Robert P. Hine

The appellant appealed a summary judgment decision in a failed real estate transaction.

The respondent seller brought an action for breach of contract after the appellant buyer failed to close due to inability to obtain financing.

The respondent subsequently sold the property at a lower price and recovered damages.

The Court of Appeal upheld the summary judgment, finding no genuine issues requiring trial and no error in the motion judge's application of law to the facts.

The appeal was dismissed with costs fixed at $15,000 all inclusive.

The Plaintiff, Samiy Retail Inc., brought a motion for summary judgment in an action arising from a failed real estate transaction.

The Plaintiff sought damages for breach of an Agreement of Purchase and Sale (APS), including a shortfall from resale, financing costs, and forfeited deposits.

The Defendant, Sajish Kallarakkal, argued there were genuine issues for trial, including the validity of the APS due to late deposit, identification of parties, and late waiver of conditions.

The court found no genuine issue for trial, concluding that a binding contract existed and was breached by the Defendant.

The motion for summary judgment was granted, the counterclaim dismissed, and damages awarded to the Plaintiff.

This decision concerns the quantum and standard of costs awarded following successful motions by CB Bridle Path Inc. and Jia Development Inc. against 2708320 Ontario Ltd. cob Viceroy Homes.

The motions sought to discharge Viceroy's frivolous and vexatious construction lien and dismiss its action for non-compliance with a prior order.

The court awarded full indemnity costs of $85,000 to Bridle Path and substantial indemnity costs of $45,000 to Jia, finding Viceroy's conduct, including fabricating a lien for extortionary purposes, to be egregious.

The court also pierced the corporate veil to hold Viceroy's principal, Andrew Sun, jointly and severally liable for Jia's costs.

The defendants, Jia Development Inc. and CB Bridle Path Inc., brought a motion under section 47 of the Construction Act to discharge a construction lien filed by the plaintiff, 2708320 Ontario Ltd. cob Viceroy Homes, and vacate the related certificate of action.

They also sought to dismiss the plaintiff's action due to its failure to appoint new counsel after its previous lawyers withdrew.

The court found the lien claim to be frivolous, vexatious, and an an abuse of process, citing lack of evidence for the claimed work and improper purpose.

Additionally, the plaintiff corporation failed to comply with the order to retain new counsel or obtain leave for non-lawyer representation.

The court granted the defendants' motions, discharging the lien, vacating the certificate of action, and dismissing the plaintiff's action.

The plaintiff moved to strike the self-represented defendant's amended statement of defence for failure to pay two prior costs orders.

The court found that only the costs order made in the current proceeding could be relied upon to strike the pleading.

The defendant claimed impecuniosity but failed to provide sufficient financial evidence to support the claim.

The court granted the motion conditionally, ordering that the defence be struck unless the defendant pays the outstanding costs from the prior order and the current motion within 30 days.

The appellants appealed an order enforcing a settlement agreement.

The motion judge had found a binding agreement existed despite the absence of formally executed minutes of settlement and rejected the appellant's claim of no intent to be bound.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the communications objectively reflected an enforceable agreement not conditional on signed minutes, and no error in declining to exercise discretion to not enforce the settlement.

The plaintiffs brought a motion for a preservation order regarding shares in a start-up company, alleging they owned two-thirds of the shares held by the defendant.

The defendant claimed sole ownership and had recently sold a portion of the shares.

The court found the plaintiffs met the test for a preservation order under Rule 45.

However, to mitigate prejudice from fluctuating share prices, the court ordered that the defendant could sell the shares but must pay the proceeds into court.

This endorsement addresses the costs of a successful motion brought by 10313033 Canada Inc., Madeleine Bonhomme, and Sameh Mansour (the Moving Parties) to strike Antranik Kechichian's Third Party Counterclaim.

The Counterclaim was struck as duplicative, frivolous, vexatious, an abuse of process, and a collateral attack.

The court found Kechichian's conduct abusive and his pleading devoid of merit, justifying an award of costs on the substantial indemnity scale.

The court adjusted the Moving Parties' requested disbursements and fees, primarily by removing costs associated with counsel's travel from Toronto to Ottawa.

This addendum to a prior ruling on a motion addresses the remaining aspects of a request to strike a Third Party Counterclaim.

The Moving Parties (10313033 Canada Inc., Madeleine Bonhomme, and Sameh Mansour) sought to strike portions of Antranik Kechichian's counterclaim against Bonhomme and Mansour, alleging abuse of process due to duplication with other proceedings, irreconcilable positions, and the potential for inconsistent findings.

The court found that the claims against Bonhomme regarding the Aylmer franchise and against Mansour regarding the Innes Road franchise were indeed an abuse of process, as they could have been pleaded in existing actions involving corporations controlled by Bonhomme and Mansour, or presented irreconcilable positions.

Consequently, the remaining paragraphs of the counterclaim against the Moving Parties were struck.

The Moving Parties (10313033 Canada Inc., Madeleine Bonhomme, and Sameh Mansour) brought a motion to strike the counterclaim filed by Antranik Kechichian.

The counterclaim sought over $21M in damages, alleging conspiracy and other misconduct related to two changes in ownership of the Laurier Optical franchise system.

The Moving Parties argued the counterclaim was a collateral attack on Quebec Superior Court vesting orders, disclosed no reasonable cause of action, and was frivolous, vexatious, an abuse of process, and duplicative of other proceedings.

The court found the counterclaim to be a collateral attack on the vesting orders and frivolous, vexatious, and an abuse of process.

It also found no reasonable cause of action against Bonhomme and Mansour in their personal capacities, except for specific claims related to unpaid rent.

The counterclaim was struck in its entirety against 10313033 Canada Inc. and largely against Bonhomme and Mansour, with the claims for unpaid rent against the individuals adjourned for further determination.

The plaintiff, Amos Tayts, brought a motion for leave to amend his amended statement of claim.

The defendants opposed specific proposed amendments, categorizing them into claims for breach of 'Zavet Group Terms' and breach of trust after the limitation period, pleadings of evidence, and withdrawal of an admission.

The court granted leave for all proposed amendments, finding that they did not introduce new causes of action after the limitation period, were sufficient for pleading purposes, and constituted necessary particulars rather than mere evidence.

The court reserved the issue of costs thrown away to the trial judge or summary judgment judge, but fixed the costs of the motion at $10,000.00 payable by the defendants to the plaintiff.

The applicant was successful on a motion for a certificate of pending litigation and in defeating a cross-motion to stay the application.

In determining costs, the court rejected the applicant's revised costs outline, which substantially increased the hours claimed and was submitted after the fact, relying instead on the initial costs outline to protect the integrity of the process.

The court awarded the applicant $30,000 in partial indemnity costs, which included full indemnity costs for an unreasonable motion brought against the applicant's representative.

The moving party sought leave to issue a certificate of pending litigation (CPL) regarding a commercial property, claiming an interest based on a Sales Representation Agreement.

The responding party brought a cross-motion to stay or dismiss the application, arguing the moving party was an unregistered broker under the Real Estate and Business Brokers Act (REBBA) and operated under an unregistered business name contrary to the Business Names Act (BNA).

The Master dismissed the cross-motion, finding the transaction was part of an ongoing business venture rather than a simple real estate trade, and that the business name non-registration was inadvertent.

The Master granted the CPL, noting the moving party established a triable issue regarding its interest in the property, but ordered the CPL postponed to existing and construction financing to avoid harming the development project.

The moving party sought partial indemnity costs of $88,608.95 plus disbursements following a successful motion to convert the responding party's application into a counterclaim in a separate action.

The court found the costs claimed to be clearly excessive and noted the moving party failed to separate the costs of the motion from the costs of the application.

Agreeing with the responding party, the court ordered that the costs of the motion be awarded in the cause, as the merits had yet to be adjudicated and the work product would be used at trial.

Fountain Asset Corp. brought an application to enforce contractual rights to share options and warrants issued by First Global Data Limited.

First Global Data defended on the basis that the options and warrants were granted as part of a financing transaction bearing a criminal rate of interest.

First Global Data brought a motion to convert the application to an action and consolidate it with a recently commenced 2017 Action.

The court granted the motion, finding that material facts were in dispute, expert evidence was required, and there was a significant risk of inconsistent verdicts if the application proceeded separately.

The claims in the application were directed to be advanced as a counterclaim in the 2017 Action.

The defendants moved to set aside a default judgment for $499,363.29 (CAN) plus costs, which was entered due to their failure to defend an action for collection of gas turbine filter sales.

The court applied the three-part test from Morgan v. Toronto (City) Police Services Board, assessing delay, explanation for default, and arguable defence on the merits.

The Master found a lengthy, inadequately explained delay and an insufficient explanation for the initial default.

Furthermore, the defendants failed to demonstrate an arguable defence with an "air of reality" regarding the identity of contracting parties, product deficiencies, delivery delays, or the return of unsold filters.

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

The defendants brought a motion for summary judgment seeking to dismiss portions of a civil action alleging damages arising from the disclosure of confidential taxpayer information by a government employee to police during an arson investigation.

The estate of the deceased plaintiff alleged reputational harm, loss of property, and Charter breaches.

The court held that the cause of action relating to damage to property arose before the deceased’s discharge from bankruptcy and therefore vested in the bankruptcy trustee under the Bankruptcy and Insolvency Act.

As a result, the estate lacked legal capacity to pursue claims relating to property loss.

The court dismissed those claims but allowed the personal claim for damage to reputation to proceed to trial, while striking Charter breach allegations that could not survive the claimant’s death.