Notable Cases

Shane Coblin and Milaad Hashmi successfully defend claims of fraudulent misrepresentation and unjust enrichment made against our clients in a dispute over a failed assignment of a pre-sale condominium agreement in Vancouver. They also obtained an order that the Plaintiff had forfeited to our client the $340,188 she had paid towards the assignment and an order that the Plaintiff pay special costs.

The dispute originated from a 2017 pre-sale condominium interest acquired by the Defendant, who later offered to assign that interest to the Plaintiff. The Plaintiff made payments totaling approximately $340,188, representing the first two deposits required under the pre-sale agreement. The agreement collapsed when the Plaintiff decided not to proceed with the acquisition and demanded a refund. Our client refused and treated the Plaintiff’s words and conduct as a repudiation of the agreement entitling her to keep the amounts already paid.

Shane Coblin and Milaad Hashmi successfully argued before the Court of Appeal that the act of filing a lien that the lien claimant knew or ought to have know was inflated, constitutes an abuse of process entitling an owner to damages.

In 601 Main Partnership v. Centura Building Systems (2013) Ltd., 2024 BCCA 76, the British Columbia Court of Appeal addressed the role of the tort of abuse of process in combatting inflated construction liens. The common law has restricted the application of the tort of abuse of process to circumstances where the abusive act complained of is separate from the litigation process itself. The logic being, that abusive litigation conduct is dealt with by an award of costs within the proceeding and ought not to give rise to a separate cause of action—so as to avoid one failed action begetting another action, which may beget another action, and on and on.

In Yegre EB Ltd. v. Seguin, 2024 BCCA 365, Shane Coblin and Milaad Hashmi were successful in having the Court of Appeal overturn a Chambers Judge’s finding that a forum selection clause in a property purchase agreement conferred exclusive jurisdiction upon the courts of the province of Alberta. This case provides guidance on the test applicable when interpreting a forum selection clause, and it clarifies that the failure to properly interpret or apply case law constitutes an extricable error of law in the contractual interpretation process.

The case involved a 2015 purchase agreement in which the appellant purchased five industrial properties in British Columbia and Ontario from the respondents. In 2022, the appellant commenced proceedings in the BC Supreme Court alleging fraudulent misrepresentation, breach of contract, and negligence in connection with the purchase of the properties. The respondents filed a jurisdictional response and then brough an application to stay the claim on the basis of the forum selection clause.

Our client was successful in having a Mareva injunction discharged. Under the Injunction, our client’s worldwide assets, up to $29,280,000, had been frozen.

The British Columbia Supreme Court set aside the Injunction due to material non-disclosure by the plaintiff in obtaining the original Order, and further held that the Injunction must be denied on a de novo reconsideration. The Court ordered special costs in favour of our client due to the plaintiff’s reprehensible conduct, as well as an assessment of damages claimed by our client as a result of the improperly obtained Injunction.

Our client is the developer of a large luxury mixed-use building located in Vancouver. For the past number of years it has been a defendant in a complex multi-party construction dispute, part of which has been proceeding as a class action. The client had a wrap-up liability insurance policy in place for the development that required the insurer to defend any actions alleging damage to property. The insurer denied coverage relying on an exclusion referred to as the “your work” exclusion. Shane and Devin successfully argued that the insurer had not met its burden to demonstrate to the court that this exclusion clearly applied to oust coverage. Justice Millman found that the duty to defend had been triggered and ordered the insurer to reimburse our client for all costs incurred to date to defend those actions and to prospectively cover all defence costs going forward as they are incurred.

Please see the reasons for judgment in KBK No. 11 Ventures Ltd. v. XL Insurance Company Ltd., 2022 BCSC 1652

The acquisitions were undertaken by way of two statutory plans of arrangement pursuant to section 288 of the British Columbia Business Corporations Act and section 192 of the Canada Business Corporations Act.

Shane represented Golden Valley and Abitibi in the court approval process, first obtaining the initial order approving the calling of the necessary shareholders meeting, setting the procedure for approval of the transaction, and providing for dissent rights.

Shane Coblin and Devin Lucas successful in having court declare an attempt to certify a class action, after years of delay, an abuse of the court process.

After approximately six years of delay, the Plaintiff in this putative class action sought to significantly amend its claim to expand the class definition, add new claims of negligence claiming damages for pure economic loss resulting from dangerous defects, and to add a number of new parties. Many of the claims were duplicative of other actions commenced at the instruction of the proposed representative plaintiff, and therefore the court found the amendments to be an abuse of process.

The British Columbia Court of Appeal agreed with the judge at trial that a $28.8 million contract of purchase and sale should not be enforced, being tainted by the illegality of the purchasers’ fraudulent conduct. While the trial judge found numerous instances of illegal conduct each rendering the contract unenforceable, the Court of Appeal considered it unnecessary to look beyond the conclusion that the purchasers had designed and used the contract and related lease to falsely inflate rent for financing purposes.

Cadillac Fairview Limited and its property, Pacific Centre mall, were unsuccessful in their efforts to stop the proposed redevelopment of 720 Beatty St., site of the Creative Energy steam heat plant which serves the energy needs of over 200 commercial and residential buildings throughout downtown Vancouver. Our clients, Creative Energy and Westbank Projects Corp., are teaming up to build a state-of-the-art office tower and entertainment facilities bridging Vancouver’s Yaletown district with BC Place Stadium.

Our client, Business Development Bank of Canada, had obtained judgment against the corporate debtors and an individual guarantor. After an examination of the guarantor to obtain information to satisfy these obligations, Lana Li successfully invoked a rarely-used tool called “equitable receivership” to gain access to a $6.2 million property.

Our client successfully resisted efforts by her deceased spouse’s brother to challenge their common law relationship and to challenge her right to administer her spouse’s estate. The case required the B.C. Supreme Court to consider time limitations, evidence to prove a common law relationship and whether notice of court applications are required in this case.

After a 78-day trial, the Supreme Court of British Columbia allowed our client to withdraw from a $28,800,000 contract for the sale of a large redevelopment site, due to the intended purchaser’s use of the contract for illegal purposes. This allowed our client to reap a nearly $50,000,000 increase in value.

In two decisions, the British Columbia Supreme Court refused multiple efforts by a residents’ association to halt a multibuilding, 258-unit project now called the Independent at Main. The project, developed by Kornfeld clients Rize Alliance (Kingsway) Properties Ltd. and Rize-Ayalaland Limited Partnership, has since emerged as the heart of redevelopment of the Mount Pleasant neighbourhood along the Broadway corridor, only minutes from downtown.