Sam A. Presvelos

On a motion to transfer related Small Claims Court proceedings, the court refused to transfer a straightforward contract and unjust enrichment claim concerning the proceeds of jointly owned collectible coins, but transferred an unrelated oppression claim seeking corporate and declaratory relief beyond Small Claims Court jurisdiction.

Applying the governing transfer principles, the court held the moving party failed to show the coin claim could not be justly and fairly resolved under Small Claims Court procedures.

The court emphasized that transfer discretion is exercised sparingly and should not be used to obtain a strategic advantage by displacing a plaintiff's chosen forum.

The oppression claim was transferred because its pleaded relief plainly exceeded the jurisdiction of the Small Claims Court.

The vendor plaintiff brought a motion for summary judgment against the purchaser defendant for failing to close a real estate transaction.

The purchaser had entered into an agreement of purchase and sale for $1,755,000, later amended to $1,700,000, but was unable to obtain financing by the closing date.

The court found the purchaser committed an anticipatory breach by communicating inability to close, the vendor accepted the repudiation, and the agreement was terminated.

The vendor appropriately mitigated damages by reselling the property for $1,650,290.

Summary judgment was granted in favour of the vendor for damages of $78,906.49, with the purchaser's $70,000 deposit applied against that amount.

The Ontario Land Tribunal held a first Case Management Conference regarding an appeal for compensation for the expropriation of a subsurface portion of a property by Metrolinx.

The parties were not prepared for the conference but indicated they were engaged in productive mediation discussions and communicating with other nearby property owners.

The Tribunal found it premature to schedule a second conference and advised the parties that Tribunal-led mediation could be arranged.

The appellants appealed an order dismissing their motion to set aside a default judgment in a mortgage enforcement action.

Prior to the appeal hearing, the appellants paid out the principal and interest, and the mortgage was discharged.

The respondent raised a preliminary issue that the appeal was moot.

The Divisional Court agreed, finding no live controversy and declining to exercise its discretion under the Borowski test to hear the moot appeal, as there were no collateral consequences or issues of broad public importance.

The appeal was quashed with no costs awarded.

The court granted summary judgment in favour of the commercial landlord, 1660841 Ontario Ltd., against the tenant, 2259778 Ontario Inc., for breach of lease obligations.

The court found no genuine issue for trial on either liability or damages, awarding the landlord $68,043.52 in damages and $5,000 in costs, plus pre- and post-judgment interest.

The decision applies the Supreme Court’s guidance in Hryniak v. Mauldin regarding summary judgment and the use of fact-finding powers under Rule 20.

The decision addresses a motion by the plaintiff, James Pushie, in a property dispute with Carmela Guidarelli following the breakdown of their romantic and business relationship.

The court considers the admissibility of evidence previously ruled inadmissible, the scope of evidence at trial, the amendment of pleadings, and ongoing disclosure obligations.

The court grants the plaintiff leave to amend his pleadings, clarifies that evidence previously excluded at the application stage may be tendered at trial subject to relevance and admissibility, and sets out procedural directions for the conduct of the trial.

The plaintiff, First of Five Incorporated, sought an interlocutory injunction to prevent the defendants, Recipe Unlimited Corporation and J.S.M. Corporation (Ontario) Ltd., from terminating a franchise agreement, lease, and sublease pending the outcome of litigation.

The court found that the plaintiff had a contractual right to renew the franchise, subject to certain conditions, and that the issues raised—including good faith, payment disputes, and the effect of the Arthur Wishart Act—were serious and required trial.

The court held that irreparable harm would result if the injunction were not granted, and the balance of convenience favored the plaintiff.

The injunction was granted, and costs were awarded to the plaintiff.

The appellant franchisee appealed a motion judge's decision denying an interlocutory injunction to prevent the termination of its franchise agreement.

The Divisional Court allowed the appeal, finding the motion judge's two-paragraph reasons were insufficient to permit meaningful appellate review as they failed to address the renewal clause, the factual disputes, or the RJR-MacDonald test.

The Court declined to decide the injunction on the merits, remitting it to a different judge.

The Court also held that the franchisor's undertaking not to terminate the agreement pending the determination of the injunction motion remained binding through the appeal process.

The moving party sought leave to appeal a lower court order dated December 7, 2023.

The Divisional Court granted leave to appeal and ordered that the appeal be expedited.

The court also directed that the moving party's motion for interim relief be scheduled on an expedited basis before a single judge.

The plaintiff, a franchisee, brought an urgent motion seeking a stay of a prior decision denying injunctive relief and a mandatory injunction to restore possession of the franchise premises, pending leave to appeal to the Divisional Court.

The franchisor had locked out the plaintiff after the initial injunction motion was dismissed.

The court found it lacked jurisdiction to grant the requested relief, determining that the Divisional Court, as the court to which leave to appeal was being sought, was the proper forum for such interim orders under section 134(2) of the Courts of Justice Act.

The motion was transferred to the Divisional Court.

The plaintiff sought an injunction to prevent the defendants from terminating their franchise agreement.

The court noted that the agreement was set to expire in April 2024 with no automatic renewal clause.

Finding that an injunction would unfairly extend the agreement indefinitely pending litigation, and that the plaintiff could seek monetary damages, the court dismissed the motion.

The appellant, a not-for-profit corporation, appealed an application judge's order setting terms for its upcoming annual general meeting and board elections following a disrupted meeting and internal governance dispute.

The appellant argued the terms regarding membership eligibility and election procedures were inconsistent with its by-laws.

The Divisional Court dismissed the appeal, finding the application judge had broad discretion under the Not-for-Profit Corporations Act to impose terms for fair elections and made no palpable and overriding error in her factual findings regarding membership.

The moving party, a not-for-profit corporation, sought an urgent stay of an application judge's order prescribing the process for determining membership and voting rights for an upcoming annual general meeting, pending an appeal.

The Divisional Court applied the three-part test for a stay pending appeal.

Finding that the appeal raised a serious issue, that there was potential for irreparable harm due to the history of disruption at previous meetings, and that the balance of convenience favoured a stay given the expedited appeal date, the court granted the stay.

The defendants in a franchise dispute moved for security for costs against the plaintiffs, alleging the plaintiffs' parent companies were in financial difficulty.

The court dismissed the motion, finding the defendants failed to meet the initial threshold of showing the specific plaintiff corporations had insufficient assets.

Furthermore, the court declined to exercise its discretion to order security because the defendants' counterclaim was inextricably connected to the main action, and the motion was brought with undue delay shortly before trial.

The appellant appealed the dismissal of his application under the Partition Act for the sale of a property registered solely in the respondent's name.

The application judge had dismissed the claim, finding on a paper record that the funds advanced by the appellant were a loan, not an investment giving rise to a trust interest.

The Divisional Court allowed the appeal, holding that the application judge erred in law by assessing credibility on material facts in dispute without directing a trial to hear viva voce evidence.

The judgment was set aside and a trial of the whole application was ordered.

The appellants sought to appeal the dismissal of their application challenging outdoor gathering restrictions imposed as public health measures during the COVID-19 pandemic, which was initially dismissed for lack of public interest standing.

The Court of Appeal determined that the underlying application was moot because the challenged regulations were no longer in force.

The court declined to exercise its discretion to hear the appeal regarding Mr. Baber's private interest standing, finding that this issue was also moot and that a decision would not resolve any live controversy or bind future hypothetical challenges.

Forest Grove Homes Limited appealed a Licence Appeal Tribunal decision ordering Tarion Warranty Corporation to repair three Ontario Building Code violations related to the roof of a new home owned by Elaine Ducas.

Ducas cross-appealed, seeking an order requiring Tarion to investigate and correct the underlying cause of water penetration, which the Tribunal found was likely ice damming.

The Divisional Court dismissed both the appeal and the cross-appeal, finding no palpable and overriding error in the Tribunal's factual findings regarding the building code violations, and agreeing that the statutory warranty did not require the builder to investigate the cause of the leak absent proof that a design flaw caused the ice damming.

This is an appeal from a judgment awarding damages in lieu of specific performance for a failed residential real estate transaction.

The appellants (vendors) argued that the respondents (purchasers) were not entitled to specific performance or damages in lieu after accepting the return of their deposit, and that the motion judge used the wrong appraisal date for calculating damages.

The Court of Appeal declined to entertain the deposit argument as it was a new issue on appeal.

However, the Court found that the motion judge erred by not using the actual sale price of the replacement property as the best indication of its value for damages calculation, instead relying on an earlier appraisal.

The appeal was allowed, and the damages awarded to the respondents were reduced from $150,000 to $56,000.

The plaintiff, Orpheus Medica Inc., sought an interlocutory injunction to restrain former employees and their new company, Deep Biologics Inc., from using a government grant and competing in the development of a COVID-19 rapid diagnostic test.

The plaintiff alleged breach of restrictive covenants, misappropriation of confidential information, and breach of fiduciary and employment duties.

The court applied the strong prima facie case standard because the injunction would effectively be a final determination and restrain competition.

The court found the plaintiff failed to establish a strong prima facie case, noting credibility issues with the plaintiff's evidence regarding employment agreements and a lack of evidence of misappropriation.

The court also found no irreparable harm and that the balance of convenience strongly favoured the defendants, particularly given the public interest in developing COVID-19 testing.

A case management conference was held to address an issue regarding whether the appeal from the Landlord and Tenant Board had been settled.

The court directed the parties to exchange materials on the settlement issue and place them before the panel scheduled to hear the appeal.