Scott Anthony Crocco

The appellant appealed a judgment dismissing its application for a determination that the respondent tenant must pay $431,000 for parking lot repaving under its lease.

The Court of Appeal dismissed the appeal, finding no reason to interfere with the application judge's conclusion that the work significantly extended the life of the parking lot and reduced operating costs, which were factual findings entitled to substantial deference.

The defendants brought a motion under Rule 56.01(1) of the Rules of Civil Procedure seeking security for costs against a corporate plaintiff in an action arising from a liquidation agreement and alleged shortfall in auction proceeds.

The defendants argued the plaintiff corporation lacked sufficient assets in Ontario to satisfy a potential costs award.

The court held that defendants who voluntarily initiated a summary judgment motion should not obtain security for the costs of that motion from the opposing party.

The court also found it unjust to rely on the plaintiff’s alleged lack of assets where that circumstance arguably arose from the defendants’ failure to remit sale proceeds owed to the plaintiff.

Applying proportionality principles under Rule 1.04(1.1), the court dismissed the motion without prejudice to seeking security after the pending summary judgment motion is decided.

The court-appointed Receiver brought a motion for directions on whether the Auctioneer was entitled to a Buyer's Premium on a private sale of the debtor's assets.

The motion judge denied the premium because the Offer to Purchase contained an entire agreement clause and did not mention the premium.

On appeal, the Court of Appeal reversed the decision, finding that the Auction Service Agreement between the Receiver and the Auctioneer mandated the premium, and denying it would result in commercial absurdity and a windfall to the Receiver.