Aaron A. Blumenfeld

Pine Glen Thorold Inc. appealed the dismissal of its action against Rolling Meadows Land Development Corporation and Glen Gordon.

The motion judge had struck the claim on the basis that it did not disclose reasonable causes of action.

The Court of Appeal dismissed the appeal, but on different grounds.

Rather than analyzing each individual cause of action, the court found that the claim as a whole constituted an abuse of process.

Pine Glen sought to relitigate issues that were already decided or could have been raised in prior applications between the parties, and its claim was primarily based on the respondents' conduct during the previous litigation.

The court held that absent exceptional circumstances (such as viable claims for malicious prosecution or abuse of process), parties should not be permitted to pursue civil actions based on the conduct of prior litigation.

The Court of Appeal for Ontario dismissed the appeal in this commercial landlord-tenant dispute.

The trial judge found that the tenant, 2682543 Ontario Inc., repudiated the lease for restaurant premises and that the landlord, 720443 Ontario Inc., properly accepted the repudiation and terminated the lease.

The tenant and its guarantor, Shahab Rashid Savojbolaghi, were held liable for damages.

The Court rejected the tenant’s arguments regarding joint occupancy and the timing of possession, upholding the trial judge’s interpretation of the lease and the finding of repudiation.

The plaintiff landlord sued the defendant tenant and its guarantor for breach of a commercial lease.

The tenant failed to take possession and begin fixturing the premises, arguing the landlord had not completed its work to satisfaction.

The court interpreted the lease, finding that the tenant was obliged to take possession when the landlord's work was "sufficiently complete to permit fixturing," not fully complete.

The tenant's failure to take possession constituted repudiation of the lease.

The court awarded the landlord damages, holding both the tenant and the guarantor liable.

The appellant, Rolling Meadows Land Development Corporation, appealed judgments dismissing its motion to convert applications to an action, finding a purchase and sale agreement binding, and finding no breach of contract by the respondent, Pine Glen Thorold Inc. The appeal raised arguments concerning the refusal to convert applications, a claim of unilateral mistake in signing the contract, and the quantification of renovation costs.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's decisions.

The court affirmed that the application judge was entitled to adjudicate the issues on the record, that no unilateral mistake was established given the appellant's sophistication and the contract's clarity, and that the renovation quantification was properly determined.

The Blankenstein and Fialkov families, joint owners of a 168-unit apartment building through corporate entities, sought to separate their interests due to an irreconcilable breakdown in their relationship, exacerbated by an internal dispute within the Fialkov family.

The Blankensteins applied for a winding-up of Godstone Limited and a court-ordered buy-out of the Fialkovs' 50% interest at fair market value.

The primary contentious issue was the valuation date for the buy-out, with the Blankensteins seeking a current date (January 2023 or later) to reflect a market downturn, and the Fialkovs advocating for March 2022 (the market peak).

The court found that a buy-out was appropriate under s. 207 of the OBCA and determined the fairest valuation date to be November 3, 2022, the date of the application hearing, balancing the parties' expectations and the market fluctuations.

The court also addressed the applicants' alternative request for a public sale, finding it unnecessary given the buy-out order.

Following a complex estates trial involving claims and counterclaims among family members, the court determined the costs of the proceedings.

Finding no clear winner or loser, the court applied the modern approach to estates costs and ordered that the partial indemnity costs of the respondent sons and the estate of a deceased son be paid out of the father's estate, due to the public policy considerations engaged by the father's pre-death actions.

The court also ordered the estate to pay the reasonable preparation and attendance costs of non-party professional witnesses.

The Estate Trustee During Litigation brought a motion to quash an appeal in a matter involving the estate of Elias Gefen.

The appeal involved multiple parties including the estate trustee, family members, and various institutions.

The motion to quash was granted on March 14, 2019.

The court awarded costs of the motion and appeal to the Estate Trustee During Litigation in the amount of $30,000 inclusive of disbursements and applicable taxes, payable jointly by the appellant and respondents to the motion.

The Estate Trustee During Litigation (ETDL) moved to quash an appeal on the grounds that it should have been brought to the Divisional Court under section 28 of the Estates Act.

The respondents argued that the ETDL's appointment was made under Rule 75 of the Rules of Civil Procedure or the court's inherent jurisdiction, not the Estates Act.

The Court of Appeal held that the appointment order was made pursuant to the Estates Act and that the allegation of a constructive trust "touches on" the validity of the will or grant of administration within the meaning of section 28.

The appeal was quashed and the matter was directed to the Divisional Court.

This endorsement addresses costs arising from a motion where an estate trustee during litigation was appointed.

The court rejected the suggestion to defer costs to the trial judge, affirming that costs of a motion should be dealt with by the motions judge.

Harry Gefen and the Estate of Yehuda Gefen sought costs on a substantial indemnity basis, which was declined as the court found no grounds for the higher scale based on the defence of the motion or unproven allegations.

The court also rejected the argument that costs should be denied due to refusal of dockets, finding sufficient particulars were provided.

Harry Gefen was awarded $45,000 plus HST in legal fees, plus disbursements including $35,765 for Professor Drummond's assistance and $14,725.55 for other disbursements.

The Estate of Yehuda Gefen was awarded $45,000 plus HST in legal fees and $738.12 in disbursements.

Henia Gefen and Harvey Gefen were ordered to pay these amounts within 30 days.

The applicants, Dr. Bernstein's corporations, moved for judgment against Norma Walton, Ronauld Walton, and their companies for $66.9 million, alleging civil fraud and fraudulent misrepresentation, and sought a declaration that the debt would survive bankruptcy.

The Waltons brought a counter-application for damages and a cross-motion for a trial on the fraud issue.

Christine DeJong Medicine Professional Corporation and Gideon and Irene Levytam also sought relief regarding their investments.

The court found the Waltons liable for civil fraud and fraudulent misrepresentation, awarding the applicants $66.9 million plus interest, and declared the debt non-dischargeable in bankruptcy under s. 178(1)(d) and (e) of the BIA.

The Waltons' counter-application was struck as frivolous and vexatious.

The applicants' claims against Schedule C Companies for knowing assistance and knowing receipt were dismissed.

DeJong was granted constructive trusts over specific Schedule C properties for their investments due to the Waltons' breach of fiduciary duties.

This costs endorsement follows a judgment declaring Nuspor Investments Partnership as the owner of Toronto Maple Leafs season tickets held by the Estate of Chaim Neuberger.

Nuspor sought substantial indemnity costs, citing settlement offers.

The court awarded partial indemnity costs, finding that the Estate was entitled to have the ownership issue determined and the Estate Trustee acted reasonably in not accepting the offers.

The court further ruled that costs should be paid by the Estate, not personally by one of the Estate Trustees, as the underlying issue was attributable to the testator's lack of clarity regarding asset ownership.

Following extensive trial reasons in complex bankruptcy and fraud proceedings, the court issued a second case conference memorandum addressing outstanding procedural and remedial issues.

The court directed that issues concerning damages recoverable by a creditor, tracing relief, and costs orders against certain defendants be scheduled before the associate chief justice who presided over related contempt proceedings.

The memorandum also clarified that a previously ordered constructive trust over the bankrupt’s property should be incorporated into the final order without further submissions.

The court established a timetable for written submissions on post‑judgment interest relating to an earlier judgment and on the terms of a Mareva injunction in aid of execution.

The decision functioned primarily as case management to finalize remaining issues in the litigation.

Following dismissal of an appeal from a master's order requiring a corporate plaintiff to post security for costs, the court addressed a dispute concerning responsibility for the resulting costs award.

The individual plaintiff argued that only the corporate plaintiff should be liable because the appeal formally related to the corporate entity.

The court found that both plaintiffs had advanced the appeal jointly, shared interests in the litigation, and were represented together without distinction in the materials.

Given the joint strategy and unified presentation of claims, the costs order properly applied to both plaintiffs.

The court confirmed that both plaintiffs were jointly responsible for paying the $30,000 costs award to the defendants.

The defendants moved for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, arguing that one plaintiff was a nominal party and that the corporate plaintiff lacked sufficient assets to satisfy a potential costs award.

The court held that the individual plaintiff was not a nominal plaintiff because he was personally a party to the alleged contract and asserted personal claims in the pleadings.

However, the corporate plaintiff failed to provide reliable financial disclosure demonstrating sufficient assets and had not produced basic financial records or tax filings.

Applying the established two‑step test for security for costs, the court found good reason to believe the corporation could not satisfy a costs order and exercised its discretion to order staged security.

Security of $120,000 for each set of defendants was ordered, payable in three installments tied to the litigation timetable.

The plaintiffs sought to enforce a California judgment of approximately (US)$17 million against the defendant Jay Chiang and sought a declaration that the debt survives his bankruptcy discharge under s. 178(1)(d) of the BIA.

The plaintiffs also brought a second action alleging that Jay Chiang and numerous family members engaged in fraudulent conveyances and a conspiracy to hide assets and frustrate collection efforts.

The court enforced the California judgment in the amount of (US)$9,678,832 but declined to declare that the debt survives bankruptcy, finding no fiduciary duty was owed to the plaintiffs.

The court found Jay Chiang liable for fraudulent conveyances and conspiracy, but dismissed the claims against most of the other family members, finding they were unwitting conduits used by Jay Chiang.

The defendant brought a motion for summary judgment seeking dismissal of a breach of contract action on the basis that the claim was statute‑barred under the Limitations Act, 2002.

The dispute centred on discoverability and when a reasonable person in the plaintiff’s circumstances ought to have known that a loss had occurred and that a proceeding would be an appropriate remedy.

The court applied the Court of Appeal’s guidance in Combined Air Mechanical Services Inc. v Flesch concerning the “full appreciation” test for summary judgment under Rule 20.04(2.1) of the Rules of Civil Procedure.

Given the voluminous record and conflicting evidence regarding the parties’ knowledge and accounting expertise, the court held that multiple credibility findings would be required.

The interest of justice therefore required that the matter proceed to trial.