Scott A. Rosen

The applicant, C.I.D., sought a declaration that its sublease was terminated by operation of law when the head landlord, Correl, changed the locks on the premises due to the head tenant, Garnier's, non-payment of rent.

C.I.D. also sought damages.

Garnier argued an oral rent deferral agreement existed with Correl, making the termination unlawful, and sought relief from forfeiture.

The court found that Correl lawfully terminated the head lease by changing the locks, which automatically terminated the sublease.

The court rejected Garnier's claim of an oral agreement and denied relief from forfeiture due to unclean hands.

The sublease was declared terminated, and damages were referred to a Master.

The plaintiff brought a motion for an interlocutory injunction to access the defendants' adjacent property to complete brickwork on a new residential home before winter.

The parties were involved in a broader dispute over property lines and construction damage.

Applying the RJR-MacDonald test, the court found a serious issue to be tried, irreparable harm if the structure was left exposed to winter weather, and that the balance of convenience favoured the plaintiff.

The motion was granted, permitting temporary access subject to proof of insurance.

The defendant, Mansions of Forest Glen Inc., moved to set aside a noting in default and for leave to file a statement of defence.

The plaintiff, 942268 Ontario Limited, opposed the motion.

The court considered factors such as the length and reasons for delay, the parties' behaviour, claim complexity, and prejudice.

Finding that the defendant had a continuing intention to defend, received no direct notice of default, and acted expeditiously once notified, and that the plaintiff would suffer no uncompensable prejudice, the court granted the motion.

The noting in default was set aside, and the defendant was given 30 days to file a statement of defence.

The Royal Bank of Canada brought companion motions seeking directions in two bankruptcy proceedings.

The motions addressed whether the appellants had an appeal as of right from bankruptcy orders and, alternatively, whether the automatic stay resulting from an appeal as of right should be cancelled.

The court found that the appellants did have an appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act, as the property involved exceeded $10,000 and the bankruptcy orders directly involved the disposition of assets.

However, the court granted the motion to cancel the automatic stay under s. 195 of the Act, finding that the appeals had low chances of success and that there was no prejudice to the appellants, given their history of delay and improper dealings with property.

The plaintiff moved for an order requiring the defendants to attend cross-examinations on their affidavits of documents prior to examinations for discovery, alleging the affidavits were deficient.

The court dismissed the motion, finding no persuasive evidence that additional documents existed or had been withheld.

The court held that the proper course was to proceed with the scheduled examinations for discovery and ask questions about documents there, rather than engaging in premature cross-examinations based on speculation.

The plaintiff brought a motion for partial summary judgment, alleging the defendants breached two Agreements of Purchase and Sale for adjacent properties.

The defendants countered that the plaintiff repudiated the contracts by failing to comply with the Planning Act's subdivision control provisions, specifically regarding the retention of fee in abutting land.

The court found that the parties' clear intent was to treat the sale of the two merged parcels as a single transaction, and the plaintiff's statutory declaration did not contravene the Planning Act.

Therefore, the defendants' failure to close constituted a breach of contract.

Partial summary judgment was granted on the breach, with the issues of deposit forfeiture and damages reserved for trial.

The plaintiff landlord sought double damages under sections 48 and 50 of the Commercial Tenancies Act against the tenant corporation and its principals for allegedly fraudulently or clandestinely removing goods to prevent distress for rent arrears.

The court found that the bulk of the goods were removed before rent arrears accrued and that the removal was not clandestine or fraudulent.

The claims against the individual defendants and the claim for double damages against the corporate tenant were dismissed.

The corporate tenant was found liable for damages for breach of lease due to unpaid rent.

The applicant, Kingston Learning Centres Inc. (KLC), brought a motion for an interlocutory injunction seeking the delivery of student and business records from the respondents, 2511541 Ontario Inc. and the Sunny family, and to prevent Meghana Sunny from holding herself out as an officer or director of KLC.

The court found that KLC demonstrated a strong prima facie case for entitlement to the records under a management agreement but failed to provide clear and convincing evidence of irreparable harm for any of the requested relief.

The motion was dismissed, and costs were fixed against KLC, noting that the motion was largely unnecessary due to entrenched positions.

The defendants brought a motion for summary judgment, arguing that a document signed by the parties constituted a full and final release settling their real estate development dispute.

The plaintiff argued the document was merely a receipt for a partial payment and that no settlement was reached.

The court found that the document lacked the necessary reciprocity and clarity to be definitively interpreted as a release without a trial.

The motion for summary judgment was dismissed, as genuine issues for trial remained regarding the context and meaning of the document.

The plaintiff, Norman Wong, sought costs following a successful motion for leave to issue a certificate of pending litigation and to amend the statement of claim.

The court awarded costs to the plaintiff, but significantly reduced the amount sought and ordered separate payments from the Sereda defendants ($2,000) and the Smith defendants ($6,000), payable in the cause, rather than on a joint and several basis.

The court declined to award substantial indemnity costs from the date of an offer to settle, finding the offer did not fully address the relief granted.

The applicant tenant sought an order permitting the assignment of a commercial sublease, arguing the respondent landlord unreasonably withheld consent by demanding a security deposit.

The landlord required the deposit because the assignment would release the current subtenant, who acted as an indemnifier.

The court dismissed the application, finding the landlord's request for a three-month rent security deposit was objectively reasonable to protect its business interests and mitigate risks associated with the loss of the indemnifier.

Following the plaintiff's successful motion for summary judgment and successful resistance of the defendants' cross-motion, the plaintiff sought costs of $37,011.28 based on an offer to settle.

The defendants argued the amount was excessive and disproportionate to the $178,000 at issue.

The court found the requested amount too high and fixed costs at $25,000 inclusive of disbursements and taxes, citing the overriding principle of proportionality.

The plaintiff mortgagor defaulted on a matured mortgage.

The defendant mortgagees issued a Notice of Sale claiming the principal, regular interest, and an additional three months' interest pursuant to section 17 of the Mortgages Act.

The plaintiff paid the amount under protest to discharge the mortgage and brought an action to recover the three months' interest.

On cross-motions for summary judgment, the court held that once a mortgagee issues a Notice of Sale to realize on its security after maturity, it cannot unilaterally impose a three-month interest penalty under section 17.

The plaintiff was granted summary judgment for the recovery of the disputed interest.

Applejack Developments Inc. sought summary judgment against 2294894 Ontario Inc. for $500,000 based on a promissory note and amending agreements.

The defendant 2294894 Ontario Inc. argued lack of consideration, as funds were paid to a joint venture partner (2305992 Ontario Inc.), and that the claim was statute-barred under the Limitations Act.

The court found that the defendant failed to rebut the presumption of consideration, noting that payment to a joint venture partner constituted consideration.

The court also dismissed the limitation period argument, finding that the due date for the promissory note was automatically extended, making the action timely.

Summary judgment was granted to the plaintiff.

This is a costs decision following a trial in a construction lien matter where the plaintiff, Marlene McCloy, was largely successful.

The court awarded partial indemnity costs to McCloy for the period up to June 29, 2016, and substantial indemnity costs thereafter, pursuant to Rule 49.10(1) of the Rules of Civil Procedure, as McCloy's offers to settle were more favourable than the trial outcome.

The court declined to award costs personally against the defendant's counsel, Michael E. Freeman, despite frustrating conduct, accepting his explanations of weather delays and a Parkinson's flare-up.

Total costs awarded to McCloy against Bennett were $77,995.03, plus prejudgment interest.

Greenfix Golf Inc. sued Sportcover International Inc. for breach of a distribution agreement, alleging unpaid minimum royalties.

Sportcover defended by arguing the minimums were not payment obligations but protection against early termination, and counterclaimed for negligent misrepresentation.

The court found that the distribution agreement clearly stipulated annual minimum royalty payments and rejected Sportcover's interpretation.

The court also dismissed Sportcover's defenses of estoppel and waiver, and its counterclaim for negligent misrepresentation, finding no detrimental reliance or valid misrepresentation.

Damages were awarded to Greenfix based on the unpaid minimum royalties, and the court found no duty to mitigate under the "lost volume" principle given the non-exclusive nature of the agreement.

The applicant landlord sought a declaration that rental arrears were not released or forgiven by a lease extension agreement entered into with the respondent tenants.

The tenants argued that the arrears were wiped out and that they were entitled to a separate allowance under the agreement.

Applying the objective theory of contract formation and considering the factual matrix, the court found that the arrears were folded into the increased monthly rent and that the tenants were not entitled to a separate allowance without corresponding consideration.

The court granted the landlord's application for declaratory relief.

The plaintiffs were entirely successful at trial in an action regarding the ownership of a valuable piece of real estate.

They sought costs on a partial indemnity basis in the amount of $46,895.40, plus an additional $1,500 for attendances to settle the judgment.

The defendant argued that no costs should be awarded because the litigation was caused by the plaintiffs' failure to document their intentions clearly, or alternatively, that the costs sought were excessive.

The court rejected the defendant's argument for no costs and awarded the plaintiffs $37,500, finding this amount fair and reasonable given the scope of the engagement, the length of the trial, and the complexity of the issues.

The applicants sought declarations under s. 248 of the Ontario Business Corporations Act that the moving party beneficially owned 50% of the shares of a corporation formed in connection with a logistics business restructuring and that a shareholder loan of approximately $2.8 million was owed.

The respondents denied that any binding agreement or partnership existed and asserted that payments made were loans.

The court found overwhelming objective evidence that the parties had agreed to a 50/50 partnership and share ownership arrangement, including communications, conduct toward third parties, and treatment of a $3.5 million invoice representing the value of services contributed to the restructuring.

The court concluded that the respondent’s subsequent exclusion of the applicant from corporate management was oppressive.

As a remedy, the court ordered a buyout of the applicant’s 50% interest at fair value to be determined through an independent valuation process and confirmed the existence of the shareholder loan.

A dispute arose over entitlement to a $75,000 deposit following the failed closing of a residential real estate transaction governed by an Agreement of Purchase and Sale.

The contractual closing date passed without either party being ready to close, leaving the agreement alive and permitting either party to re‑establish time of the essence by fixing a reasonable new closing date.

The purchasers subsequently declared they would not proceed and sought a mutual release, asserting the vendor was in breach.

The court held the purchasers repudiated the agreement without first setting a new closing date or reinstating time of the essence.

The vendor later properly re‑established a closing date and tendered; the purchasers refused the tender.

Relief from forfeiture was denied and the deposit was ordered released to the vendor.