Ronald Allan

On a motion concerning appellate jurisdiction, the court held that paragraph one of an order dated June 20, 2025 was interlocutory and did not prevent the respondents from relying on prior findings made in related proceedings.

Because the order was interlocutory, the appeal could not proceed and was quashed.

The court awarded costs of the motion to the moving party on a partial indemnity basis, fixed at $7,000 inclusive of disbursements and HST.

The applicant bank sought to appoint a receiver over two residential properties in Burlington owned by the respondent corporations, which had defaulted on a loan agreement.

The respondents challenged the venue, arguing the application should be transferred from Hamilton to the Central West Region where the properties and respondents were located.

The court addressed procedural issues regarding venue transfer motions under the Rules of Civil Procedure and Practice Directions, finding that the parties had improperly circumvented the prescribed transfer process.

On the merits, the court appointed a receiver, finding that the respondents were in material default, had failed to cure defaults despite multiple opportunities, and that appointment was just and convenient under the applicable statutory framework.

Buyers sought rescission of an agreement of purchase and sale for a residential property and return of their deposit after discovering water in the basement on their third pre-closing visit.

Sellers sought a declaration of breach, damages, and forfeiture of the deposit.

The court found that the detrimental condition warranty clause in the agreement was limited to the sellers' knowledge and belief at the time of execution, not at closing.

Since the sellers had no knowledge of any water problem before signing the agreement, they did not breach the warranty.

The buyers breached by refusing to close.

The court awarded damages to the sellers totaling $206,703.56, representing the difference in sale price, rental costs, and other incidental expenses.

The plaintiff, a minority shareholder and director of Ecounion International Ltd., brought a motion seeking an injunction to prevent the sale of the company's gas station property and the appointment of a receiver (interim or investigative).

He alleged corporate oppression and misappropriation of funds by the majority shareholder and his son.

The court dismissed the motion, finding that the plaintiff failed to establish a serious issue to be tried for his oppression claim.

The court determined there was no basis to enjoin the mortgagee's enforcement rights, as the mortgage was valid, in default, and the plaintiff had personally benefited from the refinancing.

Furthermore, the court found no irreparable harm to the plaintiff and that the balance of convenience did not favour appointing a receiver, deeming it an unnecessary expense given the plaintiff's access to financial records and the lack of strong evidence of misappropriation by the defendants.

This is a costs endorsement following the disposition of three appeals.

The parties settled the issue of costs by agreement.

The appellant was ordered to pay costs of $13,750, all inclusive, to the respondents.

The appellant, Voreon Inc., appealed the dismissal of three applications arising from a business relationship breakdown.

Two appeals concerned real estate developments (Higher Living and Eminence Living) and the interpretation of a Settlement Agreement versus a shareholders agreement regarding promissory notes.

The third appeal (MHH appeal) involved a mortgage's validity, a set-off claim for a promissory note, and the transfer of condominium units.

The Court of Appeal dismissed the Higher Living and Eminence Living appeals, affirming the application judge's finding that the Settlement Agreement superseded the shareholders agreement and discharged the promissory notes.

However, the MHH appeal was allowed in part, remitting the issues of the $64,135 set-off note and the transfer of the parking/storage units to the Superior Court for adjudication, citing unaddressed issues and a palpable error regarding party status.

The moving parties brought motions for leave to appeal the order of Koehnen J. dated June 9, 2022.

The Divisional Court dismissed the motions for leave to appeal with no order as to costs.

Medcap Real Estate Holdings Inc. appealed a bankruptcy order made against it, arguing the application judge erred in not exercising discretion to dismiss the application under s. 43(7) of the Bankruptcy and Insolvency Act.

Medcap claimed it could pay its debts, the application was improperly motivated, and a bankruptcy would serve no purpose.

The Court of Appeal dismissed the appeal, finding Medcap failed to prove its ability to pay all debts, that the applicants had an improper motive, or that a bankruptcy would be purposeless, thereby upholding the application judge's discretionary decision.

The applicants brought three applications against their former business partner and his related corporations, seeking payments under various promissory notes and shareholders agreements related to joint real estate development projects.

The respondents argued that the parties had previously entered into a binding Settlement Agreement that superseded the notes and agreements.

The court dismissed the applications, finding that the Settlement Agreement was a binding contract, not merely an agreement to agree, and that the respondents' conduct did not amount to a repudiation that the applicants had accepted.

The court held that the applicants were limited to the payouts and terms agreed upon in the Settlement Agreement.

The plaintiffs brought a motion for summary judgment seeking $1,580,000 owed under a Promissory Note and secured by a mortgage.

The defendants argued that the debt was subject to various set-offs, including unpaid rent, and that the Promissory Note was part of a broader context of dealings.

The court found that the Promissory Note was not a bill of exchange but a valid loan agreement containing an entire agreement clause, which precluded the defendants' claims for legal and equitable set-off.

Summary judgment was granted for the principal amount, but the defendants were granted leave to proceed with their counterclaim regarding a specific contractual set-off for rents against accrued interest.

The plaintiffs brought a motion for summary judgment to enforce a Promissory Note for $293,210 against the defendants.

The defendants argued that the note was invalid and raised a counterclaim for set-off based on various alleged debts.

The court found that the defendants' evidence lacked credibility, the counterclaim was statute-barred and without merit, and the Promissory Note was valid and enforceable.

Alternatively, the court found the defendants liable on the basis of unjust enrichment.

The motion for summary judgment was granted and the counterclaim was dismissed.

The plaintiffs brought a motion for a Mareva injunction against the defendants, alleging civil fraud and breach of trust in connection with a real estate development venture.

The plaintiffs invested funds in two properties, which the defendants subsequently mortgaged and sold without the plaintiffs' knowledge or consent.

The court found a strong prima facie case of fraud and a serious risk of asset dissipation, granting the Mareva injunction and ancillary orders requiring the defendants to disclose their worldwide assets and account for the sale proceeds.

The applicants sought substantial indemnity costs after successfully obtaining a declaration that their tenancy was residential, not commercial, thereby establishing the Landlord and Tenant Board's exclusive jurisdiction over the remaining issues.

The court declined to award elevated costs, finding that the applicants' offers to settle did not engage Rule 49.10 consequences and the respondent's conduct, while concerning, did not meet the threshold for reprehensible, scandalous, or outrageous behavior warranting substantial indemnity.

However, the court deemed it appropriate to award the applicants partial costs for the emergency injunction and the preliminary jurisdictional ruling, considering the work done and the modest amount at stake, ultimately awarding $12,000.

The applicant sought a declaration that their tenancy was governed by the Residential Tenancies Act (RTA) and to continue an interim injunction against lockout.

The respondent sought a declaration that the Commercial Tenancies Act (CTA) applied and an order for possession.

The court applied the "predominant purpose" test under RTA s. 5(j) and s. 202, considering all circumstances including the actual use of the premises, the parties' intentions, and the landlord's knowledge.

The court found the tenancy's predominant purpose was residential, thus the RTA applied, and the Landlord and Tenant Board had exclusive jurisdiction.

The respondent failed to discharge the burden of proving the s. 5(j) exemption.

This costs endorsement followed a successful application by the Respondent concerning the interpretation of a settlement agreement, entitling the Respondent to a $100,000 holdback.

The Respondent sought partial indemnity costs of $24,050.52.

The Applicants, despite being unsuccessful, sought $7,000.00 in costs, alleging unnecessary steps by the Respondent.

The court, applying Rule 57.01 and s. 131(1) of the Courts of Justice Act, awarded the Respondent $12,000.00 in fees plus disbursements.

The judge noted that the time and effort expended by both sides was disproportionate to the amount in issue and that both parties adopted a "scorched earth" attitude by raising extraneous issues.

This application concerned the interpretation of a settlement agreement regarding a $100,000 holdback amount.

The applicants (mortgagors) argued that their registration of additional security was satisfactory, and the respondent (mortgagee) could not unreasonably reject it.

The respondent contended it had sole and absolute discretion to determine satisfaction with the additional security.

The court agreed with the respondent's interpretation, finding that the discretion extended to the adequacy of the security, not just its registration.

The court dismissed the applicants' claims for misrepresentation against the respondent but found no misrepresentations by the applicants.

The holdback amount was ordered to be released to the respondent.

Following the dismissal of the appellants' Small Claims Court appeal, the successful respondent sought costs on a substantial indemnity basis fixed at $22,810, or alternatively on a partial indemnity basis fixed at $15,395.

The appellants argued the requested costs were disproportionate to the issues, noting their own costs were $5,794.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, including the necessity of defending the appeal and the reasonable hourly rate of the respondent's junior counsel.

The court fixed costs on a partial indemnity basis at $13,395, payable by the appellants to the respondent.

The appellants appealed a Small Claims Court judgment ordering them to pay $1,300 in debt and $5,000 in punitive damages.

The appellant lawyer had sent emails threatening the respondent with criminal prosecution for fraud in relation to a civil dispute over physiotherapy fees.

On appeal, the appellants argued the trial judge erred by admitting privileged settlement conference communications and by awarding punitive damages.

The Divisional Court dismissed the appeal, finding the admission of the settlement communications did not taint the trial and the lawyer's threats of criminal prosecution were reprehensible conduct justifying punitive damages.

This case involved a contract dispute between two dance studio owners regarding the sale of a business.

The defendant, a former student, agreed to purchase the plaintiff's studio space, chattels, and student body for $45,000, hire the plaintiff as a teacher, and allow the plaintiff's daughter to dance for free.

A dispute arose over HVAC repairs and the lease assignment, leading the plaintiff to break her lease to facilitate the defendant's occupancy.

The defendant subsequently repudiated the agreement, refused payment, and terminated the plaintiff's employment.

The court found the defendant breached the agreement, relying on principles of estoppel and substantial performance, and dismissed the defendant's counterclaim.

The plaintiff was awarded $45,000 for the business, $21,760 for wrongful termination, and $4,455 for the daughter's dance lessons.

The appellant construction company appealed a decision by the application judge who found that the respondents had made lasting improvements to property sufficient to trigger claims under the Conveyancing and Law Property Act, s. 37, and in one case, proprietary estoppel.

The appellant argued the application judge erred by failing to direct a trial of the contested factual issues or convert the application into an action.

The Court of Appeal dismissed the appeal, finding no error in proceeding by application where the respondents had not objected and the factual issues were apparent from the outset.

The Court also found no palpable and overriding error in the application judge's factual findings regarding the lasting improvements made by the respondents.