Romesh Hettiarachchi

The plaintiff, Conquest Steel Inc., brought a motion for summary judgment to recover funds allegedly owed by the defendant, Polar Racking Inc., for custom-manufactured products.

The motion also sought leave to amend the title of proceedings to reflect the plaintiff's name change.

The court granted leave to amend the title and awarded judgment to the plaintiff for undisputed invoiced amounts and for uninvoiced products where the defendant had repudiated the contracts.

However, the plaintiff's claims for lost profit on a terminated purchase order and for storage fees were dismissed due to insufficient proof of damages and lack of contractual entitlement, respectively.

The applicant mother brought a summary judgment motion seeking declarations against the respondent father and the Director of Land Titles.

The mother sought declarations that she and the father were spouses, that the Newmarket property was a matrimonial home, and that she was entitled to compensation from the Land Titles Assurance Fund due to a fraudulent mortgage taken by the father.

The court dismissed the claims for declaratory relief against the Director, finding it lacked jurisdiction to determine compensation from the Fund at first instance, as the statutory scheme designates the Director for such determinations, subject to appeal.

The court also found that the mother had not met the summary judgment test for the relationship issues due to conflicting evidence regarding a foreign divorce and separation agreement.

The issue regarding setting aside the TELB mortgage settled.

This endorsement addresses the costs for two applications arising from a failed residential real estate transaction.

The Sellers, who were successful in the main applications (dismissing the Buyers' application and granting their own for damages), sought substantial indemnity costs.

The Buyers argued for a lower partial indemnity award.

The court found that the Sellers' offer to settle, though with limited compromise, triggered Rule 49.10, entitling them to substantial indemnity costs from the offer date.

Despite a significant discrepancy in legal fees and hours between the parties, the court applied a reduction for potential "overkill" by the Sellers' counsel, ultimately awarding the Sellers $55,000.00 in all-inclusive costs.

The appellant, Thanuja Dhuruvasangary, appealed her removal as attorney for property for her mother, Logaranee Dhuruvasangary, and the appointment of the Public Guardian and Trustee (PGT) as Logaranee’s guardian of property.

The appellant argued the application judge erred by refusing an adjournment, failing to apply the correct test, reversing the burden of proof, and concluding there was sufficient evidence of misconduct.

The Court of Appeal dismissed the appeal, finding no error in the denial of the adjournment given the urgency and overwhelming evidence of misconduct.

The court also affirmed that the application judge properly understood and applied the two-part test for terminating a power of attorney and did not reverse the burden of proof.

The plaintiff sought a case conference to establish a timetable for the defendant to serve her Affidavit of Documents and for examinations for discovery under Rule 50.13 of the Rules of Civil Procedure.

Despite the court's request for proposed timetables, the defendant's counsel advised their client intended to self-represent and failed to provide an alternative timetable.

Finding the defendant's actions to be a delay tactic, the court approved the plaintiff's proposed timetable, ordering the defendant to deliver her Affidavit of Documents by February 29, 2024, and for examinations for discovery to occur on one of the plaintiff's proposed dates in April or May 2024.

This case involved two cross-applications arising from a failed residential real estate transaction.

The buyers (Adusei and Gruenberg) sought relief from forfeiture of their $90,000 deposit, while the sellers (Ravindra and Manogaran) sought a declaration that the buyers breached the agreement of purchase and sale (APS), release of the deposit, and damages.

The court found that the buyers breached the APS and that the sellers were ready, willing, and able to close.

The buyers' argument that damages should be assessed at an earlier date due to anticipatory repudiation was rejected, as the sellers had affirmed the contract.

The court concluded that the sellers were entitled to the $90,000 deposit and an additional $110,000 in damages, representing the difference between the APS price and the property's market value on the closing date.

The buyers' application for relief from forfeiture was dismissed.

The applicant sought the return of a $37,500 deposit after the respondent terminated an Agreement of Purchase and Sale due to the applicant's unauthorized attempt to assign the property.

The court found that the applicant breached clear contractual clauses prohibiting assignment without prior written consent, which was not obtained.

The court rejected arguments of contractual ambiguity, unreasonableness in the respondent's discretion, and unconscionability of the forfeiture, finding the deposit proportionate and the forfeiture not exceptional.

The application was dismissed, and costs were awarded to the respondent.

This appeal concerned a failed residential real estate transaction where the buyers' financing fell through, leading the sellers to terminate the Agreement of Purchase and Sale (APS) and retain the deposit.

The sellers subsequently resold the property for a higher price.

The buyers sought specific performance, damages, or relief from forfeiture.

The Court of Appeal upheld the application judge's decision, finding that the sellers were entitled to terminate the APS as they were ready, willing, and able to close, and that relief from forfeiture was not warranted, despite the sellers realizing a profit on the resale.

The court also addressed the duty of honest performance and the effect of anticipatory repudiation.

The applicant and her mother signed an agreement of purchase and sale for a property.

The applicant's uncle claimed a one-third interest in the property based on an alleged oral agreement.

The applicant brought an application seeking a declaration that the uncle had no interest, and seeking various orders against her mother regarding the closing of the transaction.

The Superior Court of Justice held that the uncle had no interest in the property, as the alleged oral agreement was not proven and the doctrine of part performance did not apply to overcome the Statute of Frauds.

However, the court dismissed the claims against the mother, finding no legal basis under the Vendors and Purchasers Act to grant the requested relief, which did not relate to title objections.

The applicants sought specific performance of an agreement of purchase and sale for a residential property, punitive damages, or in the alternative, relief from forfeiture and return of their $50,000 deposit.

The respondents terminated the agreement after the applicants' financing fell through and they requested an extension of the closing date.

The court found that the termination was due to the applicants' inability to close, not merely their request for an extension.

The court dismissed the application, finding no improper termination, no bad faith by the respondents, and no unconscionability in the respondents retaining the deposit, despite reselling the property for a higher price.

Following a successful urgent motion for leave to issue a Certificate of Pending Litigation, the applicants sought costs on a substantial indemnity basis, relying on offers to settle.

The court found that the offers to settle did not meet the timing requirements of Rule 49.10(1) and contained terms beyond the scope of the motion.

The court awarded the applicants costs on a partial indemnity basis, fixed at $5,000 inclusive of fees, disbursements, and taxes, payable within 30 days.

The applicants sought a Certificate of Pending Litigation (CPL) against a residential property after their Agreement of Purchase and Sale failed to close.

They claimed specific performance or, alternatively, damages.

The respondents denied breaching the agreement and opposed the CPL, having entered into a second agreement to sell the property.

The court granted the CPL, finding that the applicants had a triable claim to an interest in land and that the property was unique, making damages an unsatisfactory remedy, especially given the rising real estate market and the applicants' inability to use their deposit for another purchase.

The court also balanced the prejudice, noting the respondents' decision to enter a second agreement while the applicants' claim was active.

Stanley Moore died with a will whose residual clauses were ambiguous regarding the distribution of a predeceased brother's share.

The Estate Trustee sought judicial interpretation of these clauses.

The court applied the "arm-chair rule" to discern the testator's intent, which was to benefit two family branches roughly equally.

It was determined that the predeceased brother's share should pass to his children, giving meaning to "per stirpes" and balancing it with the "absolute" gift clause.

The court ordered that the share of the predeceased brother, John Frederick Moore, pass to his two children, Kenneth Moore and Kevin Moore, in equal shares.

The plaintiffs sought leave to appeal an interlocutory order regarding undertakings and refusals.

The court denied the motion, noting that the moving party failed to comply with the Rules of Civil Procedure by not filing a motion record, factum, or book of authorities.

Furthermore, the court found no palpable or overriding error in the motion judge's determination of the relevant time period for document production.

The Defendants Kevin Philpott and Mark Philpott sought costs after a partially successful motion where the Plaintiff's Statement of Claim was struck with leave to amend, but their primary request to dismiss the action as an abuse of process was denied.

The court characterized the defendants' victory as 'pyrrhic' due to their failure on the abuse of process argument and their lawyer's conduct in a companion action.

Considering the procedural issues from both parties, the court ordered costs in the cause, fixed at $8,500, rejecting the defendants' request for substantial indemnity costs.

The defendants, Kevin and Mark Philpott, moved to dismiss the plaintiff's action as an abuse of process or for failure to disclose a reasonable cause of action.

The court found that the action was not an abuse of process, rejecting the re-litigation and circumvention arguments.

However, the court determined that the Statement of Claim failed to properly plead reasonable causes of action for fraud, corporate oppression, and negligence.

Consequently, the Statement of Claim was struck in its entirety with leave to amend.

The defendant successfully opposed the plaintiff's motion for summary judgment, resulting in the dismissal of the plaintiff's claim on a loan agreement due to the expiry of the limitation period.

The defendant sought partial indemnity costs.

The plaintiff argued costs should be denied or set off against the unpaid debt because the defendant received a windfall.

The court rejected the plaintiff's arguments, noting the plaintiff had two years to bring the action and failed to do so.

The court awarded the defendant costs fixed at $15,164.

A proposed purchaser under a second agreement of purchase and sale sought leave to intervene in litigation between the original purchaser and the vendor concerning the enforceability of an earlier agreement for the sale of condominium units.

The proposed intervenor also sought a mandatory order compelling completion of the second agreement, declaratory relief, and security for costs.

The court held the proposed intervenor would not assist in resolving the dispute between the original contracting parties and would merely duplicate the vendor’s position.

Any damages arising from failure to complete the second agreement would be compensable and properly pursued against the vendor in a separate proceeding.

The court dismissed the motion for intervenor status and related relief, refused the vendor’s request to withdraw its undertaking not to transfer title, and directed that the dispute proceed by expedited trial on the Commercial List.

The plaintiff brought a motion for summary judgment against the defendant to enforce a debt obligation under a promissory note.

The defendant admitted to signing the note and acknowledging the debt but raised a defence of duress during cross-examination, which was not pleaded.

The court applied the full appreciation test under Rule 20 and found no genuine issue requiring a trial, as the defendant's evidence did not support a finding of operative duress.

Summary judgment was granted in favour of the plaintiff for the acknowledged debt amount.