Stephen C. Nadler

The Ontario Court of Appeal dismissed David Jarvis’s appeal regarding his entitlement to exercise stock options after resigning as a director of 1CM Inc. The court found that the corporate documents clearly required Jarvis to be a director at the time of exercising the options.

Jarvis failed to demonstrate any error in the application judge’s interpretation of the plan.

The respondent was awarded costs of $15,000.

The moving party sought leave to appeal a review decision of the Chair of the Ontario Land Tribunal, which had set aside a previous tribunal decision and ordered a rehearing regarding a zoning by-law amendment that restricted cannabis and hemp cultivation.

The moving party argued the Chair breached procedural fairness by failing to provide notice or an opportunity to respond, and by raising a new ground of review.

The Divisional Court found that the review decision was a final order, not interlocutory, but dismissed the motion for leave to appeal.

The Court held that the Chair followed the established rules, the moving party had actual notice but chose not to respond, and the issues raised were not of sufficient general or public importance to merit an appeal.

The plaintiffs brought a motion to maintain a certificate of pending litigation (CPL) on a property owned by the defendants.

The plaintiffs had paid deposits for pre-construction townhomes, but the defendants made no progress on the development and attempted to sell the property to a third party.

The defendants argued the CPL should be discharged based on a 'no registration clause' in the agreements of purchase and sale.

The court found a triable issue regarding an interest in land and held that the equitable factors favoured maintaining the CPL to protect the plaintiffs' investments, despite the contractual prohibition.

The moving parties (debtors) sought leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act from an order approving a court-appointed receiver's proposed sale process and list prices for five commercial properties.

The debtors argued the motion judge failed to apply the correct legal test (the Soundair test) and was unduly deferential to the receiver's business judgment.

The Court of Appeal dismissed the motion for leave, finding that the motion judge had implicitly applied the Soundair test, the proposed appeal lacked prima facie merit, did not raise an issue of general importance, and would unduly hinder the progress of the receivership proceedings.

The defendant purchaser brought a motion to stay the plaintiff vendor's civil action in favour of arbitration, relying on the arbitration clause in the Tarion Addendum to their agreement of purchase and sale for a new home.

The plaintiff conceded the existence and scope of the arbitration agreement but argued the court should refuse the stay due to undue delay, waiver, and because the matter was proper for summary judgment.

The court found no waiver or undue delay, noting the action had not progressed significantly past pleadings.

The court also held the case was not proper for summary judgment as it involved disputed facts and issues of anticipatory breach.

The motion to stay the action was granted.

The moving party brought a motion to discharge a certificate of pending litigation (CPL) that was granted to the responding party ex parte.

The court found that the responding party failed to make full and fair disclosure of material facts on the ex parte motion, including provisions in the agreement of purchase and sale prohibiting the registration of a CPL and disavowing any legal or equitable interest in the property.

The court also found that the property was not unique to the responding party, as it was purchased as an investment.

The motion was granted, the CPL was discharged, and costs were awarded to the moving party.

The applicant sought relief from forfeiture arising from an agreement of purchase and sale after breaching a term requiring the vendor's prior written consent to list or sell the townhouse.

The applicant had listed and sold the property without consent, leading the respondent vendor to terminate the agreement and forfeit deposits and occupancy fees.

The court dismissed the application, finding the applicant's conduct, the gravity of the breach, and the disparity between the forfeited property value and damages did not warrant relief from forfeiture.

Furthermore, the retention of the deposit and occupancy fees was not found to be unconscionable, considering the commercial context and the applicant's sophistication.

This endorsement clarifies the administrative nature of scheduling urgent matters before the Ontario Superior Court of Justice during the COVID-19 pandemic.

The court emphasized that the Chief Justice's Notice to the Profession provides guidelines for urgent services, not statutory rules, and that the scheduling process is an administrative function.

Submissions on the merits or the issue of urgency are not required or helpful once a matter has been scheduled, as they clog court resources and are not part of the legal dispute between parties.

The court scheduled the applicant's proposed matter for an urgent case conference, dismissing the respondent's subsequent submissions against urgency.

The appellant appealed a summary judgment enforcing a California default judgment against him.

He argued that the California court's jurisdiction was obtained by fraud, specifically alleging that the complaint falsely claimed he signed certain contracts.

The Court of Appeal dismissed the appeal, finding a real and substantial connection between the causes of action and California, and concluding that the appellant failed to present evidence of fraud going to jurisdiction.

The court held that the appellant was improperly attempting to re-litigate facts already determined by the default judgment.

The appellant appealed the dismissal of her application for an oppression remedy under s. 248 of the Business Corporations Act.

The dispute centered on a numbered company incorporated by the appellant's late husband to hold a Florida condominium, with shares held by the appellant and the husband's children.

The motion judge found that the husband had loaned money to the corporation and had not forgiven the loan prior to or upon his death.

The Divisional Court upheld the motion judge's findings that the loan remained an obligation of the corporation and that the failure of the estate to forgive the loan did not constitute oppressive conduct by the corporation or its directors.

The appeal was dismissed.

The appellant appealed two orders of a Master dismissing its action and ordering payment out of court.

The action, which was over seven years old, had been transferred to Case Management after years of dormancy.

The Master found the appellant had repeatedly breached orders regarding security for costs, delivery of a release, and provision of damages calculations and documentation.

The Divisional Court held that the Master did not err in principle or in the exercise of his discretion under Rules 60.12 and 77.10(7) to dismiss the action.

The appeal was dismissed with costs to the respondent on a partial indemnity scale.

The applicant sought judicial review of a decision by the Workplace Safety and Insurance Appeals Tribunal, which denied its request to be reclassified to the manufacturing rate applicable to a company that owned 50% of its shares.

The Divisional Court held that the tribunal, as a specialized body protected by a privative clause, was entitled to curial deference.

The court found that the tribunal's conclusion that the companies were not 'associated' under the Act was not patently unreasonable and dismissed the application.

The appellants challenged a judgment holding the mortgagor and certain original guarantors liable for a mortgage deficiency after sale under power of sale.

The central dispute concerned whether an extension agreement entered into with a subsequent purchaser discharged the guarantors, including under s. 9(4) of the Land Registration Reform Act and principles of novation.

The majority dismissed the appeal, holding the extension agreement did not extinguish the guarantors' liability, but allowed the lender's cross-appeal by restoring the $75,000 reduction and awarding solicitor and client costs.

A partial dissent would have allowed the guarantors' appeal on the basis that the extension discharged them.