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 defendants brought summary judgment motions to dismiss an action alleging slander of title and slander of credit arising from a PPSA registration.

The court held that the discoverability issue was suitable for summary judgment and that, once a limitation defence was raised, the plaintiff bore the evidentiary burden of showing the claim was not statute-barred.

The record established that the plaintiff or his solicitor knew, or ought to have known, of the registration and its alleged consequences more than two years before the action was issued.

The plaintiff failed to rebut the statutory presumption of knowledge or identify a discoverability date within the limitation period.

The action was dismissed as statute-barred.

The buyers appealed a partial summary judgment declaring they breached two agreements of purchase and sale for abutting residential properties.

The buyers argued the agreements were void for contravening the subdivision control provisions of the Planning Act and that the seller tendered defective closing documents.

The Court of Appeal dismissed the appeal, finding the parties intended a simultaneous conveyance that complied with the Planning Act, and the seller's tender was valid.

Although the Court criticized the use of partial summary judgment in this context, it declined to set aside the judgment as doing so would only cause further delay and expense.

The plaintiff previously obtained a Mareva Order preserving up to $327,000 from the sale of the responding defendant's property.

On the return of the motion, the responding defendant's materials were not filed in time.

The plaintiff sought an adjournment to file reply materials and conduct cross-examinations.

On consent, the court extended the Mareva Order pending a full hearing, released $70,000 to the responding defendant for living expenses and legal fees, and set a timetable for the remaining steps in the action.

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.

Following a previous ruling referring their dispute over a failed new home purchase to arbitration, the parties were unable to agree on an arbitrator.

The moving parties brought a motion in writing to have the court appoint their preferred candidate, Mr. Richler, citing his lower fees and capped costs.

The responding party failed to respond to the motion.

The court exercised its power under section 10 of the Arbitration Act to appoint Mr. Richler, conditional on his continued willingness to accept the appointment.

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, an elderly woman acting through her litigation guardian, brought a motion for leave to amend her statement of claim and to issue a certificate of pending litigation (CPL) against the defendant's property.

The plaintiff alleged she made over $75,000 in loans to the defendant, her neighbour, which were not repaid.

After a demand letter was sent, the defendant transferred her property to her son for nominal consideration and registered a new mortgage.

The court granted the unopposed motion to amend the claim.

The court also granted the motion for a CPL, finding that the transfer bore several badges of fraud, establishing a prima facie case of a fraudulent conveyance, and that the balance of convenience favoured the plaintiff.

Following a successful motion by the applicant, the court determined the issue of costs.

The respondent had failed to make offers to settle, moved assets to family members, and deliberately provided inadequate disclosure.

The court found the respondent's conduct amounted to bad faith under Rule 24(8) of the Family Law Rules, which includes intent to conceal and inflict harm.

The respondent was ordered to pay the applicant's costs on a full indemnity basis in the amount of $39,000.

The purchasers of a new home terminated their agreement of purchase and sale after the builder failed to complete construction by the outside closing date.

The builder disputed the termination, claiming the purchasers had verbally agreed to an extension, and brought an application for specific performance.

The purchasers brought a motion to stay the application and refer the dispute to arbitration pursuant to the Tarion Addendum.

The court applied the competence-competence principle and found it was at least arguable that the dispute fell within the scope of the arbitration clause.

The builder's application was stayed and the matter referred to arbitration.

The applicant brought a motion for interim child and spousal support, extensive financial disclosure, preservation orders, and interim disbursements in a high-conflict family law proceeding.

The court found that the respondent had engaged in a complex corporate reorganization and failed to provide transparent disclosure regarding his assets and income.

The court imputed an annual income of $400,000 to the respondent based on the parties' lavish lifestyle and apparent diversion of funds.

The court ordered the respondent to pay interim support, provide extensive corporate disclosure, and pay $100,000 as an advance for interim disbursements.

Preservation orders and certificates of pending litigation were also granted due to the risk of asset dissipation.

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.