Robert D. Malen

The defendants brought a motion to strike the statement of claim and dismiss the action due to the plaintiff's failure to advance the litigation, including failing to attend an examination for discovery.

The plaintiff's counsel also sought to be removed from the record due to an irreparable breakdown in the solicitor-client relationship, as the plaintiff had retrieved its file and ceased communication.

The court granted the motion to remove counsel and gave the plaintiff 60 days to appoint new counsel or file a notice of intention to act in person, failing which the defendants could renew their motion to strike the claim.

The respondent brought a motion to remove the court-appointed liquidator of a real estate company, alleging a conflict of interest and collaboration with the applicant Estate.

The liquidator sought approval of its activities, fees, and an extension of a listing agreement for the sale of properties.

The court dismissed the motion to remove the liquidator, finding no evidence of bad faith or blatant intentional action contrary to the interests of the parties.

The court approved the liquidator's fees and the extension of the listing agreement, noting the fees were fair and reasonable.

Following a 17‑day commercial trial in which the plaintiff obtained judgment for specific performance and damages exceeding its earlier settlement offer, the court determined the appropriate costs award.

The plaintiff relied on Rule 49 of the Rules of Civil Procedure, arguing that a written settlement offer transmitted by email triggered substantial indemnity costs consequences.

The court held that the email constituted a valid Rule 49 offer notwithstanding the “without prejudice” designation and rejected the defendants’ argument that such wording removed the offer from Rule 49.

In assessing quantum, the court applied the principles under s.131 of the Courts of Justice Act and Rule 57.01, emphasizing reasonableness rather than strict adherence to actual legal fees.

The court fixed costs at a lump sum reflecting partial and substantial indemnity principles and adjustments for conduct that lengthened the proceedings.

The plaintiff and defendants entered into an Option Agreement for the purchase and sale of a retro-fitted self-storage facility.

The plaintiff exercised a 'Put' option requiring the defendants to purchase the property at an appraised value.

The defendants refused to close, alleging the appraisal contained a manifest error and that the roof was defective, breaching a warranty.

The court found no manifest error in the appraisal and that the roof issues were maintenance problems which the defendants, as property managers, had failed to address.

The court granted specific performance of the sale at the appraised value of $7.3 million and awarded the plaintiff $728,080.05 in carrying costs.

The plaintiffs brought an action seeking a declaration that their mortgage debt to the defendants had been fully paid through a 'savings' agreement whereby the plaintiff worked off the debt on construction projects.

The defendant mortgagee counterclaimed for enforcement of the mortgages and a writ of possession.

The court found that the purported 'savings' agreement was a forgery and dismissed the plaintiffs' claim.

The court granted judgment to the defendant on the mortgages and authorized a writ of possession, but postponed its execution pending the outcome of a related proceeding concerning a recent power of sale transaction.