Legal Blog: Civil Litigation

Oct
05
2017

Specific Performance

Xiong Zhang v. Meng Zhang 2017 Ont SCJ (MC)

Case of a convoluted real estate transaction that went bad. Purchaser obtained and registered a certificate of pending litigation without notice. The vendor and mortgagee moved to set it aside. The Master held that the property was unique (a key finding for purposes of an action for specific performance) because, due to the quickly rising prices at the time and the tying up of his $40,000 deposit, the purchaser had no equivalent property to be found at the agreed upon purchase price in the neighbourhood he had selected. The Master indicated that the calculation of damages at trial, years down the road, would be highly speculative and inadequate compared to an order for specific performance. This decision expands the definition of “unique”, which previously referenced only the property itself.

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Sep
28
2017

Time of Essence

Deangelis v. Weldan Properties Inc. 2017 Ont SCJ

Closing set for August 23. Time was of the essence in the agreement. On the date of closing, purchaser’s lawyer contacted the developer vendor’s lawyer indicating that, although the mortgage was approved on August 22, it could not be advanced in time for the closing; the lawyer requested a 3-day extension. Later that day, the vendor’s lawyer responded noting that there was an anticipatory breach, terminating the agreement, and claiming forfeiture of the $20,000 deposit. In effect, the purchaser repudiated the agreement and the vendor accepted that repudiation or before the closing date to terminate the agreement. The purchaser moved for specific performance and the vendor moved to obtain the deposit. On a summary judgment motion, the judge held for the vendor. Good faith was not relevant and the inability of the purchaser to close the transaction had nothing to do with the vendor. Parties must be allowed to insist on strict compliance with the terms of an agreement; otherwise there is uncertainty.

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Sep
28
2017

Costs Thrown Away

Furr v. Duhamel 2017 Ont SCJ

The judge granted an adjournment of an application hearing, an adjournment made necessary because of the illness of the applicant’s lawyer. The judge awarded costs thrown away of $23,500 to the respondents, noting that costs thrown away are still awarded against the party applying for an adjournment, notwithstanding lack of fault. It is only when the court proceeding is adjourned because of the court’s scheduling problems that no costs are awarded.

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Sep
28
2017

Equitable Execution or Mortgage

Bank of Montreal v. Georgakopoulos 2017 Ont SCJ

Bank receive payment on a line of credit and discharged its mortgage. Unfortunately, the bank forgot to close the line of credit and the defendants ran up an additional $295,000 in debt. The bank brought an action for an equitable mortgage on the defendants’ new property and repayment of the loan. The bank then obtained a certificate of pending litigation without notice. The defendants, acting for themselves, brought a motion to set aside the certificate and dismiss the action. The judge noted that the self-represented defendants’ motion materials addressed various principles of constitutional and international law, having nothing to do with the plaintiff’s claim, and dismissed the motion.

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Sep
28
2017

Examinations of Non-Resident Parties – Cost

Ali v. Gibbons 2017 Ont SCJ

Accident occurred in Ontario when plaintiff resided in Ontario. Plaintiff now resides in Saskatchewan. Rule 34.07 discusses what is to take place when a non-resident is examined for discovery. Since there was no question of the plaintiff being medically or otherwise incapable of travelling to Toronto and since the lawyers for the parties wanted the examination to take place in Toronto, the plaintiff was given 2 choices: be discovered in Saskatchewan by way of a videoconference, the cost of which would be split equally, or attend in Toronto with travel, meals, and accommodations to be shared equally.

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Sep
01
2017

Punitive Damages

Goldentuler Estate v. Crosbie 2017 Ont CA

A defendant paralegal surreptitiously removed 120 files from the offices of a lawyer and transferred them to another lawyer. The trial judge found that the defendants were liable for damages arising from breaches of duty of loyalty and good faith, the failure to avoid conflicts of interest, and self-interest during the course of their employment. The trial judge did not award punitive damages. The Court of Appeal awarded punitive damages in the amount of $80,000 because of the pre-litigation conduct of the defendants, which they found to be outrageous and high-handed. Compensatory damages were not sufficient to achieve the goals of deterrence and denunciation.

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Sep
01
2017

Summary Judgment Motion

Hammond v. Peabody 2017 Ont SCJ

Motions can be brought to set the ground rules for a motion for summary judgment. These motions can be used to obtain documents and set timetables for cross-examinations. However, the fact that there will be credibility issues and vastly divergent points of view are not reasons, in themselves, to deprive the moving party of its right to bring a summary judgment motion. That would be pre-judging the motion without knowing whether there will actually be credibility issues and divergent points of view. Similarly, the preliminary motion judge cannot make an order dealing with whether oral evidence will ultimately be given on any particular point; that is a decision for the summary judgment motion judge to make.

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Aug
14
2017

Tender

Graillen Holdings Inc. v. Orangeville (Town) 2017 Ont CA

A disappointed tenderer is not awarded damages as of right merely because an owner accepts a non-compliant tender. The tenderer must still demonstrate that it would have been awarded the contract and lost profit because of the non-award. In this case, the trial judge decided that had the owner realised that the tender it accepted was non-compliant, it would not have accepted the bid of the disappointed tenderer (which used a process that the Town preferred not to use); rather, it would have re-tendered the project and the disappointed tenderer would still have lost. The Court of Appeal dismissed the appeal of the disappointed tenderer.

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