Wei Jiang

A discharge hearing in an ordinary administration bankruptcy where the bankrupt made an assignment on April 16, 2020.

The bankrupt had entered into an agreement of purchase and sale for a property for $1.4 million but failed to close the transaction, resulting in a claim by the vendor (Arista Homes) for damages of approximately $281,421.39.

The trustee and opposing creditor opposed the discharge on multiple grounds under section 173 of the Bankruptcy and Insolvency Act.

The court found facts proven under sections 173(1)(a), 173(1)(e), and 173(1)(o), relating to assets being less than 50 cents on the dollar, rash and hazardous speculation, and failure to perform duties under the BIA.

The court granted a conditional discharge requiring payment of 10% of proven claims and compliance with additional conditions.

The court found that the new landlord, Anisa Holdings Ltd., fundamentally breached, repudiated, and/or constructively evicted the tenant, Convocation Flowers Incorporated, by eliminating access to loading docks and the north driveway, which were essential for the tenant’s business.

The court also found a breach of the duty of good faith.

The issue of damages was bifurcated and ordered to proceed to trial.

This is an appeal from a Superior Court decision enforcing an international arbitral award.

The appellant (LinkGlobal Food Inc.) sought an adjournment in the lower court to obtain evidence regarding alleged failures of natural justice in the arbitration, which was denied.

The application judge enforced the award.

On appeal, LinkGlobal argued the denial of the adjournment was contrary to the interests of justice.

The Court of Appeal dismissed the appeal, finding no error in the application judge's discretionary decision, noting the appellant's lack of diligence in obtaining evidence and the narrow scope for refusing foreign arbitral awards.

This endorsement addresses the issue of costs following the denial of a Mareva injunction motion brought by the plaintiff.

The injunction, initially granted ex parte, was denied because the plaintiff failed to establish a strong prima facie case and did not make full and frank disclosure.

The defendants, as the successful party, sought costs on a complete indemnity basis.

The court, balancing the parties' conduct, awarded costs to the defendants on a partial indemnity basis, fixing the amount at $12,500.00 plus HST and disbursements.

The appellant, Anna Marlena Butryn, appealed a summary judgment order enforcing minutes of settlement in mortgage enforcement proceedings.

She argued she signed the minutes under undue influence and duress from her husband, John Chetti, and without independent legal advice.

The Court of Appeal upheld the motion judge's decision, finding no evidence the respondent had knowledge of the alleged undue influence/duress, that the minutes of settlement provided significant benefits to the appellant, and that she was represented by experienced litigation counsel, making independent legal advice from a separate lawyer unnecessary.

The court reiterated that a spousal relationship does not automatically create a presumption of undue influence requiring third-party inquiry unless coupled with a manifestly disadvantageous transaction.

The plaintiff, Ellen De Castro, brought a motion for summary judgment in an employment matter against Arista Homes Limited.

The defendant opposed, arguing that cross-examinations were not permitted in simplified procedures, the employment contract limited notice to statutory severance, and the plaintiff failed to mitigate damages.

The court rejected all defendant's arguments, finding that cross-examinations were permitted by court order, the termination provisions in the contract were unenforceable as they provided less than the statutory minimums under the Employment Standards Act, and the defendant failed to prove inadequate mitigation, especially given the plaintiff's personal circumstances (daughter's cancer and death) and the COVID-19 pandemic.

The court awarded the plaintiff 8 months' salary in lieu of notice, plus 10% for lost benefits and a prorated bonus, totaling $57,620.85.

The moving parties brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal.

As no costs outlines were provided by any party, the court made no order as to costs.

The applicant sought recognition and enforcement of a Chinese arbitral award under the UNCITRAL Model Law on International Commercial Arbitration.

The respondent requested an adjournment to gather evidence to oppose enforcement, alleging procedural irregularities and denial of natural justice during the arbitration.

The court denied the adjournment, citing the respondent's lack of diligence, the insufficient evidentiary basis for the alleged grounds, and the apparent lack of merit in the proposed arguments, which often sought to re-argue the arbitration's merits.

The court then granted the application, recognizing and enforcing the award, and ordered the respondent to pay costs to the applicant.

The appellant vendor appealed a summary judgment that granted specific performance to purchasers of three townhomes and dismissed the vendor's motion for forfeiture of deposits.

The transactions failed to close on the scheduled date due to delayed mortgage funds.

The motion judge found the vendor in anticipatory breach for prematurely terminating the Agreement of Purchase and Sale (APS), ruling that the "time is of the essence" clause did not impose a specific closing time and that the vendor acted unreasonably.

The Court of Appeal upheld the motion judge's decision, finding no error in the interpretation of the "time is of the essence" clause or the finding of anticipatory breach and bad faith.

The Court also denied leave to appeal the costs award, finding no error in principle or irrationality in the quantum.

The plaintiff, Rose-Terra Investments Inc., moved for summary judgment against the defendant, Anna Marlena Butryn, seeking damages for her default on minutes of settlement related to a mortgage.

The defendant raised several defenses, including duress, undue influence, lack of independent legal advice, bare trustee status, and want of consideration.

The court dismissed all of Ms. Butryn's defenses, finding no genuine issue for trial, and granted summary judgment in favour of the plaintiff, awarding damages for the shortfall on the property sale and associated costs.

The plaintiff appealed an Associate Justice's order discharging two certificates of pending litigation due to material nondisclosure on an ex parte motion.

The court found no error in the Associate Justice's decision and dismissed the appeal.

However, the plaintiff also moved for a Mareva injunction over the proceeds of sale of a property owned by the defendant daughter, arguing she failed to transfer a condominium to him as required by a separation agreement.

The court granted the Mareva injunction, finding a strong prima facie case, risk of dissipation of assets, and irreparable harm, and relieved the plaintiff from providing an undertaking in damages due to his limited financial means.

The appellants appealed a summary judgment requiring them to pay damages to the respondent, Rosehaven Homes Limited, for failing to complete an agreement of purchase and sale for a new home.

The appeal focused on the motion judge's admission and reliance on Rosehaven's expert report concerning property valuation and Rosehaven's mitigation efforts.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision to admit and rely on the expert report, noting it was verified by affidavit and the appellants did not object or provide competing admissible evidence.

The court also found no palpable and overriding errors in the assessment of Rosehaven's mitigation efforts or the quantification of damages.

This is an appeal and cross-appeal concerning a failed real estate transaction.

The appellant vendor sued the respondent purchaser for breach of an Agreement of Purchase and Sale (APS) and sought loss of bargain damages.

The motion judge found the respondent liable but erred in calculating damages by relying on expert evidence instead of the difference between the APS price and the actual resale price.

The Court of Appeal allowed the appeal, holding that where a vendor reasonably mitigates damages by reselling the property in an arm's length transaction, the loss of bargain damages are the difference between the original APS price and the resale price, and expert evidence is not required.

The cross-appeal, which challenged the pre-judgment interest rate and the deduction of interest on the deposit, was dismissed.

The defendant daughter brought a motion to discharge certificates of pending litigation (CPL) registered against two properties by the plaintiff father.

The father had obtained the CPL on an ex parte motion, claiming beneficial ownership of a condo registered in the daughter's name, the proceeds of which were allegedly used to purchase the properties.

The court found that while the father had a reasonable claim to an interest in land, he failed to make full and fair disclosure of material facts on the ex parte motion, including the source of the down payment and a letter stating the funds were a gift.

Balancing the equities, including the non-disclosure and the availability of damages as a remedy, the court discharged the CPL without security.

This appeal concerned a failed real estate transaction where the appellant vendor sued the respondent purchasers for losses after the purchasers refused to close.

The motion judge granted summary judgment to the purchasers, finding the vendor was not ready to close on the scheduled date as the house was not substantially complete, thus terminating the agreement.

The Court of Appeal upheld the motion judge's decision, affirming that the purchasers were ready to close and did not act in bad faith by obtaining financing, and that the vendor's miscalculation of the situation was its own responsibility.

The appeal was dismissed.

The plaintiffs, Rosehaven Homes Limited and Bram-Rose Homes Inc., brought a motion for summary judgment seeking damages for breach of an Agreement of Purchase and Sale (APS) after the defendants failed to close a real estate transaction.

The defendants argued the APS was invalid due to issues like lack of ID verification, unconscionability, wilful blindness, and that the plaintiffs failed to mitigate damages by refusing a vendor take-back mortgage.

The court granted summary judgment in favour of Rosehaven Homes Limited, finding no genuine issues requiring a trial.

The court dismissed the defendants' arguments regarding the APS's validity and mitigation, awarding damages and prejudgment interest to Rosehaven Homes Limited.

The applicants agreed to purchase a property from the respondents, who subsequently breached the Agreement of Purchase and Sale by refusing to close.

The respondents argued that the Deposit Clause in the Agreement limited the applicants' remedy to the return of their deposit.

The court found that the Deposit Clause did not clearly and unambiguously waive the applicants' right to claim damages, but only precluded specific performance.

The court awarded the applicants $150,000 in damages, representing the difference between the agreed purchase price and the appraised value of the property at the time of the breach, relying on the applicants' appraisal evidence.

The defendants (purchasers) brought a motion for summary judgment against the plaintiff (builder/vendor) for the return of their deposit and damages following a failed real estate transaction.

The plaintiff had elected to affirm the Agreement of Purchase and Sale after an anticipatory repudiation by the defendants, keeping the closing date alive.

On the closing date, the defendants tendered the closing funds, but the plaintiff failed to provide a substantially completed home ready for occupancy.

The court found the plaintiff in fundamental breach of the agreement, entitling the defendants to terminate the contract.

The defendants were awarded the return of their $55,000 deposit and $25,000 in damages for the costs of borrowing the closing funds.

The plaintiffs brought a motion to strike the jury notice in a motor vehicle accident action, arguing that delays in jury trials caused by the COVID-19 pandemic would prejudice the plaintiff's loss of income claim.

The court dismissed the motion, finding that the plaintiffs failed to discharge their onus to show that justice would be better served by discharging the jury.

The court noted that the delay was partly due to the parties' own pre-trial timelines and that jury trials might resume in the near future.

This is a costs endorsement following an appeal.

The appellant, Yong Yeow Tan, was ordered to pay costs to the respondents, C & K Mortgage Services Inc. and the Receiver for Camilla Court Homes Inc. and Elite Homes Inc. C & K Mortgage Services Inc. was awarded $20,000, and the Receiver was awarded $7,500, inclusive of taxes and disbursements.