Wendy Hope Greenspoon-Soer

Following a motion in civil litigation, the successful responding parties sought costs on a substantial indemnity basis.

The court considered the absence of a Rule 49 offer and found no litigation misconduct or other circumstances warranting elevated costs.

The court rejected claims of over-preparation and noted a lack of genuine compromise in negotiations by certain parties.

Costs were awarded to the successful parties on a partial indemnity basis in a fixed amount inclusive of HST and disbursements.

The Court of Appeal for Ontario issued an appeal book endorsement directing that an order go as per the amended draft order filed by the parties.

The applicant brought a motion turning on whether two lots were subject to a development restriction contained in paragraph 2(o) of a prior consent order.

Applying ordinary contractual interpretation principles, the court held the restriction was limited to lands described in Schedule A and did not include the disputed lots.

As a result, the respondents were not prohibited from pursuing the proposed minor variance.

The motion was dismissed, the temporary injunction was vacated, and the assessment of damages under the undertaking was referred to the local registrar.

The applicant sought recognition of a 50 percent ownership interest in residential property, rectification of title, and partition and sale after a later registered transfer reduced her interest to 5 percent.

The court found that the respondent had made a bona fide gift of a one-half interest to the applicant in 2013 within the context of an intimate relationship, and that the subsequent transfer was executed without the applicant's knowledge or consent.

Treating the impugned transfer instrument as fraudulent and void under the Land Titles Act, the court ordered rectification of the register.

The court further held that the respondent had shown no basis to resist partition and sale under the Partition Act and ordered the property listed for sale with equal division of net proceeds.

The appellants agreed to purchase a home from the respondent for $2.9 million, but the transaction failed to close.

The trial judge found that the appellants repudiated the agreement and forfeited their $75,000 deposit, declining to grant relief from forfeiture despite the property later selling for more.

On appeal, the appellants argued the respondent had repudiated the contract by failing to close on the required date.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the contract remained alive until the appellants chose not to proceed, and that retaining the deposit was not unconscionable.

Competing applications arose from an aborted commercial sublease transaction.

The sub-tenant sought a declaration that the sublease was null and void and requested the return of its deposit, arguing that conditions regarding head landlord approval and creditworthiness were not properly satisfied within the contractual time limits.

The court found that notice of the head landlord’s approval by email satisfied the agreement and applicable statutory provisions, and that the sub-tenant’s own failure to timely provide required financial information prevented it from relying on the timing of the creditworthiness condition.

Applying the principle that a party cannot rely on the non‑fulfillment of a condition it caused, the court held the sublease binding and breached by the sub-tenant.

The deposit was forfeited and damages were to be determined in a subsequent proceeding.

The plaintiff lender brought a motion for summary judgment to recover debts arising from factoring agreements and related guarantees after discovering that several assigned accounts receivable were fabricated or previously paid.

The court applied the summary judgment framework articulated in Hryniak v. Mauldin and determined there was no genuine issue requiring a trial.

The evidence established defaults under the agreements, triggering the lender’s right to immediate repayment and enforcement of its security interests.

A counterclaim alleging wrongful enforcement and interference with a business relationship was dismissed for lack of proof.

Summary judgment was granted for the debt claim and costs awarded on a partial indemnity basis.

Two related condominium applications were heard together concerning unpaid common expenses for parking units associated with a residential condominium unit.

The owner relied on an error in the condominium corporation’s status certificate that failed to include common expense amounts for two parking spaces and argued it was bound by the certificate under s. 76 of the Condominium Act, 1998.

The corporation sought enforcement under s. 134 of the Act and confirmation of a condominium lien for unpaid common expenses.

The court held that while the status certificate bound the corporation for the fiscal year in which it was issued, it did not relieve the owner from ongoing obligations to contribute to common expenses thereafter.

The lien was confirmed but reduced due to the corporation’s initial error, with limited costs awarded.

Two related condominium applications were heard together concerning unpaid common expenses for parking units associated with a residential condominium unit.

The owner relied on an error in the condominium corporation’s status certificate that failed to include common expense amounts for two parking spaces and argued it was bound by the certificate under s. 76 of the Condominium Act, 1998.

The corporation sought enforcement under s. 134 of the Act and confirmation of a condominium lien for unpaid common expenses.

The court held that while the status certificate bound the corporation for the fiscal year in which it was issued, it did not relieve the owner from ongoing obligations to contribute to common expenses thereafter.

The lien was confirmed but reduced due to the corporation’s initial error, with limited costs awarded.

A shareholder and creditor of a bankrupt corporation sought an order restraining the trustee in bankruptcy from selling the estate’s interest in a lawsuit and requested authorization under s. 38 of the Bankruptcy and Insolvency Act to continue the action on behalf of the estate.

The trustee had received an offer from a secured creditor to purchase the estate’s interest in the litigation and conducted a process inviting competing bids from creditors.

The moving creditor declined to submit a competing bid but sought a s. 38 assignment to pursue the claim himself.

The court held that the trustee acted reasonably in exposing the asset to the market to maximize recovery for creditors and that no basis existed to interfere with the trustee’s decision.

The motion was dismissed and the trustee was authorized to complete the sale of the cause of action.

The parties entered into an oral joint venture to redevelop a residential property, with profits to be shared equally after completion and sale.

After disputes arose during construction, the defendant excluded the plaintiff from the project, refused to acknowledge the plaintiff’s interest in the property, obtained a second mortgage without notice, and ultimately sold the unfinished property without the plaintiff’s consent.

The court found the arrangement constituted a partnership under the Partnerships Act and that the defendant’s conduct amounted to a repudiation and breach of the partnership agreement.

The plaintiff was therefore justified in ceasing further financial contributions after being excluded from the project.

Liability was determined in Phase 1, with damages and accounting to be addressed in a subsequent phase.

Counter-applicants sought relief relating to a commercial property, including vacating an existing Certificate of Pending Litigation (CPL) registered by the applicants and obtaining leave to register their own CPL.

The moving parties alleged they advanced substantial funds to entities controlled by an individual who promised mortgage security but failed to properly register it, and that fraudulent transfers of mortgage interests had occurred.

The court found that the counter-applicants had demonstrated a reasonable claim to an interest in land and that there remained triable issues regarding the validity of the mortgage interests.

Although the applicants had not prosecuted their claim diligently, the court declined to discharge the existing CPL at this stage given the procedural posture and ongoing litigation.

Leave was granted to the counter-applicants to issue a CPL while the earlier CPL remained in place.

In an addendum to an appeal decision released on January 8, 2010, the Court of Appeal for Ontario fixed the costs of the dismissed appeal.

The respondent was awarded costs fixed in the sum of $40,000, inclusive of disbursements and GST.

The cross-appeal was dismissed without costs.

The appellants, limited partners in a condominium complex, appealed a trial judgment dismissing their claims for negligent misrepresentation and breach of fiduciary duty against the respondent lender, and rejecting their defences to the respondent's shortfall action following power of sale proceedings.

The appellants argued that the respondent failed to inform them of property tax arrears when renewing the mortgage.

The Court of Appeal dismissed the appeal, finding that the respondent's relationship was solely with the general partner, and it owed no duty of care or fiduciary duty to communicate directly with the limited partners.