Scott R. Fairley

The plaintiffs brought a motion for summary judgment arising from the defendants' failure to close on the purchase of a residential property for $1,900,000.

The defendants admitted the breach but argued the matter was not suitable for summary judgment and that the plaintiffs failed to mitigate their damages.

The court found no genuine issue requiring a trial, holding that the plaintiffs acted reasonably in reselling the property and in settling a downstream claim from the vendors of a second property the plaintiffs could not close on due to the defendants' breach.

Summary judgment was granted for $556,535.41, comprising the difference in sale price, carrying costs, the forfeited deposit on the second property, and the settlement amount paid to the second vendor.

A stay of enforcement pending the third-party action was denied.

The plaintiff brought a motion for summary judgment for damages arising from an aborted real estate transaction.

The defendants admitted to breaching the agreement of purchase and sale but argued the plaintiff failed to mitigate his damages when he resold the property for a lower price in a falling market.

The court heard expert appraisal evidence from both parties.

The court found the defendants failed to prove the plaintiff acted unreasonably in mitigating his damages, noting the property was sold on the open market after reasonable exposure.

Summary judgment was granted in favour of the plaintiff for $111,702.58, representing the difference in sale prices plus carrying costs, less the deposit.

Following a bifurcated trial regarding the departure of financial advisors and the valuation of a business, the successful plaintiffs sought costs.

The court found that while formal Rule 49 offers were not triggered, the defendants' reprehensible and deceitful conduct prior to litigation, as well as their refusal to admit facts during the trial, warranted an enhanced costs award.

Costs were fixed at $160,000, payable jointly and severally by two of the defendants.

A third defendant, against whom liability was found but no damages were sought, was not held liable for costs.

Your Neighbourhood Credit Union (YNCU), a non-party and first mortgagee, moved to set aside a prior judgment (Hainey J.) that granted an easement over its mortgaged lands, alleging lack of notice.

The motion was held in abeyance pending an appeal of a similar judgment (Conway J.), which was subsequently overturned by the Court of Appeal, finding no legal entitlement to an easement.

The court found YNCU's motion, continued by its assignee Silsym Inc., met the "forthwith" requirement of Rule 38.11 despite delays.

Given the Court of Appeal's ruling on similar facts, the court concluded there was no entitlement to the easements granted by the Hainey Judgment and allowed the motion, setting aside the judgment.

Costs were fixed at $20,000 for the moving party.

The respondents operated a fitness club business through a corporate entity and agreed to sell the business to the appellants through an Asset Purchase Agreement dated October 30, 2015.

The agreement required the purchaser to assume approximately $58,000 in equipment and leasehold improvement loans.

After taking possession and operating the business, the appellants refused to sign the required promissory note, stopped payment on a cheque, and immediately defaulted on lease obligations, triggering the respondents' personal liability.

The motion judge found the corporate purchaser liable for breach of contract and pierced the corporate veil to hold the individual appellants personally liable for fraudulent conduct.

The appellants appealed on three grounds, all of which were dismissed.

The appellants appealed a motion judge's decision regarding their right of access to waterfront property through membership in Cedar Ridge Waterfront Park Corporation (CRRC).

The motion judge found a common intention that lot purchasers would have water access through CRRC membership.

The Court of Appeal allowed the appeal, holding that the right of access was contractual in nature, not an easement or easement by estoppel.

The court found that the documentation and circumstances were inconsistent with the creation of an easement, including the requirement to assign membership to subsequent purchasers and the absence of typical easement indicia such as metes and bounds descriptions.

This addendum on costs addresses the quantum of costs following a trial judgment.

The Plaintiffs by counterclaim sought $59,582.17, while the Defendant by counterclaim proposed $20,630.00.

The court applied Rule 57 of the Rules of Civil Procedure and principles from appellate cases, emphasizing that costs awards must be fair and reasonable, reflecting what the unsuccessful party should pay rather than the successful litigant's actual costs.

Considering factors such as time spent, counsel experience, rates, result achieved, complexity, conduct, and proportionality, the court awarded the Plaintiffs by counterclaim $45,000.00, inclusive of fees, disbursements, and HST.

The plaintiff contractor was previously found liable by summary judgment for breach of contract and negligence regarding deficient basement waterproofing and property damage, including severing a main hydro line.

In this trial of an issue to assess damages on the defendants' counterclaim, the court rejected the plaintiff's argument for a diminution in value approach, applying the cost of repair.

The court assessed damages for the return of the initial payment, electrical repairs, living expenses, landscaping, and exterior cladding replacement, awarding the defendants $167,201.62.

The plaintiffs brought a motion for summary judgment seeking a declaration that a binding agreement of purchase and sale was reached in September 2012 to divide four jointly-owned healthcare businesses.

The defendants brought a cross-motion for ancillary relief, including the removal of directors and the appointment of a receiver.

The court dismissed both motions, finding that the parties had not agreed on all essential terms of the separation and that the draft agreement was subject to independent legal review which never occurred.

The court held that the ancillary relief sought by both parties was premature and should be resolved at trial.