Robert Daniel Malen

The defendants brought motions to stay or dismiss two related actions, arguing that the corporate plaintiff had not properly authorized the commencement of the proceedings.

The plaintiff brought cross-motions seeking leave to issue its statements of claim *nunc pro tunc*.

The court found that the actions were properly authorized by a director of the plaintiff corporation, emphasizing the liberal construction of the Rules of Civil Procedure to resolve disputes on their merits.

Consequently, the defendants' motions were dismissed, and the plaintiff's cross-motions were also dismissed as unnecessary.

The court also addressed the application of simplified procedure rules regarding examinations and awarded costs to the plaintiff.

The plaintiff sought specific performance of an agreement of purchase and sale for a 75% interest in 200 acres of land and shares in a bare trustee corporation.

The agreement failed to close due to disputes over directors' resolutions for share transfers and extensions.

The court found the defendant vendors breached their good faith obligation to close and failed to deliver a valid directors' resolution.

The defendants' arguments of no agreement to extend, no obligation to extend, mutual mistake, and the purchaser not being in funds were rejected.

Specific performance was deemed the appropriate remedy due to the uniqueness of the property.

The third-party claim against the vendors' lawyers for negligence was dismissed, as their advice was consistent with a proper interpretation of the joint venture agreement.

The plaintiff sought full indemnity costs of $58,030 against the defendants (indemnitors) following a successful motion, relying on a lease provision.

The responding indemnitor argued the lease provision applied only to the tenant, not the indemnitors.

The court agreed, finding no basis for full indemnity costs against the indemnitors and noting issues with the plaintiff's dockets.

The court awarded partial indemnity costs, reducing the claimed fees for a second counsel's attendance and reducing disbursements for lack of particularity, fixing total costs at $28,815.28.

The plaintiff landlord brought a summary judgment motion against four indemnitors of a commercial lease.

The indemnitors argued they were released from their obligations because the tenant had not been in 'habitual default' during the first three years, and alternatively, that the landlord waived prior defaults in an assignment agreement.

The court found that repeated late payments of rent constituted habitual default, preserving the indemnities.

The court also rejected arguments of waiver, failure to mitigate damages, and non est factum raised by one indemnitor.

Summary judgment was granted in favour of the landlord for $239,052.33.

Multiple purchasers of commercial condominium units alleged misrepresentation and overcharging by the developer and sought interlocutory relief preventing the developer from disposing of its remaining assets pending trial.

The moving parties argued the developer had limited assets and that dissipation would frustrate recovery of any judgment.

The court held that pre‑judgment restraint of assets is an extraordinary remedy requiring a strong prima facie case, evidence of asset dissipation outside the ordinary course of business, and proof of irreparable harm.

The evidence did not establish that the developer was disposing of assets improperly or that irreparable harm would result.

The motion to restrain disposition of assets was dismissed.

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 appellants appealed a trial judgment in a construction lien action that found the respondent's lien valid and dismissed the appellants' counterclaim.

The dispute centered on the interpretation of a contract rider and whether a maximum upset price applied to work required under subsequent city approvals, specifically regarding additional asphalt and a sealant.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly applied principles of contract interpretation, and that his interpretation made commercial sense and was supported by the parties' subsequent conduct.

The appellant contractor appealed a trial judgment ordering it to pay the respondent developer $185,967.08 for the cost of replacing a defectively constructed bicycle path.

The appellant argued the trial judge erred in appreciating the expert evidence and in failing to deduct for betterment.

The Court of Appeal dismissed the appeal, finding the trial judge was entitled to prefer the respondent's expert evidence and correctly concluded that a deduction for betterment would be inequitable since the respondent would transfer the path to the City and receive no value for the new path.

The appellants guaranteed loan facilities provided by the respondent bank to a corporate debtor.

After the debtor defaulted, the bank appointed a receiver and sued the appellants for the shortfall.

The motion judge granted summary judgment to the bank.

On appeal, the appellants argued the bank acted commercially unreasonably by not allowing the debtor to be sold as a going concern and that material variations to the loan discharged their guarantees.

The Court of Appeal dismissed the appeal, finding the bank had no duty to continue extending credit and that the variations were authorized by the guarantee agreements.

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.

The appellant developer appealed a trial judgment finding it was not entitled to bill respondent builders for certain repairs in a residential building project due to failure to comply with a contractual notice provision.

The developer argued the provision was ambiguous and relied on promissory estoppel.

The respondent builders cross-appealed an order requiring them to post security for potential municipal repairs.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that the notice provision was unambiguous, promissory estoppel was not established, and the builders had a clear contractual obligation to maintain the security deposit.

The plaintiff appealed a Master's decision dismissing her motion to amend her statement of claim and add a new party defendant.

The plaintiff originally pleaded and swore in an affidavit for a Certificate of Pending Litigation that she advanced $150,000 as a loan secured by a mortgage.

Five years later, she sought to amend her claim to allege the funds were an equity investment.

The Divisional Court upheld the Master's decision, finding that the proposed amendment was untenable at law and an abuse of process because it fundamentally contradicted the plaintiff's prior sworn evidence upon which she had obtained relief.

The appellants appealed an order striking their claim for breach of fiduciary duty against their former solicitors.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that a breach of fiduciary duty requires a breakdown of trust and loyalty, such as dishonesty or a conflict of interest.

It does not extend to situations where only the quality of advice or representation is at issue.

The appeal was dismissed with costs awarded to the respondents.

The landlord applied for rectification of a commercial lease to include a clause from the offer to lease requiring the tenant to restore the premises to their original condition.

The application judge granted the application.

The tenant appealed.

The Court of Appeal allowed the appeal, finding that the application judge erred by making findings on disputed evidence and by finding that the offer to lease was a prior contract.

The Court held that the offer to lease was merely an agreement to agree, as it contained a clause rendering it void if a formal lease was not agreed upon.

Therefore, the landlord could not establish the elements of rectification.

The appellants appealed an order of the Superior Court of Justice.

On consent, and in view of the disposition of related appeals, the Court of Appeal allowed the appeal in accordance with the consent terms set out in the filed draft order, without expressing any view on the correctness of the judgment appealed from.

The appellant mortgagee sought to recover on a mortgage covenant from beneficial owners alleged to be undisclosed principals of a corporate titleholder that executed the mortgage under seal.

The Court held that the sealed contract rule remains part of Canadian common law and bars suit by or against undisclosed principals on contracts executed under seal.

It rejected the argument that the rule does not apply to corporate agents and held that Harmer v. Armstrong did not create a direct right of action against beneficiaries or principals.

Applying s. 13(1) of the Land Registration Reform Act, the Court held the mortgage was deemed under seal for all purposes, making the beneficial owners not liable on the covenant.

The request to abolish the sealed contract rule was refused because the proposed reform was not shown to be necessary and risked far-reaching commercial uncertainty.