Shane Elan Kazushner

The appellants challenged the trial judge's interpretation of a contractual term, his factual finding regarding waiver of the time limit for performance, and his damages award.

The Court of Appeal applied the deferential standard of review established in Sattva Capital Corp. v. Creston Moly Corp. and found that the trial judge's interpretation of the poorly drafted contractual clause was reasonable and that there were no palpable and overriding errors in the factual findings.

The award of reliance damages was also found to be reasonable.

The appeal was dismissed with costs to the respondent.

The Plaintiffs, Yami Talk Catering Management Ltd. (Tenant) and Chenbein Zhong, brought a motion for summary judgment against 2309603 Ontario Inc. (Landlord), Pasofina Canada Corporation, and Zahid Naseer for breach of a commercial lease agreement.

The core dispute centered on the Landlord's failure to secure an exclusive right for the Tenant to operate a Chinese cuisine restaurant in the food court, as stipulated in the lease.

The court found that the Landlord breached this exclusive rights provision, entitling the Tenant to terminate the lease.

The court dismissed the Plaintiffs' claims against Pasofina Canada Corporation and Zahid Naseer, finding no basis to pierce the corporate veil, and also dismissed the Defendants' counterclaim.

The Tenant was awarded damages of $69,897.78 plus pre-judgment interest against the Landlord.

Following a prior motion and cross‑motion concerning discovery sequencing, leave to conduct discoveries, and a site inspection under the Construction Lien Act and the Rules of Civil Procedure, the court addressed the issue of costs.

The plaintiff argued it was entirely successful and sought substantial indemnity costs based on alleged obstructive conduct by the defendant.

The defendant asserted its cross‑motion was successful and that the plaintiff’s conduct necessitated the motion.

The court accepted the plaintiff’s position that the defendant’s submissions attempted to re‑litigate issues already determined.

Costs were awarded to the plaintiff on a partial indemnity basis.

The plaintiff in a construction lien action sought leave to conduct examinations for discovery and a site inspection after the action had been set down for trial in order to preserve its lien within the statutory time limit.

The defendant opposed the motion and brought a cross‑motion concerning the sequencing of discoveries and payment of copying costs for productions.

The court considered s. 67 of the Construction Lien Act and Rule 48.04 governing interlocutory steps after an action is set down for trial.

The court accepted that the trial record had been filed solely to maintain the lien and that the plaintiff had not abandoned its intention to conduct discovery.

Leave was granted for discoveries and a site inspection, with sequencing ordered and copying cost issues reserved.

The plaintiff sought leave under s. 67(2) of the Construction Lien Act and Rule 48.04 of the Rules of Civil Procedure to conduct examinations for discovery in a construction lien action.

The court granted leave and directed that the defendant conduct its discovery of the plaintiff first.

The court also ordered a site inspection of the defendant’s premises and established a timetable for the delivery of affidavits of documents, Scott Schedules, and completion of examinations for discovery.

Costs of the motions were reserved for written submissions.