Star Deak

The court addresses costs and pre-judgment interest following the successful actions of Gary and Jennifer McKenzie against Fabco Holdings Inc., Jaymor Specialty Housing General Partner Inc., Your Community Realty Inc., and Gerald Anthony (also known as Gerald Van Erp).

The McKenzies were awarded substantial indemnity costs and pre-judgment interest in both the "Fabco claim" and the "Title claim," with the court apportioning costs between the defendants based on their conduct and the complexity of the litigation.

The decision discusses the principles guiding costs awards, including proportionality, indemnity, and the impact of vexatious conduct.

The decision concerns an appeal by the Defendants from an order granting the Plaintiffs certificates of pending litigation (CPLs) over two properties.

The court reviews the factual background, the standard of review, and the legal test for CPLs, ultimately finding no error in the Associate Justice’s decision to grant the CPLs.

The appeal is dismissed.

The plaintiffs, Gary and Jennifer McKenzie, brought two claims: one for breach of contract against Fabco Holdings Inc. and Jaymor Specialty Housing General Partner Inc. (Fabco/Jaymor) arising from an aborted real estate purchase agreement, and another for slander of title/injurious falsehood against Gerald Anthony, a neighbour, regarding a disputed property boundary.

The court found that Fabco/Jaymor breached the purchase agreement, not due to a legitimate title issue, but because the property was unsuitable for their development plans.

Fabco had assigned its obligations to Jaymor, and the court held Jaymor solely responsible for the breach, releasing Fabco from liability per the contract's assignment clause.

The court awarded the plaintiffs substantial damages against Jaymor for loss of bargain and associated costs.

Regarding the title claim, the court found Anthony liable for slander of title/injurious falsehood for registering a caution and application on title without bona fide grounds, which delayed the subsequent sale of the property.

However, Anthony was not held liable for damages related to the initial aborted sale, as that was attributed to Fabco/Jaymor's independent reasons.

The court awarded damages against Anthony for losses incurred due to the delay in the second property sale.

The defendants' counterclaim was dismissed, and the plaintiffs were found to have reasonably mitigated their damages.

Insite Construction Management Inc. (applicant) brought a motion to compel Ambient Mechanical Ltd. (respondent) to serve a further and better affidavit of documents, arguing that Ambient had refused to produce documents relevant to project costing in a lien action.

Ambient contended that all relevant documents had been disclosed, the requested documents were irrelevant based on the pleadings, and the request was overly broad.

The court dismissed Insite's motion, finding that the project costs were not relevant given the current pleadings, which primarily focused on whether Insite performed any work at all.

The dismissal was without prejudice, allowing Insite to revisit the production request if relevance is established through examinations for discovery.

Ambient was awarded partial indemnity costs.

The applicant husband brought a motion for an interim preservation order under Rule 45.01 of the Rules of Civil Procedure and section 12 of the Family Law Act to preserve the assets of several respondent corporations pending trial.

The applicant claimed legal and beneficial ownership of the corporations, which held a substantial real estate portfolio and private mortgage fund, while the respondent wife claimed her mother owned them.

The court found the applicant established a strong prima facie case of ownership and that the balance of convenience favoured preserving the unique corporate assets.

The court granted the preservation order for the corporate assets but declined to order preservation for specific residential properties under the Family Law Act.

This appeal concerned the suitability of specific performance as a remedy in a failed real estate transaction.

The appellants (defendants) challenged the trial judge's order for specific performance, arguing that the property was not unique and that the corporate purchaser's intent was for investment, not personal use.

The Court of Appeal found that the trial judge erred by relying on inadmissible hearsay evidence regarding the corporate principal's (Mr. Lin's) intentions, as he did not testify and was not proven unavailable.

The court concluded that the corporate structure and expert evidence supported an investment purpose, making damages an adequate remedy.

The appeal was allowed, the specific performance order was set aside, and the issue of damages was remitted for a new trial.

The respondent's cross-appeal on costs was dismissed.

Following the dismissal of the defendants' motions for summary judgment, the court determined the costs payable to the successful plaintiff.

The plaintiff sought substantial indemnity costs based on an unaccepted offer to settle the motions.

The court declined to award substantial indemnity costs, noting that Rule 49.10 does not provide a responding party much incentive to make an offer to settle in advance of a motion.

The court fixed the plaintiff's costs on a partial indemnity basis at $38,328, inclusive of fees, disbursements, and HST, to be paid equally by the three moving party groups.

The defendants jointly brought a motion for summary judgment to dismiss the plaintiff's slip and fall personal injury claim.

The plaintiff slipped on ice while attempting to enter a bridal store.

The court dismissed the motion, finding that the factual record was highly disputed and the electronic materials filed by the parties were voluminous, unorganized, and lacked necessary hyperlinks.

The court emphasized that summary judgment is inappropriate when the record does not allow the judge to confidently make findings of fact, and strongly criticized the profession's failure to properly prepare electronic motion records.