Wolfgang Siegfried Kaufmann

The appellant purchased furniture, fixtures, and equipment, including a large racking system, from insolvent tenants under a court-approved Liquidation Process Order in bankruptcy proceedings.

The appellant failed to remove the racking from the landlord's distribution centre/warehouse before the lease disclaimer date and multiple deadlines.

The trial judge dismissed the appellant's conversion claim, finding that the racking was deemed abandoned pursuant to the Sale Guidelines incorporated in the Liquidation Process Order, which provided that any fixtures or personal property left in a store after the sale termination date and lease disclaimer would be deemed abandoned.

The Court of Appeal upheld the trial judge's interpretation, holding that the deemed abandonment provision was irrebuttable when read in the context and purpose of the insolvency proceedings, and that the appellant could have sought a variation of the order through the come-back provision but failed to do so.

The appeal and the respondents' cross-appeal on damages were both dismissed.

The moving party sought to review an order denying a stay of enforcement of a mortgage, specifically a writ of possession.

The Court of Appeal found the motion moot because the first mortgagee had taken possession, the moving party had refinanced the property and retaken possession.

The underlying appeal had been dismissed by a prior order denying an extension of time for perfection of the appeal.

The motion was dismissed with costs awarded to the respondent.

Following the dismissal of the appeal, the court received written submissions on costs.

The court ordered the appellant to pay the respondents' costs fixed at $25,000, plus disbursements and applicable HST.

This motion concerned the approval of a sale process and transaction by The Fuller Landau Group Inc., acting as Receiver, for the Real Property owned by the Debtor, Chacon Strawberry Fields Inc. The Receiver sought approval for the sale, a vesting order, and an interim distribution to the first secured lender, First Source Financial Management Inc. The respondents (debtors) requested an adjournment and access to confidential sale information to facilitate a redemption, while a third-party (unsuccessful bidder) sought consideration of a late offer.

The court denied the respondents' and third-party's requests, finding their redemption plan insufficient and their attempts to interfere with the established sales process inappropriate.

The court granted the Receiver's motion in its entirety, approving the sale, vesting order, interim distribution, and a sealing order for commercially sensitive information, affirming the integrity and efficacy of the court-supervised sales process.

In a trial for conversion, the plaintiff claimed the landlord unlawfully disposed of its racking system after a lease disclaimer.

The landlord argued the racking was deemed abandoned under a court order from bankruptcy proceedings or, alternatively, that its disposal was justified due to the plaintiff's trespass.

The court found that the "deemed abandonment" provision in the liquidation order was a valid defense, and even if not, the landlord acted reasonably in disposing of the racking given the plaintiff's trespass and the high costs of preservation.

The plaintiff's claim for conversion was dismissed.

The landlord's counterclaim for lost rental revenue was also dismissed due to insufficient evidence on damages.

The appellant tenant sought to overturn a summary judgment, arguing that commercial landlords have a duty to mitigate damages even when they do not accept a tenant's repudiation of a lease, and that a lease clause capped damages.

The Court of Appeal affirmed the motion judge's decision, holding that it was bound by Supreme Court of Canada precedent (Highway Properties v. Kelly, Douglas & Co.) which states no such duty to mitigate exists when the landlord insists on performance of the lease.

The court also upheld the motion judge's interpretation of the lease clause, finding that the two-year rent cap on damages only applied if the landlord had terminated the lease, which it had not.

The appeal was dismissed.

This endorsement addresses the costs following a judgment where the Applicant, Looking Glass Group Ltd., was awarded damages for breach of contract.

The Applicant sought costs on a substantial indemnity basis or, alternatively, on a partial indemnity basis.

The Respondent acknowledged liability for costs but argued for a lower amount.

The court rejected the claim for substantial indemnity costs, finding no reprehensible conduct by the Respondent.

Instead, the court awarded the Applicant partial indemnity costs in the amount of $48,406.42, finding this amount fair and reasonable given the Respondent's weak arguments and lowball settlement offers, which unnecessarily increased litigation expenses and impeded access to justice.

The applicant, Looking Glass Group Ltd. (LGG), sought payment under a marketing agreement with its former customer, TidySquares Limited, for commissions and minimum payments.

The agreement stipulated minimum payments if TidySquares intentionally failed to supply inventory, unless due to force majeure.

TidySquares ceased supplying inventory, arguing force majeure due to manufacturer issues and that LGG waived its rights, and that the minimum payment clause was an unenforceable penalty.

The court found TidySquares intentionally stopped supplying inventory due to a change in business model, rejected the force majeure and waiver arguments, and upheld the minimum payments clause as a genuine pre-estimate of damages.

The moving party (respondent in the main application) sought a confidentiality order to prevent the disclosure of certain commercial information in an upcoming summary trial regarding a terminated commercial lease.

The moving party relied on a confidentiality provision in the lease agreement.

The court applied the Sherman Estate test and interpreted the lease's confidentiality clause, finding that the clause explicitly exempted litigation between the parties.

Without an applicable confidentiality clause, the moving party failed to establish an important commercial interest that outweighed the public interest in open courts.

The motion was dismissed.

The applicant parents and respondent son brought competing applications under the Partition Act regarding the ownership of a residential property.

The parents claimed 100% beneficial ownership based on a resulting or constructive trust, while the son claimed 100% beneficial ownership based on monetary gifts and his legal title.

The court found that the property was purchased as part of a family real estate joint venture.

The court declared the parties to be 50:50 owners, subject to a resulting trust recognizing the parents' financial contributions, and ordered the partition and sale of the property with the net proceeds to be divided equally.

The plaintiffs brought a motion to enforce a settlement agreement regarding the partition and sale of a jointly owned property.

The defendants refused to conclude the settlement, arguing they faced contingent tax liability because the non-resident plaintiff failed to obtain a clearance certificate under s. 116 of the Income Tax Act.

The court found that the defendants had discharged their tax liability by withholding and remitting 25% of the purchase price and rental income to the CRA, and therefore faced no contingent tax liability.

The motion to enforce the settlement was granted.

The plaintiff tenant moved for an injunction or relief from forfeiture after the defendant landlord terminated its commercial lease for non-payment of rent.

The tenant had a history of late payments, and its rent cheque was returned due to a frozen bank account.

The premises had also suffered two floods, and the tenant had ignored fire code violations.

The court denied the injunction but granted relief from forfeiture, noting the disproportionate impact termination would have on the tenant's investment.

Relief was granted on strict conditions, including payment of all rent arrears, expenses, and full indemnity costs.

The appellant failed to appear for the appeal hearing.

The Court of Appeal for Ontario dismissed the appeal and fixed costs at $10,000 all-inclusive against the appellant.

The appellant, a fitness club operator, appealed a judgment declaring it had lost its right to extend its commercial lease with the respondent landlord.

The application judge found the appellant had breached the lease by: (1) operating a fitness club at Park Road in violation of geographic non-compete restrictions; and (2) failing to calculate and report gross revenue in accordance with lease provisions for percentage rental payments.

The appellant was given notice to cure but failed to do so.

The Court of Appeal dismissed the appeal, finding no overriding or palpable errors in the application judge's interpretation of the lease, rejection of waiver and promissory estoppel defences, and refusal to grant relief from forfeiture.

Wittington Properties Limited applied for declarations that GoodLife Fitness Centres Inc. had lost its right to extend a lease due to ongoing breaches related to gross revenue reporting and a competition provision.

GoodLife brought a cross-application for declarations affirming its right to extend the lease and, in the alternative, relief from forfeiture.

The court found GoodLife was in default of the lease regarding both gross revenue reporting and the competition provision, and that GoodLife had not proven its breaches were de minimis or that Wittington had waived its rights or acted in bad faith.

Consequently, the court declared GoodLife had no right to extend the lease and ordered vacant possession.

Following the dismissal of a defendants’ motion for summary judgment, the court addressed costs.

The successful party sought costs of approximately $19,667, arguing the implied denial rule made a reply unnecessary.

The court held that the plaintiff failed to properly plead the factual basis for rescission of a key agreement, contrary to Rules 25.07(3) and 25.08(1) of the Rules of Civil Procedure, because a different version of facts must be specifically pleaded in a reply.

Although the plaintiff successfully resisted summary judgment, the inadequate pleadings contributed to the motion being brought.

In the circumstances, the court ordered that neither party receive costs of the summary judgment motion.

The defendants moved for summary judgment dismissing a commercial dispute arising from a failed business relationship and an Asset Allocation Agreement concerning several development properties.

The moving parties argued the claim was answered by the agreement or was statute-barred under the Limitations Act, 2002.

The court held the matter was not suitable for summary judgment because the evidentiary record disclosed numerous genuine issues for trial, including unpleaded rescission-related allegations and intertwined disputes across several related proceedings.

The motion was dismissed, and the court indicated a present intention to award no costs because the responding party had helped provoke the motion through deficient pleadings.

A commercial condominium corporation sought a compliance order against a grocery store tenant and its landlord to prevent the display of merchandise on the common element sidewalk.

The application judge granted the compliance order, dismissed the landlord's oppression application, and awarded costs to the condominium corporation.

The landlord and tenant appealed the compliance order, and the condominium corporation cross-appealed the costs award.

The Court of Appeal dismissed the main appeal, finding the limitation period had not expired due to continuous breaches, and upheld the dismissal of the oppression application.

However, the Court allowed the cross-appeal on costs, finding the application judge erred in principle by failing to explain her calculation of 'additional actual costs' under s. 134(5) of the Condominium Act, 1998, and remitted the costs issue for reconsideration.

The appellant appealed a decision regarding the apportionment of taxes under a commercial lease.

The Court of Appeal upheld the application judge's conclusion that there was a separate apportionment as contemplated by the lease and that the appellant had elected to recoup taxes on that basis and could not resile from that election.

The appeal was dismissed.

The plaintiff landlord appealed the dismissal of its action for damages for breach of a commercial lease.

The subtenant vacated the premises before the end of the sublease term, but rent was fully paid at the time.

The landlord immediately changed the locks and issued a notice of repudiation before the next rent payment was due.

The Court of Appeal upheld the motion judge's finding that the landlord fundamentally breached the lease by acting before any default occurred, entitling the tenant to treat the lease as at an end.

The appeal was dismissed.