Sara Erskine

The appellants, pre-construction purchasers of townhouses and condominiums, appealed the dismissal of their motion for a certificate of pending litigation (CPL).

The original developer transferred the lands to a lender, Grand Grace, after defaulting on loans.

Grand Grace took title free of the unregistered agreements of purchase and sale and resold the properties.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the Associate Justice's conclusion that the properties were not unique, damages were an adequate remedy, and the non-registration clauses in the agreements weighed against granting a CPL.

The plaintiffs, purchasers of pre-construction condominium and freehold units, brought motions for certificates of pending litigation (CPLs) against the development property after the original developer became insolvent and transferred the property to a new developer.

The purchase agreements contained non-registration clauses prohibiting the registration of CPLs.

The court found that while there was a triable issue regarding an interest in land based on constructive trust, the non-registration clauses and the equitable factors from Dhunna—including the lack of uniqueness of the property, the adequacy of damages, and the prejudice to new innocent purchasers—weighed heavily against granting the CPLs.

The motions were dismissed.

Following a summary judgment in favour of the plaintiff developer regarding a defaulted agreement of purchase and sale, the plaintiff sought costs.

The court noted the defendants pursued a defence and counterclaim identical to one recently dismissed by the Court of Appeal in a related case.

Despite this, the plaintiff only sought partial indemnity costs.

The court awarded the plaintiff costs fixed at $49,500 inclusive of fees, disbursements, and HST.

The plaintiff purchased an auto parts business from two of the defendants and sought an interlocutory injunction to enforce non-competition and non-solicitation clauses.

The plaintiff alleged the defendants established a competing business just outside the restricted radius and used a related company and former employees to solicit customers.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case that the restrictive covenants were breached, failed to prove irreparable harm, and that the balance of convenience favoured the defendants.

The plaintiff vendor brought a summary judgment motion against the defendant purchasers for failing to close on a luxury home.

The defendants argued they did not understand the agreement due to a language barrier and were misled about environmental issues on the property.

The court rejected these defenses, finding the defendants were experienced buyers who had a bilingual real estate agent and declined legal advice.

The court granted judgment for the plaintiff for the loss on resale and proven carrying costs, totaling $584,306.

The applicant landlord and respondent tenant could not agree on the prevailing market rent for a three-year lease renewal of a property used as a Montessori school.

The landlord brought an application under Rule 14.05(3)(d) for a determination of the minimum rent.

The parties submitted competing expert appraisal reports, with the landlord's expert suggesting $23.00 per square foot and the tenant's expert suggesting $12.00 to $14.00 per square foot.

The court considered the property's specific use, zoning, amenities, and the impact of the COVID-19 pandemic, ultimately determining the appropriate market rent to be $18.00 per square foot.

The defendant purchaser brought a motion to stay the plaintiff builder's action for breach of an agreement of purchase and sale in favour of arbitration.

The dispute arose from an aborted real estate transaction for a pre-construction home, where the defendant alleged the plaintiff breached early termination conditions under the Tarion Addendum.

Relying on a companion case, the court found that the dispute arguably fell within the arbitration clause and applied the competence-competence principle.

The motion was granted, and the action was stayed to permit the arbitration to proceed.

The plaintiff vendor commenced an action for specific performance or damages after the defendant purchaser failed to close on a pre-construction home.

The purchaser sought to stay the action in favour of arbitration, alleging the vendor breached the agreement by failing to complete the early termination conditions in the Tarion Addendum.

The vendor brought a motion for summary judgment.

The court held that the dispute over the early termination conditions and the applicability of the arbitration clause involved contested facts that should be resolved by an arbitrator under the competence-competence principle.

The action was stayed in favour of arbitration.

Following a contested status hearing regarding dismissal for delay under rule 48.14 of the Rules of Civil Procedure, the court addressed costs.

One defendant had settled the motion with the plaintiffs without costs, while the remaining defendant continued to pursue the dismissal motion.

The court rejected the argument that the continuing defendant should not bear responsibility for the plaintiffs’ motion costs because the motion had originally been initiated by both defendants and he continued to rely on the joint materials after settlement.

Considering the defendants’ conduct and the delays caused by their insistence on pursuing dismissal rather than agreeing to a timetable, the court found it just to award costs to the plaintiffs.

The plaintiffs’ claimed costs were reduced due to insufficient supporting detail.

At a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the defendant sought dismissal of an investment-related civil action for delay.

The plaintiffs alleged negligent investment advice, breach of fiduciary duty, breach of contract, and negligent misrepresentation relating to the commutation of pensions into risky investments.

Applying the two-part conjunctive test from appellate jurisprudence, the court considered whether the plaintiffs provided an acceptable explanation for the delay and whether the defendant would suffer non-compensable prejudice if the action continued.

The court found the delays were reasonably explained by ongoing regulatory complaints, counsel changes, procedural steps, and motions in the litigation.

The plaintiffs also successfully rebutted any presumption of prejudice because relevant documents were largely in the defendant’s possession and witnesses remained available.

The defendants brought a motion to compel a plaintiff to answer questions refused during cross‑examination on an affidavit of documents in a negligence and misrepresentation action arising from investment advice relating to the commutation of pensions.

The refusals were based primarily on solicitor‑client privilege.

The court considered whether the plaintiff had impliedly waived privilege by placing his state of mind and instructions to former counsel in issue through his testimony and the pleadings, particularly in light of the defendants’ limitation period defence.

Balancing the principles of fairness in litigation with the protection of solicitor‑client privilege, the court held that privilege was deemed waived for certain communications relating to instructions to former counsel and advice about commuting the pension.

The plaintiff was ordered to answer three of the refusal questions and reattend for cross‑examination, while one refusal relating to quantification of damages was upheld.