Scott McGrath

The applicants sought a vesting order for adverse possession or, alternatively, a prescriptive easement over a strip of land used as a driveway.

The court found that both parties overreached in their claims and settlement positions, with neither side achieving what they sought.

The court declined to award costs to either party, emphasizing that the litigation was an artificial proxy for a broader neighbour dispute regarding renovations.

No order as to costs was made.

The applicants sought a prescriptive easement over a strip of the respondent's land that had been used as part of their driveway for nearly fifty years.

The court found that the applicants' predecessors in title had openly and continuously used the strip of land for parking and access from 1983 to 2003, prior to the lands being registered under the Land Titles Act.

The court concluded that the easement was reasonably necessary for the better enjoyment of the applicants' land and granted the application.

Following cross-motions for summary judgment where the plaintiff was successful in recovering the residual proceeds of a power of sale, the court determined costs and prejudgment interest.

The court awarded the plaintiff costs of $45,515.37, noting the plaintiff beat its Rule 49 offer and the defendants unreasonably rejected a settlement proposal.

The court also awarded prejudgment interest at 2% from the date of the power of sale.

The applicant brought an application to interpret two promissory notes representing a $900,000 loan from the respondent for a real estate development project.

The parties disputed whether interest should be compounded, whether an interest escalation clause was triggered, and whether the second promissory note contained a mistake requiring rectification.

The court held that there was no agreement for compound interest and that the interest escalation clause was not triggered because the project was not fully constructed.

The court also rectified the second promissory note to remove the interest escalation clause while maintaining the 20% base interest rate.

The applicant was ordered to pay the remaining $99,778 owed under the notes, and was awarded $25,000 in partial indemnity costs due to divided but primarily successful outcomes.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claim for an equitable mortgage.

The plaintiff brought a cross-motion to determine the proper amount of the remaining proceeds from a power of sale.

The court granted the defendants' motion, finding no genuine issue requiring a trial as the parties always intended the plaintiff to have a second-ranking charge behind construction financing.

On the cross-motion, the court disallowed the defendants' three-month interest charge under section 8 of the Interest Act, reduced the claimed legal fees, and ordered the defendants to pay the plaintiff the balance of the residual proceeds of $99,400.83.

This motion, brought by SPay Inc., sought to stay a claim by Mundo Media Ltd.'s court-appointed Receiver, arguing the dispute should proceed via arbitration in New York as per their contracts.

The Receiver claimed SPay owed Mundo $4.1 million, while SPay intended to assert a set-off.

The court declined to follow the British Columbia Court of Appeal's reasoning in Petrowest Corporation v. Peace River Hydro Partners regarding a receiver's ability to disclaim arbitration clauses.

Instead, the court applied the "single proceeding model" in insolvency, finding that SPay was not a "stranger to the bankruptcy" due to the significant receivable and SPay's intention to assert a set-off.

The court held that justice and practicality demanded the claims be resolved within the Ontario receivership proceedings, rendering the arbitration agreement inoperative under Article 8(1) of the UNCITRAL Model Law.

The motion for a stay was dismissed, and costs were awarded to the Receiver.

The applicant sought a declaration that mutual easements among the parties, which granted rights for vehicular and pedestrian access and egress, did not include the right for users to park on each other's lands.

The court found that the easements unambiguously dealt only with access and egress, and that parking rights were contractual obligations established through separate agreements, such as a Site Plan Agreement and a tripartite agreement, rather than property rights conveyed by the easements.

The application was granted, and the counter-application was dismissed.

The proposed appellant brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal concerning a pleading amendment, but granted leave to appeal concerning privilege and the real estate solicitor's file.

As success was divided, no costs were awarded.

The plaintiff sued for specific performance of an agreement of purchase and sale, alleging the defendants acted in bad faith by relying on a solicitor approval condition to annul the deal.

The plaintiff brought a motion seeking a ruling that the defendants impliedly waived solicitor-client privilege by pleading they acted in good faith on their solicitor's advice.

The court dismissed the motion, finding that the defendants did not base their defence on their state of mind, but merely answered the bad faith claim, and that the solicitor approval clause gave them an absolute right to cancel without waiving privilege over the solicitor's reasons.

The defendants brought a motion for leave to amend their statement of defence to withdraw an admission that they had entered into a conditional agreement of purchase and sale for a farm.

The plaintiff opposed the withdrawal.

The court applied the three-part test for withdrawing an admission and found that the proposed amendment raised a triable issue, as one of the three joint tenants had not signed the agreement.

The court also found that the admission was inadvertent and that there was no prejudice to the plaintiff, who had known from the beginning that the document was missing a signature.

The motion was granted.

The applicants entered into an Agreement of Purchase and Sale to buy the respondents' home.

The agreement included an escape clause allowing the respondents to accept a better offer if the applicants did not waive their conditions within 24 hours of notice.

The respondents received a higher offer and notified the applicants, who promptly waived their financing and inspection conditions.

The respondents claimed the applicants also needed to explicitly waive the escape clause itself, and sold the property to the second buyer.

The court found the respondents breached the contract, as the escape clause was merely a mechanism that was fulfilled when the applicants waived their conditions.

The court directed a reference to determine the quantum of damages, noting the applicants' duty to mitigate.

The appellant, Vdopia Inc., appealed an order requiring it to pay US$373,731.23 to the court-appointed receiver of the respondents.

Vdopia Inc. argued that the motion judge erred by not considering its outstanding counterclaim for equitable set-off.

The Court of Appeal found no error, affirming that the motion judge's finding of indebtedness was well-supported by the record and that the appellant failed to adduce any evidence to support its set-off claim despite ample notice.

The appeal was dismissed, and costs were awarded to the receiver.

Thorneloe University sought leave to appeal a CCAA judge's decision that allowed Laurentian University to disclaim federation agreements and approved a debtor-in-possession (DIP) loan amendment.

Thorneloe argued the disclaimer would cause its insolvency, provided minimal financial benefit to Laurentian, and was motivated by anti-competition.

The Court of Appeal dismissed the leave motion, finding the proposed appeal was not prima facie meritorious, not of significance to the practice, and would unduly hinder the progress of the CCAA restructuring.

The court upheld the CCAA judge's balancing of interests under s. 32(4) of the CCAA, emphasizing the high deference owed to supervising judges in CCAA proceedings.

The Court of Appeal for Ontario refused leave to appeal a sealing order issued by a CCAA supervising judge in the Laurentian University insolvency proceedings.

The moving parties, including faculty unions, sought access to confidential documents (letters between Laurentian and the Ministry of Colleges and Universities) that were sealed to protect restructuring efforts.

The Court applied the Sierra Club test for sealing orders and the four-factor test for leave to appeal in CCAA cases, finding the proposed appeal was not prima facie meritorious, would unduly hinder the time-sensitive restructuring, and was not of sufficient significance to the action.

The court emphasized deference to the supervising judge's discretion in complex CCAA matters.

This decision addresses procedural issues in a complex civil action involving claims for delayed delivery of residential lots and a right of first refusal.

The court considered whether a previously agreed-upon bifurcated trial could proceed given new limitations defences proposed by the defendant, and whether the action should remain under a "One Judge Model" case management pilot program.

The court ruled that a single trial was necessary to avoid the risk of inconsistent judgments due to overlapping evidence and credibility issues related to the limitations defences.

Furthermore, the action was removed from the pilot program because the parties consistently engaged in formal, contested interlocutory proceedings, contrary to the program's emphasis on informal dispute resolution.

The moving parties (the Crosslinx Defendants) sought an order under Rule 49.09 to enforce a settlement reached with the plaintiff.

The parties disagreed on the scope and form of the release to be signed by the plaintiff.

The court held that without prejudice communications were admissible to determine the scope of the settlement.

The court further held that the parties bargained for a standard general release, which implicitly includes claims over and contribution/indemnity clauses, and ordered the plaintiff to execute the release with those terms included, subject to minor clarifying revisions.

Commercial landlord appealed an order limiting its entitlement to draw on a $2.5 million standby letter of credit posted by a bankrupt tenant as security for a lease.

The motion judge held that, following the trustee’s disclaimer of the lease, the landlord could draw only the statutory preferred claim for three months’ accelerated rent under the Bankruptcy and Insolvency Act.

The Court of Appeal held that the autonomy principle governing letters of credit meant the issuing bank’s obligation to honour complying presentations was independent of the underlying lease and not limited by insolvency law absent fraud.

The court also found the motion judge erred in interpreting the lease to require a reduction in the letter of credit because the tenant had not “promptly” paid rent at all times as required.

The landlord was therefore entitled to draw the full amount of the letter of credit.

This costs endorsement followed previous judgments in consolidated applications concerning a shareholder dispute.

The court had dismissed the Cornacchia Group’s application and allowed, in part, Michael Cotic’s application, making Cotic the overall successful party.

Cotic sought substantial indemnity costs, or alternatively, partial indemnity costs under Rule 49.

The Cornacchia Group argued for apportioned costs or no reimbursement for disbursements.

The court declined to award substantial indemnity, finding that allegations of fraud arose from Cotic's sloppy record-keeping rather than deliberate misconduct, and that Cotic's Rule 49 offer was not more favourable than the judgment obtained.

The court also found the Cornacchia Group's actions did not unnecessarily prolong proceedings.

Cotic was awarded partial indemnity costs, assessed at $380,000, payable forthwith, jointly and severally by the Cornacchia Group, with a right of set-off against the purchase price of their interests in the Corporation.

The respondents brought a motion to vary a consent order registered on title to land, seeking to limit its application to only lots relevant to the dispute.

The applicants opposed, citing the respondents' breaches of obligations under the consent order and minutes of settlement, and concerns about related companies.

The court dismissed the motion, finding that the respondents did not meet the high threshold to vary a consent order, as the "new facts" (PIN assignments) were foreseeable, and the respondents had demonstrated a disregard for their obligations, justifying the applicants' concerns about security.

This case involved consolidated applications concerning a closely held corporation, Fitness Fanatix Inc. The Cornacchia Group sought an oppression remedy under s. 248 of the Business Corporations Act, alleging Cotic mismanaged the business, failed to maintain proper records, and misappropriated cash.

Cotic, in turn, sought to enforce a buy-sell offer under s. 253(1) of the Act and the shareholders' agreement.

The court dismissed the Cornacchia Group's oppression application, finding their expectations were not violated and no misappropriation of cash by Cotic.

The court determined the correct shareholdings and Cotic's shareholder loan balance, rejecting claims that Wilkins and Correia were shareholders.

Cotic's application was allowed in part, granting him the first right to institute a new buy-sell offer based on the court's findings, as the original offer was not enforceable due to adjusted loan amounts and changed circumstances.