Ronald B. Moldaver

The appellants appealed a judgment granting the respondent's application for the sale of five commercial properties under the Partition Act.

The parties were co-tenants, and the respondent, holding a minority interest, refused to consent to the appellants' management and leveraging plans after the appellants acquired their majority interest.

The Divisional Court dismissed the appeal, affirming that a co-tenant has a prima facie right to compel a sale under the Davis test, and that the respondent's conduct was not malicious, oppressive, or vexatious, but rather a predictable response to a business relationship breakdown.

The plaintiff sought leave to appeal an order declaring a mistrial and awarding solicitor and client costs thrown away to the defendants, following the plaintiff's late production of documents during trial.

The court found the order was interlocutory.

The motion for leave was brought out of time, and the court declined to extend the time due to an unexplained delay of over two years and a lack of settled intention to appeal.

Furthermore, the court held that even if time were extended, leave would be denied as the costs order was discretionary and there was no conflicting decision or good reason to doubt its correctness.

The motion was dismissed with costs.

The appellant bank sought recovery of funds paid under a clean irrevocable letter of credit, alleging the respondent beneficiary’s call was fraudulent because the proceeds were applied to a different project under a cross-collateralization agreement unknown to the bank.

The court upheld the trial judge’s conclusion that there was no fraud, emphasizing the wording of the letter of credit, the legal advice obtained before the call, and the existence of formal grounds supporting the call in any event.

The related claims in mistake of fact and unjust enrichment failed because they were tied to the fraud allegation.

The respondent’s appeal from the trial costs disposition was also dismissed, including its request for solicitor-and-client costs and its effort to shift third party costs to the bank.

The appellant general contractor paid funds into court following a garnishment order obtained by a judgment creditor of its subcontractor.

The general contractor opposed the payment out of the funds to the creditor, arguing it was a cestui que trust of the funds under the Mechanics' Lien Act or that it stepped into the shoes of lien claimants it had paid directly.

The Court of Appeal rejected these arguments and ordered the funds paid out.

The Supreme Court of Canada dismissed the appeal in a brief oral judgment, finding no reason to disturb the Court of Appeal's decision.