Robert S. Choi

This is an appeal from a summary judgment ordering payment on a promissory note.

The appellant had defaulted on the loan and filed no evidence on the motion for summary judgment.

The motion judge granted summary judgment and refused to stay execution pending a third-party claim.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision, as the respondent's evidence supported an independent contract and the appellant failed to provide contradictory evidence.

This decision addresses the costs of a defendant's motion to dismiss an action, which resulted in the Statement of Claim being struck with leave to amend.

The defendant sought partial indemnity costs, arguing that the plaintiff's initial Statement of Claim was deficient and failed to raise a tenable cause of action.

The court found the defendant's requested costs reasonable, noting the plaintiff's failure to respond to costs submissions and the deficiency of the original pleading.

The court also clarified that Rule 49 offers to settle did not apply as the action was not dismissed, and pro bono services were not a factor in costs assessment.

The defendant brought a motion to dismiss the plaintiff's claim for breach of contract, induced breach of contract, and abuse of process.

The plaintiff, a landlord, sought damages after the defendant, a tenant, did not vacate a residential unit by the closing date of a sale, leading to the plaintiff's inability to deliver vacant possession.

The court, relying on the Residential Tenancies Act as a complete code, found that the plaintiff's claims as pleaded could not succeed because the defendant had statutory rights to remain until an eviction order was made, and the plaintiff had not pleaded that the defendant failed to abide by such an order.

The motion to strike the Statement of Claim was granted, but the plaintiff was given leave to amend.

The plaintiffs, Dentalcorp Health Services Ltd. and related entities, sought an interim, interlocutory, and permanent injunction against the defendants, Dr. Arsalan Poorsina and his professional corporations, for alleged breaches of non-competition and non-solicitation agreements.

These agreements stemmed from the plaintiffs' 2016 purchase of five dental clinics from Dr. Poorsina.

The court found that the plaintiffs had a strong prima facie case that the restrictive covenants were breached and were enforceable, given they were negotiated by sophisticated parties in the context of a business sale.

However, the motion for injunction was dismissed because the plaintiffs failed to demonstrate irreparable harm that could not be compensated by damages, and the balance of convenience favoured the defendants, particularly due to the plaintiffs' significant delay in seeking injunctive relief and the fact that the restrictive covenant's term was nearing its end.

The applicants sought to set aside two consent judgments obtained by Owens Wright LLP against its insolvent clients, Greenvilla, arguing abuse of process and fraudulent preference under the Assignments and Preferences Act.

The court found that Owens Wright obtained the judgments through abusive maneuvers, including failure to provide proper notice and ignoring a Notice of Intent to Defend from Greenvilla's receiver.

The court also found the transactions to be fraudulent preferences, citing numerous indicia of fraud and the non-arm's length relationship between Owens Wright and Greenvilla.

The judgments were declared null and void, and Owens Wright was ordered to repay the funds.

This is an appeal from an order of the Commercial List judge concerning insolvency proceedings.

The appellants, Bryton, sought to exercise an option to purchase a property and obtain orders declaring the option valid and immune from challenge by other creditors under various acts (Fraudulent Conveyances Act, Assignments and Preferences Act, Canada Business Corporations Act oppression remedy, and Bankruptcy and Insolvency Act).

The application judge dismissed Bryton's request for a vesting order and declaratory relief, finding that the claims were not res judicata and that declaratory relief was not the appropriate vehicle to pre-emptively bar unadjudicated creditor claims.

The Court of Appeal upheld the application judge's decision, confirming that the validity of the option was not res judicata and that the refusal to grant declaratory relief was a proper exercise of discretion, as the application procedure was not suitable for dismissing unproven claims.

The plaintiff, KEB Hana Bank Canada, sued the defendant, Gil Shcoylar, for breach of agreements of purchase and sale (APS) after the defendant repudiated an unconditional offer to purchase three properties and failed to pay a $100,000 deposit.

The defendant argued the agreements were not binding due to alleged lack of signature and that no damages were sustained as the properties were later sold.

The court found the APSs valid and binding, accepting the real estate broker's testimony over the defendant's contradictory denials of signature.

The court ruled that an unpaid, unconditional deposit can be forfeited, awarding the plaintiff the $100,000 deposit.

This endorsement concerns a motion for summary judgment that was adjourned due to the absence of necessary parties (a mortgagee and another partner in a declared partnership) and improper uploading of voluminous materials to Caselines.

The court directed the moving party to serve the necessary parties, re-upload exhibits separately, and provide hyperlinks in factums, adjourning the motion for a full day hearing.

KEB Hana Bank Canada (first mortgagee) brought a motion seeking declarations that an assessment of Power of Sale expenses, including legal costs, initiated by 2227473 Ontario Inc. o/a Huntington Cross Capital (second mortgagee) under the Mortgages Act was improper and a nullity.

KEB argued that only the mortgagor could initiate such an assessment or that legal costs should be assessed under the Solicitors Act, and that the Assessment Officer lacked jurisdiction to award interim costs.

The court dismissed KEB's motion, finding that a second mortgagee is an "interested person" entitled to requisition an assessment under s. 43(4) of the Mortgages Act, that the assessment was not a nullity despite the form, that legal costs incidental to the Power of Sale are properly assessed under the Mortgages Act, and that the Assessment Officer has jurisdiction to award interim costs.

The plaintiff brought a consent motion to transfer the action from Newmarket (Central East Region) to the Toronto Region.

The court reviewed the motion record and applied the factors under Rule 13.1.02 of the Rules of Civil Procedure.

Finding that the interests of justice favoured the transfer so that the matter could be heard on the Commercial List in accordance with a prior judicial direction, the court granted the order.

The appellant, 2088556 Ontario Inc., appealed a trial judgment that ordered specific performance and an abatement in favour of the respondent, M & M Homes Inc., regarding an Agreement of Purchase and Sale for commercial land.

The appellant had failed to provide required services by a specified deadline, leading to the respondent suing for specific performance.

The Court of Appeal dismissed the appeal, upholding the trial judge's decision on specific performance, the abatement, the discretionary dismissal of the appellant's motion to amend pleadings, and rejecting claims of bias and the appeal of full indemnity costs.

The moving defendants, Greenvilla Development Group Inc. and Alan Lam, brought a motion to set aside a default judgment of $504,589.53 plus significant interest, rendered against them in July 2018.

The court considered the five factors for setting aside default judgments under Rule 19.08: promptness, plausible excuse for default, arguable defence on the merits, relative prejudice to parties, and integrity of justice.

Despite delays in prosecuting the motion, the court found the moving defendants had an arguable limitations defence and that the prejudice of upholding the large judgment outweighed the plaintiff's prejudice.

The motion was granted on terms, requiring the moving defendants to pay $15,500 in costs and file a statement of defence within 30 days, with the case to proceed by summary procedure.

This appeal concerned the interpretation of a commercial lease termination provision, specifically whether proposed remodelling rendered continued possession by the tenant "impracticable." The motion judge had granted summary judgment to the landlord, finding the renovations bona fide and that the premises would cease to exist.

The Court of Appeal found that the motion judge erred in construing the termination provision too narrowly and in isolation from other lease provisions, failing to consider whether the tenant could remain in possession during renovations.

The appeal was allowed, the summary judgment and costs order were set aside, and the action was remitted to the Superior Court for continuation.

The appellants appealed a motion judge's decision that prevented them from discontinuing their action against certain defendants and granted summary judgment dismissing the action against those defendants.

The Court of Appeal found that the motion judge erred in interpreting the Rules of Civil Procedure regarding when pleadings are closed in a multi-defendant action, clarifying that pleadings are not closed until they are complete against all defendants.

However, the Court upheld the motion judge's alternative finding that the notice of discontinuance constituted an abuse of process and affirmed the grant of summary judgment, as well as the award of substantial indemnity costs, finding no genuine issue for trial and that the action was frivolous and vexatious.

The tenant plaintiffs brought an action to prevent the new landlord from terminating their commercial lease.

The landlord counterclaimed and brought a motion for summary judgment, arguing it validly exercised the 'termination for remodelling' clause in the lease.

The tenant argued the landlord acted in bad faith and was estopped from terminating early due to a prior lease renewal.

The court found the landlord properly invoked the termination clause, as the proposed demolition and remodelling would render the tenant's continued possession impracticable.

The court found no evidence of bad faith or promissory estoppel.

The action was dismissed and the counterclaim allowed.

The purchaser obtained an order for specific performance, a vesting order, and substantial indemnity costs after a failed real estate transaction.

The vendor appealed and obtained a certificate of stay for the costs order.

The purchaser moved to set aside the certificate of stay, arguing the costs were to be collected via an abatement, not a direct payment.

The vendor moved to stay the vesting order pending appeal.

The Court of Appeal dismissed the purchaser's motion, finding the costs order was automatically stayed under r. 63.01 as an order for the payment of money.

The Court granted the vendor's motion to stay the vesting order, finding a risk of irreparable harm if the property was transferred pending appeal, and ordered the appeal expedited.

The purchaser obtained an order for specific performance, a vesting order, and substantial indemnity costs after a failed real estate transaction.

The vendor appealed and obtained a certificate of stay for the costs order.

The purchaser moved to set aside the certificate of stay, arguing the costs were to be collected via an abatement, not a direct payment.

The vendor moved to stay the vesting order pending appeal.

The Court of Appeal dismissed the purchaser's motion, finding the costs order was automatically stayed under r. 63.01 as an order for the payment of money.

The Court granted the vendor's motion to stay the vesting order, finding a risk of irreparable harm if the property was transferred pending appeal, and ordered the appeal expedited.

The defendant, 2088556 Ontario Inc., brought a motion on the second day of trial to amend its statement of defence, seeking to withdraw key admissions and eliminate its counterclaim.

The proposed amendment introduced a new defence asserting the agreement of purchase and sale had terminated.

The court dismissed the motion, finding that the defendant failed to meet the three-part test for withdrawing admissions under Rule 51.05, particularly regarding inadvertence and the significant, non-compensable prejudice it would cause the plaintiff, M & M Homes Inc., who had relied on the original pleadings.

The defendant, 2088556 Ontario Inc., brought a second oral application for an adjournment of the trial, following the dismissal of a previous adjournment application.

The basis for the second request was a pending motion for leave to appeal the initial dismissal, which the defendant argued created uncertainty.

The court dismissed the application, affirming that the right to appeal interlocutory orders does not interrupt the course of litigation during trial.

The court emphasized that mid-trial rulings do not become final for appeal purposes until judgment is entered, and that allowing such appeals to halt proceedings would lead to scheduling chaos.

The defendant, 2088556 Ontario Inc., brought a motion for an adjournment of a scheduled trial.

The court dismissed the application, citing the defendant's history of delay, non-compliance with court orders, and lack of diligence in preparing for trial, including failing to retain counsel or an expert.

The court found that granting an adjournment would cause significant prejudice to the plaintiff, M & M Homes Inc., whose ability to recover costs was already in doubt due to the defendant's questionable property transfers.