companies to continue paying remuneration to the respondents pending the completion of a court-ordered share buyout.

The applicant argued that the ongoing payments caused financial hardship due to the COVID-19 pandemic and sought to terminate the payments or treat them as a set-off against the share purchase price.

The court dismissed the motion, finding that the ongoing remuneration was a foreseeable consequence of the original order requested by the applicant, and the pandemic was not a new fact that would have altered the original decision.

This is a costs endorsement following an appeal.

The appellant, Yong Yeow Tan, was ordered to pay costs to the respondents, C & K Mortgage Services Inc. and the Receiver for Camilla Court Homes Inc. and Elite Homes Inc. C & K Mortgage Services Inc. was awarded $20,000, and the Receiver was awarded $7,500, inclusive of taxes and disbursements.

The moving party purchaser entered into an agreement of purchase and sale for a pre-construction condominium and paid a $500,000 deposit, $400,000 of which went directly to the developer.

The developer defaulted on its first mortgage, and a receiver was appointed.

The receiver sought to disclaim the purchaser's agreement.

The purchaser brought a motion to compel the receiver to complete the sale, arguing he had an equitable interest in the property.

The court dismissed the motion, finding that the purchaser's interest was contractually subordinate to the first mortgagee and that the equities did not justify overriding the mortgagee's legal priority.

The plaintiff moved to certify a class action against the estate of an orthodontist for surreptitiously video recording patients and sought approval of a settlement.

The court granted certification for settlement purposes and approved the settlement, finding it fair, reasonable, and in the best interests of the class, given the limited assets of the estate and the challenges of individual proof of damages.

The settlement provided $425,000, including $350,000 for class members, an administration fund, and partial indemnity costs.

This decision addresses the costs of an application and counter-application concerning corporate ownership and control of the "Tetra group" of companies.

The court previously dismissed the application brought by Lois Struthmann and Tansy Serediak and generally granted the relief sought by Aloysius (Al) Struthmann in his counter-application.

Mr. Struthmann, as the successful party, sought costs on a partial indemnity basis.

The court awarded Mr. Struthmann costs fixed at an all-inclusive amount of $38,000.00, payable jointly and severally by Lois Struthmann and Tansy Serediak.

The court rejected arguments that no costs should be awarded due to good faith or the absence of a formal liability finding, emphasizing the indemnity principle and the unsuccessful parties' refusal to accept an earlier settlement overture.

The applicants, the estranged wife and daughter of the respondent, brought an application for an oppression remedy under the Business Corporations Act, seeking to remove the respondent from the family's chemical business and force him to sell his shares to them.

The respondent brought a counter-application seeking the reverse.

The court found that the relationship between the parties had irreparably broken down, resulting in a corporate deadlock.

Applying section 207 of the Act, the court ordered the respondent, who was the founder and primary manager of the business, to buy out the applicants' shares at fair market value, as this aligned with the parties' reasonable expectations.

The plaintiffs, two major banks, sued to recover funds wired to the defendant money services business as a result of a fraud perpetrated by third parties.

The defendant brought a motion for summary judgment, arguing it received the funds without knowledge of the fraud and changed its position in good faith by arranging equivalent payments in Chinese yuan to a foreign account.

The court dismissed the motion, finding genuine issues for trial regarding whether the defendant actually changed its position in good faith, given conflicting expert evidence on its anti-money laundering compliance and the lack of direct evidence regarding the foreign exchange transactions.

AIMCO and CHC MPAR LP entered into a co-ownership agreement to develop a student housing project.

After the project faced zoning rejections, AIMCO and CHC independently acquired a neighbouring property without including MPAR, a 50% shareholder in the general partner.

AIMCO subsequently triggered a shotgun clause to buy out the limited partnership's interest.

MPAR opposed the buyout and applied for relief, alleging oppression, breach of fiduciary duty, and breach of contract.

The court dismissed MPAR's application, finding no oppressive conduct, fiduciary duties, or contractual breaches, as the agreements explicitly excluded obligations regarding outside business opportunities.

AIMCO's application for specific performance of the shotgun clause was granted.

The defendants brought a motion for security for costs against the plaintiffs, seeking additional security for the discovery stage and for the period from discoveries to trial.

Previously, $45,000 in security had been ordered, with the court finding that 1636833 Ontario Inc. (833) had insufficient assets.

On this motion, the plaintiffs provided new, more comprehensive evidence of 833's financial condition, including significant bank balances, investment accounts, and revenue from an active business relationship.

The court found that 833 now demonstrated sufficient liquid and unencumbered assets in Ontario to satisfy a potential costs award, dismissing the defendants' motions for further security for costs.

The decision reiterated the limits of speculative inquiries into a company's future financial prospects on such motions.

The defendant brought a motion for an order requiring the plaintiff to post security for costs under Rule 56.01(1).

The plaintiff conceded the initial onus but argued it had a good chance of success at trial regarding its claim for wrongful termination of a distributorship agreement.

The court found that the plaintiff demonstrated a good chance of success on the issues of payment terms and alleged breach of a mutual exclusivity provision.

The motion for security for costs was dismissed, and costs were awarded to the plaintiff.

The applicant purchaser sought a refund of her deposit after failing to close a condominium purchase, arguing she validly rescinded the agreement due to the vendor's failure to complete common elements (parkette and gates) and a material change in the disclosure statement.

The respondent vendor counter-applied for a declaration of breach, forfeiture of deposit, and further damages.

The court dismissed the purchaser's application, finding that the failure to complete common elements was not a fundamental breach or a material change under the Condominium Act, and that a right to rescind cannot be exercised after the agreement has been validly terminated by the vendor.

The vendor's application was allowed regarding the breach and deposit forfeiture, but the claim for damages beyond the deposit was ordered to proceed to trial due to disputed material facts regarding mitigation.