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Good afternoon.

Following are summaries of the civil decisions of the Ontario Court of Appeal for the week of January 31-February 4, 2022.

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Congratulations to Blaney lawyer Jason Mangano for successfully defending an appeal in a condominium law case involving the ability of a condo board to charge fees to unit owners who rented out their units on a short-term basis. In Cottage Advisors of Canada Inc. v. Prince Edward Vacant Land Condominium Corporation No. 10, the Court upheld the application judge’s refusal to strike down the provisions in the condominium’s by-law that provided for the charging of such fees.

Congratulations also to Blaney lawyers Varoujan Arman and Philip Yang for successfully defending an appeal from a damages award for breach of an agreement of purchase and sale of land. In Calleja v. Ahmadi, the Court upheld the motion judge’s summary judgment dismissing the appeal.

Other topics covered this week included unjust enrichment in the family law/joint family venture context, claims to repayment of debts and stays for lack of jurisdiction in favour of foreign proceedings.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Cottage Advisors of Canada Inc. v. Prince Edward Vacant Land Condominium Corporation No. 10, 2022 ONCA 107

Keywords: Real Property, Condominiums, By-laws, Oppression, Condominium Act, 1998, S.O. 1998, c. 19, s. 84(1) and 135, London Condominium Corp. No. 13 v. Awaraji, 2007 ONCA 154, Walia Properties Ltd. v. York Condominium Corp. No. 478, 2007 CanLII 31573

Tsai v. Dugal, 2022 ONCA 81

Keywords: Family Law, Wills and Estates, Real Property, Unjust Enrichment, Joint Family Venture, Kerr v. Baranow, 2011 SCC 10

AOD Corporation v. Mirama Investment Incorporated, 2022 ONCA 95

Keywords: Intellectual Property, Patents, Contracts, Options to Purchase, Corporations, Indoor Management Rule, Borrowing Powers, Canada Business Corporations Act, R.S.C., 1985, c. C-44, ss. 18(1), 189(3), Kaiman v. Graham, 2009 ONCA 77, The Midas Investment Corporation v. Bank of Montreal, 2016 ONSC 3003

UD Trading Group Holding Pte. Limited v. TransAsia Private Capital Limited,2022 ONCA 100

Keywords: Civil Procedure, Stay of Proceedings, Jurisdiction, Forum Non Conveniens, Forum Selection Clauses

Heidari v. Naghshbandi ,2022 ONCA 102

Keywords: Contracts, Debtor-Creditor, Corporations, Oppression

Devi Financial Inc. v. Everwood Place Ltd. ,2022 ONCA 104

Keywords: Contracts, Debtor-Creditors, Mortgages, Guarantees, Civil Procedure, Summary Judgment, Personal Property Security Act, R.S.O. 1990, c. P. 10, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, Rules of Civil Procedure, Rule 20, Hryniak v. Mauldin, 2014 SCC 7, Arora v. Whirlpool Canada LP, 2013 ONCA 657

 

Short Civil Decisions

Calleja v. Ahmadi, 2022 ONCA 106

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Summary Judgement, Procedural and Natural Justice, Adequacy of Reasons

Tharani Holdings Inc. v. Metropolitan Toronto Condominium Corporation No. 812, 2022 ONCA 93

Keywords: Real Property, Condominiums, Directors, Oppression, Civil Procedure, Procedural and Natural Justice, Reasonable Apprehension of Bias, Condominium Act, 1998, S.O. 1998, c. 19, O. Reg. 48/01

Susin Estate v. TD Waterhouse Discount Brokerage (TD Waterhouse Canada Inc.), 2022 ONCA 101

Keywords: Contracts, Debtor-Creditor, Margin Trading Accounts, Civil Procedure, Summary Judgment, Questrade Inc. v. Gu, 2011 ONSC 4106, Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907

Asghar v. Toronto (City), 2022 ONCA 98

Keywords: Civil Procedure, Striking Pleadings, Abuse of Process, Frivolous, Vexatious, 2.1.01 Rules of Civil Procedure, Rule 2.1.01


CIVIL DECISIONS

Cottage Advisors of Canada Inc. v. Prince Edward Vacant Land Condominium Corporation No. 10, 2022 ONCA 107

[Doherty, Tulloch and Sossin JJ.A.]

Counsel:

M. Mackey, for the appellant

Jason Mangano, for the respondent

Keywords: Real Property, Condominiums, By-laws, Oppression, Condominium Act, 1998, S.O. 1998, c. 19, s. 84(1) and 135, London Condominium Corp. No. 13 v. Awaraji, 2007 ONCA 154, Walia Properties Ltd. v. York Condominium Corp. No. 478, 2007 CanLII 31573

facts:

The respondent, Prince Edward Vacant Land Condominium Corporation No. 10 (“the Condominium”), is a 237-unit cottage resort built near the Sandbanks in Prince Edward County, Ontario. The units are individually owned. The property is a summer resort, complete with pools, sports courts, and a fitness centre. The resort is not open in the winter. The units cannot be used as primary residences.

From the outset, it was understood the owners of individual units could rent out their units on a short-term basis when they were not using them. As of this application, over half of the unit owners rented out their units on a short-term basis. Renters had access to the common amenities on the property.

The appellant, Cottage Advisors of Canada Inc. (“CAC”), has been involved in the Condominium from the beginning. CAC was the developer and declarant of the Condominium. It has owned multiple units in the Condominium from the outset.

The resort opened by 2011. CAC, through a sister company (“SSVRM”), provided management services for the Condominium and onsite rental services for those unit owners who wished to rent their units. SSVRM charged fees for those services. A by-law passed in July 2011 directed that renters would be subject to a “rental amenity fee charged by the Corporation from time to time”. SSVRM collected the amenity fee. None of the unit owners, including CAC, ever challenged the fee.

The Condominium has been operating under the authority of a Board of Directors since 2016. The relationship between the Board and SSVRM has deteriorated over the years. The Condominium and SSVRM have litigated over SSVRM’s voting rights. The Condominium Board also terminated SSVRM’s management agreement. CAC takes the position that the Board is controlled by owners who do not rent and favours the interests of that group over the owners who do rent. CAC is an owner/renter.

The Board decided it would take over the oversight, control and management of the rental activities at the Condominium. In furtherance of that goal, the Board introduced By-Law No. 7 in November 2020. The By-Law passed overwhelmingly by a vote of 155 for and 16 against. CAC did not vote its 25 votes.

By-Law No. 7 addressed various aspects of the rental activities. CAC challenged the vires and reasonableness of several components of the By-Law. The application judge struck down parts of the By-Law and upheld other parts. CAC appealed the application judge’s refusal to strike down two specific components of By-Law No. 7.

issues:

(1) Did the application judge err in holding the Condominium had the authority to charge owners who rented their units an administrative fee of about $120 each time the unit was rented?

(2) Was the application judge wrong in upholding the Condominium’s power to impose an amenity fee of $310 per week?

holding:

Appeal dismissed.

reasoning:

(1) and (2) No.

It was explicit in s. 22 of the Condominium’s Declaration that the Condominium consisted of units owned by owners who do not rent and owners who do rent their units. It was equally explicit that those who choose to rent their units would be governed in part by “Rules and Regulations with respect to the rental of Cottage Units approved by the Board”.

The question became whether the By-Law, to the extent that it sets an administrative fee and an amenity fee in respect of rented units, was a “Rule or Regulation with respect to the rental of Cottage Units”.

The Court did not answer that question as a matter of first impression, but had regard to the application judge’s factual findings and due deference to the Board’s own interpretation of the powers granted to it under the Declaration: London Condominium Corp. No. 13 v. Awaraji.

The application judge was satisfied that the fees offset costs attributable to the renting activities of some of the owners. That finding was available on the evidence adduced on the application. The manner in which fees attributable to renting have historically been treated by the Condominium provided strong support for that conclusion. Amenity fees attributable to costs relating to renting units have been part of the operation of the Condominium from the outset, when CAC was in control of the operation.

The Board’s interpretation of its powers under s. 22 of the Declaration was not unreasonable, nor was it inconsistent with any provisions in the Condominium Act, 1998.

Nor could the By-Laws providing for the fees be characterized as “oppressive” within the meaning of s. 135 of the Condominium Act, 1998. Oppressive conduct connotes conduct that runs contrary to the reasonable expectations of those said to be oppressed. Once again, the history of charging these kinds of fees throughout the life and operation of the Condominium belied any claim that the owners who rented did not anticipate and agree to such fees.

Any argument that the By-Laws were oppressive fell under the weight of the application judge’s finding that there was a reasonable basis upon which the Board could conclude the renting activities generated added costs and expenses. The revenue generated by the fees lowered the common expenses of all unit owners equally.


Tsai v. Dugal , 2022 ONCA 81

[Strathy C.J.O., Harvison Young and Zarnett JJ.A.]

Counsel:

M. S. Deverett, for the appellant

A. Carr and S. Dosanjh, for the respondents

Keywords: Family Law, Wills and Estates, Real Property, Unjust Enrichment, Joint Family Venture, Kerr v. Baranow, 2011 SCC 10

facts:

The appellant and the respondent, now deceased, began a romantic relationship in 2001 which progressed to cohabitation and ended in separation in July 2014. Shortly after their separation, the appellant commenced litigation making claims against all properties owned by the respondent at the time of separation. The respondent died in November 2017, and his two children, his estate trustees, have continued to defend the claim.

By the time of the hearing in 2019, the only issue for the hearing was whether the appellant was entitled to an interest in the proceeds of one of these properties (“123 Morse”) based upon the doctrine of unjust enrichment. The application judge dismissed the appellant’s claim and the appellant appealed.

issues:

(1) Did the application judge make numerous palpable and overriding errors of fact leading to her erroneous conclusion that the appellant had not made out a claim in unjust enrichment?

(2) Did the application judge err in failing to find that the appellant was entitled to a share in the proceeds of the home that the parties lived in on the basis that it was a joint family venture?

holding:

Appeal dismissed.

reasoning:

(1) and (2) No.

The application judge applied the correct test, asking whether there was (a) an enrichment of the respondent; (b) a corresponding deprivation of the appellant; and (c) the absence of any juristic reason for the enrichment. She went on to say that once an unjust enrichment had been established, the concept of joint family venture comes into play when considering a remedy. She noted that “interwoven with [the appellant’s] argument of unjust enrichment is the concept of joint family enterprise which she submits entitles her to share in the value of 123 Morse”. She also correctly noted that the appellant bear the onus of proving both unjust enrichment and the existence of a joint family venture.

The Court saw no palpable and overriding errors on the part of the application judge. She was alive to the record and to the fact that the appellant did make some contributions. Concerning the investments in the Jones Ave. and Queen St. East properties (both of which were held in the respondent’s name alone), she clearly found that the appellant was compensated in the amount of $300,000 that the respondent directed be paid to her from the proceeds of their sale around the time of their separation. This amount represented roughly half of the net proceeds of their sale. As far as 123 Morse was concerned, it was certainly true that the property was worth much more when it was sold in May 2019 than when the parties first began their cohabitation, but this benefit to the respondent was not achieved at the expense of the appellant. The application judge found that any contributions she made were modest and offset by the fact that she lived rent-free at 123 Morse, as did her son for significant periods of time. It was worth noting that prior to the parties’ cohabitation, the respondent lived in the basement of 123 Morse and rented out the upper two floors, so he lost the rental income that he had received before.

Nor did the Court find any error in the application judge’s part in concluding that, even if there had been unjust enrichment, the appellant had not discharged her onus of establishing a joint family venture. The appellant did not argue that the application judge did not apply the right test as set out in Kerr v. Baranow. She was not satisfied that there was mutual effort, economic integration, actual intent, and priority of the family. Despite the fact that the couple lived together and apparently made some real estate investments cooperatively, she found that “the evidence indicates that they did not go so far as to be able to be described as having pooled their efforts and worked toward a common goal.” They did not fully integrate their finances. None of the properties were held jointly. They had no joint bank accounts or separate vehicles and seem to have kept much of their respective assets separate from each other.


AOD Corporation v. Mirama Investment Incorporated, 2022 ONCA 95

[van Rensburg and Roberts JJ.A. and Tzimas J. (ad hoc)]

Counsel:

S. Émard-Chabot, for the appellant

P. Champagne, for the respondent, Miramare Investment Incorporated

A. M., acting in person

Keywords: Intellectual Property, Patents, Contracts, Options to Purchase, Corporations, Indoor Management Rule, Borrowing Powers, Canada Business Corporations Act, R.S.C., 1985, c. C-44, ss. 18(1), 189(3), Kaiman v. Graham, 2009 ONCA 77, The Midas Investment Corporation v. Bank of Montreal, 2016 ONSC 3003

facts:

The appeal involved the application of the indoor management rule in relation to the parties’ January 30, 2012 patent agreement concerning the appellant’s intellectual property. At stake in the appeal was the right to own and monetize approved patents, in particular a patent granted in the United States in January 2018 that will expire in 2025. The appellant is a corporation appealing the dismissal of the application for a declaration that the January 30, 2012 agreement was invalid and argues that it is the sole owner of the granted patent.

The appellant’s predecessor, Wrapped Apps Corporation (“WAC”), originally owned the patent application for the patent in issue under the January 30, 2012 agreement. WAC had financial difficulties and its intellectual property, including the patent, was transferred to its secured creditors. After the transfer, Mr. M, operating mind, president, director and shareholder of both WAC and the appellant at the time, acted as trustee for the secured creditors, who maintained an interest in the pending patent applications. The secured creditors were given a ten-year option, expiring may 2019, to convert their interest into shares of the appellant. Most, but not all, did.

The parties entered into the January 30, 2012 agreement so that Miramare could replace the unincorporated moniker of NI and assume the 2011 agreement on the same terms as previously agreed to in 2011. Paragraph 19 provided that the agreement “is binding from the date of acceptance of the original Agreement in Principle between NI and AOD dated June 25, 2011 and supersedes that agreement in full.” The agreement also provided that the security holders had assigned their interests in WAC’s intellectual property to the appellant. It further stipulated in paragraph 22 that AM “warrants he has authority to execute this agreement as Trustee on behalf of [the appellant] and the Wrapped Apps Debenture Holders.” He signed the January 30, 2012 agreement as “Trustee”. Miramare performed its obligations under the January 30, 2012 agreement. Upon the approval of the Patent in January 2018, Miramare notified the appellant that it would exercise its option to purchase the Patent. The appellant objected, taking the position for the first time that the January 30, 2012 agreement was not valid. The parties attempted to negotiate a resolution. They failed and litigation ensued.

issues:

(1) Did the application judge err by failing to address the provisions of s. 189(3) of the CBCA and in finding that the indoor management rule applied in the circumstances of this case?

(2) Did the application judge make a palpable and overriding error in determining that the respondent, Miramare, did not have any knowledge of any irregularities in the approval of the January 30th, 2012 agreement through Miramare’s representative?

holding:

Appeal dismissed.

reasoning:

(1) No.

This argument was only raised for the first time on appeal. There was no reference to s. 189(3) in the Notice of Application. As a general rule, an appellate court will not entertain a new issue for the first time on appeal since prejudice will result to the respondent because of the inability to call evidence in response to the new issue. The Court did not have the benefit of any factual findings on the issue by the application judge. The Court was also not able to determine the issue based on the evidence in the record. The evidence concerning the assets and business of the appellant was equivocal on the issues.

(2) No.

Section 18(1) incorporates the indoor management rule at common law. That rule provides that parties dealing with a corporation, acting in good faith and without knowledge of any irregularity, are entitled to assume that a corporation’s internal policies and proceedings have been followed and complied with. There was no error in the application judge’s finding that Miramare had no knowledge of any irregularity; his finding was firmly rooted in the record.


UD Trading Group Holding Pte. Limited v. TransAsia Private Capital Limited,2022 ONCA 100

[Doherty, Benotto and Huscroft JJ.A]

Counsel:

M. Schafler and A. Basmadjian, for the appellant

George J. Pollack and F. Lalani, for the respondents TransAsia Private Capital Limited, TA Private Capital Security Agent Ltd.

R. Shastri and K. Jennings, for the respondents Rutmet Inc.

J. Macdonald, for the respondents Export Development Canada

Keywords: Civil Procedure, Stay of Proceedings, Jurisdiction, Forum Non Conveniens, Forum Selection Clauses

facts:

The appellants (“UDG”) are metal traders operating in Asia and the Middle East. The respondents, with the exception of Rutmet Inc. (“Rutmet”), and Export Development Canada (“EDC”), collectively referred to as “TAP”, provide financing through various means to metal traders. TAP operate out of Singapore, Hong Kong and the British Virgin Islands. Rutmet, unlike the other entities, is incorporated and does carry on business in Ontario.

TAP had loaned funds for metal purchases to UDG and to Rutmet. TAP commenced proceedings in Singapore and Dubai on the debts it alleged UDG owed to them. Subsequent to the commencement of these proceedings, UDG advanced as claims in Ontario for declaratory relief effectively the same allegations it raised as defences in the foreign proceeding.
UDG brought an anti-suit injunction to enjoin TAP from pursuing the foreign litigation. TAP brought a cross-motion to UDG’s anti-suit injunction. TAP sought an order permanently staying UDG’s Ontario proceeding on the basis that the foreign jurisdictions in which litigation was already underway were clearly more appropriate jurisdictions than Ontario. The motion judge granted that motion. UDG appealed.

issues:

(1) Did the motion judge err in permanently staying UDG’s Ontario proceeding on the basis that the foreign jurisdictions in which litigation was already underway were more appropriate jurisdictions?

holding:

Appeal dismissed.

reasoning:

(1) No.

The decision to stay a proceeding in Ontario in favour of an ongoing proceedings in another jurisdiction involves both fact-finding and the exercise of judicial discretion. This court must defer to the motion judge’s fact-finding and exercise of her discretion, absent an error in law, a material misapprehension of the evidence, or unreasonable factual findings.
The motion judge made two important findings of fact, and the subject decision must be seen through the lens of those findings and assessed in light of them. The underlying commercial transactions showed little, if any, connection to Ontario, apart from the involvement of Rutmet. The same can be said for the various entities involved in those transactions. Further, the Court agreed with the motion judge rejecting UDG’s arguments that TAP had attorned to the jurisdiction of the Ontario court when it commenced (and shortly thereafter abandoned) a receivership application in relation to Rutmet, and when it brought an application for a judicial interpretation of an insurance policy issued by Export Development Canada in respect of some of the receivables in issue between Rutmet and TAP. The Court also held that the applicable forum selection clauses were “clear and unambiguous”, agreed to by sophisticated actors, and therefore TAP was in control of the choice of forum.


Heidari v. Naghshbandi,2022 ONCA 102

[Pepall, Brown and Thorburn JJ.A.]

Counsel:

A. Niksich, for the appellant B.N.

S. Zeitz and J. Quigley, for the respondents S.H., Tarra Engineering Inc., and Tarra Engineering and Structural Consultants Inc.

Keywords: Contracts, Debtor-Creditor, Corporations, Oppression

facts:

The appellant appealed from judgments in two actions involving the collection of debts claimed by the respondents, S.H. and his company, Tarra Engineering Inc. (“TEI”).

In the first action, Heidari v. Naghshbandi, the trial judge ordered the appellant to pay Mr. Heidari $173,544 plus interest and costs. In the second action, Tarra Engineering Inc. v. Naghshbandi, the trial judge ordered the appellant to pay TEI $105,810 plus interests and costs and dismissed the appellant’s counterclaim against S.H., TEI, and Tarra Engineering and Structural Consultants Inc., another company established by S.H.

issues:

(1) Whether the trial judge decided the actions against the appellant on a new theory of liability?

(2) Whether the trial judge failed to provide adequate reasons for the appellant’s liability for the debts arising from the joint investments?

(3) Whether the trial judge failed to apply a credit of $149,027 against the damages awarded to S.H.?

(4) Whether the trial judge misstated the test for an oppression action?

(5) Whether the trial judge erred in relying on the testimony of Mr. Z., TEI’s bookkeeper, to prove that the appellant had signed away his single share in 2006?

holding:

Appeal dismissed.

reasoning:

(1) No.

S.H. and TEI claimed repayment of money lent to the appellant. The appellant denied that any loans were advanced to him.

The trial judge found that B.N. arrived in Canada with few or no resources and relied on loans or capital invested by others to support himself. The trial judge did not accept the appellant’s evidence that loans had not been made by S.H. and accepted S.H.’s evidence to the contrary. He properly characterized credibility as the central issue at trial. Indeed, the parties agreed that the litigation turned on credibility. Although the trial judge had reservations regarding certain aspects of S.H.’s testimony, he found him to be a generally honest man. In contrast, he found the appellant to be particularly mendacious.

While some of the funds had been advanced to the appellant for the purposes of a joint investment, they were nonetheless loans by S.H. that were to be repaid by the appellant. The basis for the trial judge’s determination was not a new theory of liability. The Court saw no error in the trial judge’s treatment of this issue.

(2) No.

The trial judge gave reasons for decision that were 52 pages in length that were then supplemented by additional reasons following receipt of further submissions. He explained that the funds were advanced so that the appellant could invest in real estate and there were cheques and emails that supported his finding. He had to determine in part whether the payments were made to the appellant for his sole benefit, for S.H.’s sole benefit, or for their joint benefit. He explained why he decided that half was for the appellant and half for S.H.. His reasons, though not perfect, justified and explained the result and allowed for appellate review.

(3) No.

There was no basis for this complaint. S.H. stated in his Reply to a Demand for Particulars that the credit had already been deducted from the amount he was claiming. Although the appellant amended his Statement of Defence and Counterclaim following receipt of the Reply to the Demand for Particulars, he never raised this issue. Understandably therefore, the trial judge did not apply any further credit.

(4) No.

The trial judge commenced by addressing whether the appellant had status to claim oppression. The appellant had argued that his entitlement to relief from oppression was based on being a shareholder of TEI when Tarra Engineering and Structural Consultants Inc. was incorporated in 2006 to carry on TEI’s business activities but the trial judge rejected that contention. Having done so, it was unnecessary to conduct any further analysis into entitlement to an oppression remedy and the applicable test.

(5) No.

The trial judge rejected the appellant’s contention that he had not relinquished his share in 2006 in part because he believed S.H. and disbelieved the appellant. His disbelief was based on an extensive examination of the appellant’s lack of credibility and also the evidence of B.L., an expert document examiner who positively identified the appellant’s signature on the share transfer document. In addition, in 2009, when writing to the Canada Revenue Agency, the appellant stated that he remembered signing documents for the purpose of a TEI share transfer to S.H. in 2006. Moreover, as the trial judge found, there was no evidence that the appellant ever requested any shareholder meetings after October 2006. Even though the trial judge considered Mr. Z to be unreliable, it was open to the trial judge to accept his evidence that he was present when the appellant signed the share transfer in the face of the strong corroboration offered by all of the other evidence.


Devi Financial Inc. v. Everwood Place Ltd.,2022 ONCA 104

[Tulloch, Pardu and Harvison Young JJ.A.]

Counsel:

R. R. Refcio and W.T.J. Chapman, for the appellants

D. K. Reason, for the respondent

Keywords: Contracts, Debtor-Creditors, Mortgages, Guarantees, Civil Procedure, Summary Judgment, Personal Property Security Act, R.S.O. 1990, c. P. 10, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, Rules of Civil Procedure, Rule 20, Hryniak v. Mauldin, 2014 SCC 7, Arora v. Whirlpool Canada LP, 2013 ONCA 657

facts:

The appellant, T. B., appeals from the summary judgment granted in favour of the respondent Devi Financial Inc. (“Devi”). The motion judge concluded that there was no genuine issue requiring a trial on the question of whether the appellant had personally guaranteed the mortgage debt loaned by Devi to the corporate appellants.

issues:

(1) Did the motion judge err in granting summary judgment without resorting to the fact-finding powers set out in Rule 20 of the Rules of Civil Procedure in relation to T.B.’s position that he was signing the guarantee as agent for the corporations and not on his own behalf?

(2) Did the motion judge err in finding that the amount due to the respondent was $3,214,254.15 inclusive of interest?

(3) Did the motion judge err in rejecting the argument that the respondent failed to provide adequate notice and that power of sale was therefore not available to it?

holding:

Appeal dismissed.

reasoning:

(1) No.

The motion judge used the correct test governing the availability of summary judgment articulated in Hryniak v. Mauldin, 2014 SCC 7. The task facing the motion judge was the construction of the contractual documentation before him, including the loan agreements and the guarantee. Any objective interpretation of these documents would give rise to the conclusion that T.B. signed as personal guarantor.

(2) No.

The question was a simple question of contractual interpretation. There was no ambiguity. On review of the respective commitment letters given in 2018 and then in 2019, it was clear that the two “bonuses” were to be triggered by different circumstances.

(3) No.

The appellants had been in default of payment for more than 15 days when the Notice of Sale was sent to it on December 11, 2019. The Notice set out the amount outstanding and gave a deadline to pay the amount set out which was more than 35 days. The motion judge made no error in his interpretation of the standard clause, noting that it does not require 15 days’ notice but simply requires that, if the chargor is in default of making a payment for at least 15 days, 35 days’ notice can be given until the chargee will enter on and lease or sell the land.


SHORT CIVIL DECISIONS

Calleja v. Ahmadi, 2022 ONCA 106

[Huscroft, Sossin and Favreau JJ.A.]

Counsel:

M. Wine and J. Beiles, for the appellant

Varoujan Arman and Philip Yang, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Summary Judgement, Procedural and Natural Justice, Adequacy of Reasons

Tharani Holdings Inc. v. Metropolitan Toronto Condominium Corporation No. 812, 2022 ONCA 93

[MacPherson, van Rensburg and Roberts JJ.A.]

Counsel:

P. Chand, for the appellant

K. Kisiel, for the respondents

Keywords: Real Property, Condominiums, Directors, Oppression, Civil Procedure, Procedural and Natural Justice, Reasonable Apprehension of Bias, Condominium Act, 1998, S.O. 1998, c. 19, O. Reg. 48/01

Susin Estate v. TD Waterhouse Discount Brokerage (TD Waterhouse Canada Inc.), 2022 ONCA 101

[MacPherson, van Rensburg and Roberts JJ.A.]

Counsel:

A. Zaya, acting as agent for the appellant

S. Gfeller, for the respondent

Keywords: Contracts, Debtor-Creditor, Margin Trading Accounts, Civil Procedure, Summary Judgment, Questrade Inc. v. Gu, 2011 ONSC 4106, Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907

Asghar v. Toronto (City), 2022 ONCA 98

[Pepall, Brown and Thorburn JJ.A.]

Counsel:

S. A., acting in person

J. Thoburn, for the respondents

Keywords: Civil Procedure, Striking Pleadings, Abuse of Process, Frivolous, Vexatious, 2.1.01 Rules of Civil Procedure, Rule 2.1.01


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with over two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with over two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, partnership, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles complex estates and matrimonial litigation involving disputes over property and businesses, as well as professional discipline and professional negligence matters for various types of professionals. In addition, John represents amateur sports organizations in contentious matters, and also advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.