Ted Evangelidis

In this contract interpretation dispute, the plaintiff developer (Losani) sought payment from the defendant developer (Tobyn Park Homes) for the defendant's share of infrastructure costs under a Construction and Cost Sharing Agreement.

The central issue was whether interim payments were due upon issuance of Progress Certificates by the consulting engineer, or whether payment could be deferred until the City of Hamilton formally accepted the works as complete.

The court found that the CSA clearly required interim payments within 20 days of each Progress Certificate, and that the External Works Agreement (annexed to the CSA) addressed only the standard for final completion, not the timing of interim payments.

All of Tobyn's payments were late, and interest at 15% per annum, compounded monthly, accrued on all amounts owing.

The appellants, six defendants in a construction dispute, appealed a motion judge's decision dismissing their request to permanently stay the action.

They argued that a partial settlement between the plaintiff (respondent) and three other defendants (including an insurer) was not immediately disclosed, constituting an abuse of process.

The settlement involved the plaintiff assigning claims to the insurer and contemplating a Pierringer Agreement.

The motion judge found the settlement did not significantly alter the litigation dynamics to require immediate disclosure and that disclosure, if required, was immediate.

The Court of Appeal upheld the motion judge's finding that the settlement did not significantly alter the litigation dynamics, emphasizing that the claims against the settling parties were fundamentally distinct from those against the appellants, and the use of the term "Pierringer Agreement" was not determinative without a substantive change in adversarial positions to cooperative ones.

The appeal was dismissed.

The defendants/plaintiffs by counterclaim (the "Soods") brought a motion for an interim injunction to prevent Celernus Investment Partners Inc. ("Celernus") from continuing power of sale proceedings on properties secured by a defaulted mortgage.

The Soods alleged breach of contract and breach of the duty of honest contractual performance by Celernus in their counterclaim.

The court applied the three-part RJR-MacDonald test for injunctions.

It found no serious question to be tried regarding Celernus's enforcement rights, determined that any potential loss to the Soods would be quantifiable in damages and thus not irreparable harm, and concluded that the balance of convenience favoured upholding the lender's contractual rights.

The motion for an interim injunction was dismissed, though a 60-day extension was granted to the Soods to arrange alternate financing.

This decision addresses the costs of a complex motion concerning the interpretation of an interim preservation order's "usual and ordinary course of business" term.

The applicant sought partial recovery costs of approximately $105,000, while the respondents proposed $25,000.

The court awarded the applicant $98,000, finding them overwhelmingly successful on the key issues.

The court emphasized proportionality, the complexity and high stakes of the litigation, and the respondents' conduct, including significant delays, late affidavit delivery, and a "scorched earth policy" which unnecessarily increased 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 motion concerned the interpretation of the term “usual and ordinary course of business” as it applied to corporate respondents in an interim preservation order.

The corporate respondents sought an expansive interpretation to allow significant financial transactions, including leveraging properties and transferring funds for a private mortgage lending business.

The applicant sought a narrow interpretation to preserve assets.

The court applied principles of judicial order interpretation, emphasizing context and purpose, and found the respondents' proposed interpretation would negate the preservation order's effect.

The court adopted a narrow definition, limiting “usual and ordinary course of business” to day-to-day operations and management, explicitly excluding large-scale asset encumbrance or intercorporate fund transfers for investment.

All other relief sought by the respondents was dismissed.

The moving party brought a motion for leave to appeal an order of Lavine J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

Following the dismissal of the plaintiffs' claims regarding a corporate estate freeze and a vendor take-back mortgage distribution, the defendants sought costs on a substantial indemnity basis.

The court awarded substantial indemnity costs to the defendants, finding that the individual plaintiff advanced frivolous claims and made unfounded allegations of fraud against various parties, including counsel.

The court rejected the plaintiff's requests to set off unpaid dividends, include the estate in the costs liability, or reduce the award significantly.

The individual plaintiff was ordered to personally pay $150,080.01 in costs.

The appellant insurer appealed a lower court decision that found it had a continuing duty to defend the respondent insured in an underlying action.

The insured had purchased property with title insurance and was subsequently sued by a previous owner claiming invalid sale and unjust enrichment.

Although the insured later lost title to the property, the application judge found the amended statement of claim included a claim for damages against the insured, triggering the insurer's duty to defend.

The Court of Appeal dismissed the insurer's appeal, affirming that the amended statement of claim could reasonably be read to include a claim for damages against the insured, thus upholding the duty to defend.

The appellant sought a declaration of sole ownership of a property based on adverse possession under the Real Property Limitations Act, arguing exclusive possession and payment of expenses for over ten years.

The trial judge found a 65% interest for the appellant and 35% for the respondents, ordering sale.

On appeal, the respondents raised a new issue: the property was registered under the Land Titles Act, which bars adverse possession claims unless the limitation period ran before registration.

The Court of Appeal dismissed the appeal, finding that the Land Titles Act issue was dispositive, as the property was registered in Land Titles at the time of purchase, preventing acquisition of title by adverse possession.

The court also upheld the trial judge's finding that the appellant had not established actual possession for the requisite period under the RPLA due to a verbal agreement, and affirmed the order for sale under the Partition Act.

The plaintiff, in her personal capacity and as an estate trustee, brought an action against her brothers and several family corporations, alleging oppression, fraud, and breach of fiduciary duty regarding a 2002 estate freeze and the distribution of mortgage proceeds.

The defendants brought a cross-motion for summary judgment.

The court found that the estate freeze was validly implemented and that the distribution of the mortgage proceeds was a reasonable business decision.

The court dismissed the majority of the plaintiff's claims, finding no evidence of oppression, but ordered the corporate defendants to hold annual shareholder meetings, appoint an auditor, and retain independent counsel.

This is a motion to quash an appeal on the basis that the order under appeal was interlocutory, not final, and therefore not properly before the Court of Appeal.

The motion judge had dismissed a motion to strike out claims for declaratory relief, holding that it was not plain and obvious the causes of action had no merit and were properly pleaded.

The Court of Appeal found that the motion judge's order did not finally determine any issues between the parties, leaving them for the trial judge, and was thus interlocutory.

The Court concluded that only the Divisional Court had jurisdiction over such an order and quashed the appeal, awarding substantial indemnity costs to the moving parties.

The moving parties brought a motion for leave to appeal an earlier order of the motion judge.

The Divisional Court reviewed the matter in writing.

The motion for leave to appeal was dismissed, with costs awarded to the responding party in the fixed amount of $5,000.

The applicant purchased property and obtained title insurance from the respondent.

The former owner sued the applicant to set aside the sale, and the respondent initially assumed the defence.

The applicant later lost title to the property through power of sale proceedings, prompting the respondent to deny a continuing duty to defend on the basis that the applicant no longer owned the property.

The applicant brought an application seeking a declaration that the respondent owed a continuing duty to defend.

The court found that the underlying action included a claim for damages based on unjust enrichment, which triggered the respondent's duty to defend even though the applicant no longer owned the property.

The appellants appealed an order directing the sale of a jointly owned property rather than its partition.

Following the commencement of the appeal, the appellants sold their interest in the property to the respondent for $3,900,000.

The Divisional Court dismissed the appeal as moot, declining to exercise its discretion to hear the case because the issues raised were not elusive of review and did not warrant the expenditure of judicial resources.

The defendants brought a motion under Rule 21.01(1)(a) to strike the plaintiffs' claims for declaratory relief regarding express, resulting, and constructive trusts, as well as fraudulent conveyances.

The plaintiffs, who are judgment creditors, alleged that the defendants transferred properties to their spouses to defeat creditors.

The court dismissed the motion to strike, finding that the plaintiffs had pleaded sufficient facts to support their claims and that it was not plain and obvious the claims would fail.

The court also granted the plaintiffs' countermotion for a discovery plan.

The respondents brought a motion seeking a contempt order against the applicant for breaching a disclosure order, an order to set aside restraining orders against Wilfred Abraham, and an order to appoint an inspector for Scorpio Specialty Services Inc. The court dismissed the contempt claim, finding non-compliance but not intentional breach.

It terminated the restraining orders against Wilfred Abraham, concluding they were no longer necessary due to changed circumstances and the applicant's inconsistent positions regarding Abraham's status.

The court granted the request to appoint BDO as an inspector under s. 161(2) of the Ontario Business Corporations Act, finding a prima facie case that the business affairs may have unfairly disregarded security holder interests, with the respondents initially bearing the investigation costs subject to re-apportionment at trial.

The applicant, a land developer, sought an order under the Partition Act for the sale of a co-owned 8.5-acre undeveloped property in Stoney Creek, which it held as tenants in common with the respondents.

The respondents, retired spouses, opposed the sale, preferring to retain their half-interest for recreational farming and proposing a partition of the property.

The court dismissed the respondents' proposed partition, finding it legally untenable as it would violate subdivision control provisions of the Planning Act.

The court also denied the respondents' request for a stay or adjournment to seek municipal consent for partition, citing lack of diligence and uncertain prospects of success.

Finding no malice, oppression, or vexatious intent by the applicant, the court ordered the property to be sold at fair market value and awarded costs to the applicant.

The appellant appealed a Small Claims Court decision awarding the respondent $23,251.25 for unpaid doors.

The appellant argued the respondent fraudulently misrepresented that it would be in Ontario 'for the long run', inducing the contract.

The trial judge found no misrepresentation, preferring the respondent's evidence.

The Divisional Court dismissed the appeal, holding that the trial judge made no palpable and overriding error in his factual findings.

The court also declined to hear new issues raised by the appellant on appeal, as leave was not sought under Rule 61.08(2).

Following the dismissal of the plaintiff's construction lien action and the success of the defendants' counterclaim, the defendants sought full indemnity costs against the plaintiff and its non-party principals.

The court found that the plaintiff's principal engaged in egregious conduct, including fabricating evidence and lying under oath, justifying a full indemnity costs award.

The court ordered costs against the plaintiff and one of its non-party principals jointly and severally, finding his conduct amounted to an abuse of process.

Costs were not awarded against the other non-party principal, as he did not orchestrate the deceit.