Roberto R. Cucci

The plaintiff mortgagee brought a motion seeking to examine the defendants' former lawyers and for a declaration that solicitor-client privilege had been waived.

The defendants, mortgagors, alleged they did not understand various mortgage-related documents they signed, claiming non est factum and forgery, thereby putting the legal advice received from their former counsel into issue.

The court granted the plaintiff's motion, finding that the defendants' assertions directly challenged the legal advice and their contemporaneous understanding of the documents, thus implicitly waiving solicitor-client privilege.

The former lawyers were ordered to attend examinations, and conditional solicitor and client costs were awarded to the plaintiff.

Following a failed asset purchase agreement, the plaintiff by counterclaim (TNS) sought damages for the defendant by counterclaim's (MAS) failure to return chattels and the late return of other chattels.

The court determined that damages should be based on the fair market value of the unreturned chattels as of the date they ought to have been returned, and the diminished fair market value for the late-returned chattels.

Relying on an appraisal report, the court awarded TNS $13,167 in damages, inclusive of pre-judgment interest, to be paid out of the original purchase deposit held in trust.

The plaintiff brought a motion to set aside the dismissal of an action arising from Minutes of Settlement regarding a failed partnership investment.

The settlement required arbitration to conclude by March 31, 2012, but the parties continued to negotiate and schedule arbitration dates well past this deadline.

When the defendants retained new counsel in 2016, they argued the arbitrator was not properly appointed and the deadline had passed.

The court applied the doctrine of promissory estoppel, finding the defendants' conduct impliedly promised not to rely on the strict limitation period.

The motion was granted, the dismissal was set aside, and partial indemnity costs were awarded to the plaintiff.

The defendants, Sharon Gooden-Allen and Desmond Allen, defaulted on a second charge on their property, which was subsequently transferred from Surrinder Jass to Sean Wilson.

Wilson then entered an Agreement of Purchase and Sale (APS) with Sean Brown.

The Allens challenged the validity of the assignment and the propriety of the sale, bringing a motion to stay the APS.

Wilson brought a cross-motion to have an order to continue the action made *nunc pro tunc*.

The court found the assignment of the charge to Wilson to be valid and the APS bona fide, dismissing the Allens' motion to stay the sale.

Wilson's motion for a *nunc pro tunc* order to continue was granted, allowing him to enforce the judgment and exercise his rights as chargee in possession.

The plaintiff brought a motion for summary judgment seeking the return of an $85,000 deposit from a failed asset purchase transaction.

The agreement stipulated that the deposit, held in trust, would be returned if the defendant failed to satisfy certain conditions, including providing an HST Clearance Certificate and a WSIB Purchase Certificate, by a specified deadline.

The defendant failed to meet most conditions by the deadline, arguing the breaches were minor and technical.

The court found no genuine issue requiring a trial, ruling that the defendant's breaches were central to the agreement, not merely technical, and that strict compliance was a fundamental term.

The plaintiff was granted summary judgment for the return of the $85,000.

The defendant's counterclaim for damages related to the plaintiff's use of assets was reserved for a separate two-day hearing.

The defendant moved for security for costs against the plaintiff based on outstanding cost awards and an allegation that the action was frivolous and vexatious.

The plaintiff alleged a beneficial ownership interest in family lands and resisted the motion by asserting impecuniosity and that the claim was not plainly devoid of merit.

The court held that while unpaid cost awards satisfied the threshold under Rule 56.01(1)(c), the plaintiff established genuine impecuniosity and the claim met the low threshold of not being plainly devoid of merit.

Accordingly, ordering security would unjustly terminate a potentially meritorious claim.

The court also addressed costs following the discontinuance of a corporate co‑plaintiff and awarded costs of the action and motion against that entity.

Prospective purchasers and current tenants brought a motion to discharge a certificate of pending litigation registered by a former tenant who claimed an interest in the property based on an alleged agreement of purchase and sale.

The court held that the moving parties had standing to seek discharge despite the withdrawal of the counterclaim against them, as they were innocent third‑party purchasers in possession who had paid deposits toward the purchase.

The respondent failed to demonstrate a reasonable claim to an interest in land, relying only on an unexecuted agreement with a non‑owner and unsupported assertions of readiness to close.

Applying the principles under s. 103(6) of the Courts of Justice Act and the factors governing CPL discharge, the court found that damages would be an adequate remedy and that the prejudice to the purchasers outweighed any prejudice to the respondent.

The certificate of pending litigation was therefore discharged.

The applicant sought a stay of a Master's order discharging a certificate of pending litigation over a development property pending appeal.

Applying the three‑part test for a stay, the court found the applicant failed to establish irreparable harm because the property was a commercial investment and any loss could be compensated through damages.

The court also held the balance of convenience favoured allowing the pending sale to a third‑party purchaser to proceed, noting the applicant’s weak claim to beneficial ownership and the uncertainty surrounding an alternative offer arranged by the applicant.

The motion for a stay was dismissed.

The plaintiffs brought a motion to amend their statement of claim to add two proposed corporate defendants more than two years after the alleged fraud.

The responding parties opposed the motion, arguing the claims were statute-barred.

The court dismissed the motion, finding no genuine issue of discoverability and holding that the doctrine of misnomer does not apply when a plaintiff seeks to add new parties as co-defendants alongside the originally named defendant, rather than correcting a mistakenly named party.