Shane Greaves

Following a successful appeal from a Superior Court judgment, the Court of Appeal determined costs for the proceedings below.

After reviewing both parties' submissions, the court awarded costs of $25,000, inclusive of HST and disbursements, to the appellant, payable forthwith.

The garnishee appealed an order requiring it to pay $154,257.05 to the respondent creditor pursuant to r. 60.08(17) of the Rules of Civil Procedure.

The motion judge found that a registered mortgage between the garnishee and the judgment debtor constituted evidence of a legitimate debt and rejected the garnishee's sole director's testimony that the mortgage was a sham, on credibility grounds.

The Court of Appeal found no palpable and overriding error in the motion judge's credibility findings or factual conclusions and held that the equitable and discretionary nature of garnishment does not constitute an independent basis to find a debt where none exists.

The appeal was dismissed with costs.

The defendants in a failed renovation project dispute were noted in default after failing to respond to the claim.

They subsequently moved to set aside the noting in default.

The court applied the multi-factor test from Franchetti v. Huggins, considering the parties' behaviour, length of delay, reasons for delay, complexity of the claim, prejudice to both parties, and whether the defendants had an arguable defence.

The court found that Maurizio Privitera and MGP Construction Group engaged in a pattern of disregarding court orders and documents, failed to produce a substantive defence despite 19 months, and responded with threats rather than engagement.

The court distinguished the position of Jennifer Pannozzo, finding her circumstances more plausible.

The noting in default against Privitera and MGP Construction Group was upheld, while the noting against Pannozzo was set aside with a 20-day deadline to file a statement of defence.

The court considered cross-motions for summary judgment between Kishan Patel (and his company TechSpirer Inc.) and ITCAD Tech Inc. regarding unpaid invoices and the enforceability of a non-competition clause in a consulting agreement.

The court found that TechSpirer Inc. was an independent contractor, not an employee, and that the non-competition clause was valid and enforceable.

Damages were awarded to both parties, with the plaintiffs receiving unpaid invoices and punitive damages, and the defendant receiving partial damages for breach of the non-compete.

The court also addressed issues of frustration, repudiation, and costs.

The Court of Appeal for Ontario allowed the appeal of Danjing Han, setting aside a trial judgment that had awarded the respondents $302,000 for civil deceit and unjust enrichment.

The appellate court found that the trial judge erred in relying solely on admissions in the Statement of Defence to establish liability, without making any factual findings or determining the elements of the causes of action.

The court concluded that the admissions did not amount to admissions of liability and that the respondents had not met their burden of proof.

The court granted judgment in favour of Madison Homes Cornell Rouge Limited for losses arising from the defendants' failure to close a real estate transaction.

The court dismissed the counterclaim and third-party claim, finding no actionable misrepresentation, duress, or unconscionability in the sales process.

The court also found no fiduciary duty owed by the third party, Edward Wong, to the defendants.

Damages were awarded for the difference between the contract price and resale price, plus related expenses.

The plaintiff, Syed Bahauddin, was employed as a chef at the defendants’ restaurant for over 20 years before being dismissed without cause.

After settling a wrongful dismissal action, the defendants failed to pay the full judgment.

The plaintiff sought and was granted an order requiring the garnishee, 1436318 Ontario Ltd., to pay the outstanding amount.

The court found the mortgage between related parties to be valid and enforceable, rejected claims that it was a sham, and concluded that the equities favoured the plaintiff.

The court also awarded costs to the plaintiff.

The defendant brought a motion to set aside an ex parte order granting a certificate of pending litigation (CPL) on a property, alleging the plaintiffs failed to make full and fair disclosure of material facts.

The court found significant non-disclosure regarding business ownership, property funding, and the timing of a trust agreement, as well as issues with a plaintiff's affidavit.

The motion was granted, the CPL order was set aside, and the CPL was discharged, with costs awarded to the defendant.

The plaintiff, Fei Wang, brought an ex parte motion for a Mareva injunction against the defendant, Wei Wu, to freeze a CIBC revolving line of credit and for an order permitting the registration of a Certificate of Pending Litigation (CPL) against a property.

The parties, cousins, jointly contributed to the purchase of the property, with the plaintiff contributing a significant majority of the funds, despite title being solely in the defendant's name.

The plaintiff alleged an express or resulting trust.

Following the termination of the defendant's employment with the plaintiff's company and the defendant listing the property for sale with an intent to return to China, the plaintiff sought to protect his beneficial interest.

The court granted a temporary Mareva injunction for 10 days and ordered the plaintiff to provide notice for the CPL motion, scheduling both for a hearing on May 6, 2024.

The respondent, Ping Deng, brought a motion to quash an appeal filed by the appellants, Danjing Han and Canamex Fire Protection International Inc., arguing that the Ontario Court of Appeal lacked jurisdiction.

The original trial judgment awarded damages of $39,797.26 and dismissed a claim for punitive damages of $50,000.

Citing sections of the Courts of Justice Act, the Court of Appeal determined that appeals involving single payments not exceeding $50,000 or dismissed claims for amounts not more than $50,000 fall under the jurisdiction of the Divisional Court.

Consequently, the motion to quash was allowed, and the appeal was quashed.

The court declined to transfer the appeal but allowed the appellants to seek leave to extend the time to appeal to the Divisional Court.

The plaintiff brought an action for oppression against the personal and corporate defendants, alleging unauthorized withdrawal of corporate funds.

The court found the personal defendant liable for oppression, determining that funds were improperly withdrawn and rejecting defences related to a lease and the limitations period.

Damages were awarded to the plaintiff and another shareholder to ensure proportionate return of capital, but punitive damages were denied.

The appellant appealed a summary judgment that awarded the respondent damages for a failed agreement of purchase and sale.

The appellant argued that the respondent's sales representative made a misrepresentation regarding future property price increases, which induced him to enter the agreement.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that the alleged misrepresentation was a non-actionable prediction, not a statement of fact, and there was no evidence it was made dishonestly or negligently.

The appellant, Kay Hon, appealed a summary judgment granted in favour of the respondent developer, Forest Hill Homes (Cornell Rouge) Limited, for failure to close on a home purchase.

The appellant argued the motion judge erred in finding no misrepresentation by the developer's agent regarding agency, and that summary judgment should not have been granted while a third-party claim remained outstanding.

The Court of Appeal found no clear and palpable error in the factual finding regarding agency, noting the appellant's own evidence and the agreement confirmed the agent acted for the vendor.

The court also held that the main action and counterclaim were sufficiently distinct from the third-party claim to allow for summary judgment, and clarified that the motion judge's observations on the third-party claim were not binding findings.

The appeal was dismissed.

The plaintiff builder brought a motion for default judgment against the defendant purchaser who failed to close a real estate transaction.

The court required the plaintiff to serve the motion materials on the defendant in accordance with Toronto best practice.

The court found the plaintiff met its onus to prove damages and mitigation efforts, awarding the difference between the contract price and resale price.

However, the court refused to enforce a 20% contractual interest rate, applying the Courts of Justice Act rate instead, and limited the recovery of carrying costs due to an unexplained 5-month delay in closing the resale.

The plaintiff vendor brought a motion for summary judgment against the defendant purchasers who failed to close on an agreement of purchase and sale for a residential property.

The defendants admitted liability but disputed damages and mitigation.

The court found no genuine issue for trial, holding that the plaintiff reasonably mitigated its damages by reselling the property in a falling market.

Summary judgment was granted to the plaintiff for $353,582.28, representing the loss of bargain and carrying costs, though the court declined to enforce a 20% contractual interest rate, finding it excessively onerous.

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

The defendant purchaser argued she was entitled to revoke her offer before it was accepted and that the irrevocability clause in the standard form agreement was unconscionable.

The court held that the irrevocability clause was binding as it was supported by distinct consideration (the developer taking the property off the market).

Applying the Supreme Court's framework in Uber v. Heller, the court found that while there was unequal bargaining power, the irrevocability clause was not an improvident bargain.

Judgment was granted in favour of the plaintiff for $179,599.94.

Following a successful summary judgment motion for breach of contract regarding an aborted real estate transaction, the plaintiff sought costs.

The court reviewed the plaintiff's bill of costs and awarded partial indemnity costs in the amount of $6,128.59, inclusive of fees, disbursements, and taxes.

The plaintiff, a real estate developer, brought a motion for summary judgment against the self-represented defendant for breach of contract after the defendant failed to close a home purchase, claiming damages of $622,505.66.

The court found that despite the plaintiff's arguments, the evidentiary record, including the defendant's unsworn affidavit, possibly raised genuine issues for trial concerning contract formation, extension agreements, market value, damages calculation, and mitigation.

The court adjourned the motion to allow for cross-examinations of the plaintiff's affiants and recommended the defendant retain legal counsel, emphasizing the need for a just determination based on a complete evidentiary record.

The plaintiff, a real estate developer, brought a motion for summary judgment against the defendant purchaser who failed to close a real estate transaction.

After the defendant failed to file responding materials as ordered, the court struck the statement of defence and treated the matter as an in-writing motion for default judgment.

The court found the plaintiff proved its claim for breach of contract and awarded damages for the loss of the bargain and consequential carrying costs.

The plaintiff vendor brought a motion for summary judgment against the defendant purchasers for failing to close a real estate transaction.

The defendants raised defenses of frustration due to a market drop, delay, misrepresentation, and bribery, all of which were rejected by the court.

The court awarded damages for loss of bargain based on the difference between the contract price and the appraised value.

However, the court refused to enforce a 20% interest rate clause in the standard form agreement, finding it to be a surprisingly onerous term that was not drawn to the defendants' attention.