Aaron A. Blumenfeld

The court heard competing motions by a court-appointed receiver and a third-party purchaser (BJC) regarding the sale of a commercial property.

The property was subject to a mortgage that fell into default, prompting the mortgagee to exercise its statutory power of sale and enter into an agreement with BJC.

Subsequently, a receiver was appointed over the mortgagor corporation in an oppression action and sought to sell the same property en bloc with another property to a different purchaser.

The court held that the receivership order under the Business Corporations Act and Courts of Justice Act did not suspend or supersede the mortgagee's pre-existing statutory power of sale under the Mortgages Act.

The receiver's motion to approve its sale was dismissed, and the mortgagee was permitted to complete its sale to BJC.

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 applicant, a mortgagee under a matured and defaulted Vendor Take Back mortgage, applied for the appointment of a court-appointed receiver over a commercial property in Ottawa.

The respondent mortgagor opposed the application, disputing the validity and amount of the debt in separate ongoing proceedings in Toronto.

The court dismissed the application, finding no evidence of insolvency to engage the Bankruptcy and Insolvency Act and no underlying proceeding to support an interlocutory receivership under the Courts of Justice Act.

Additionally, the court noted that receivership is an extraordinary remedy, the mortgage lacked a contractual receivership clause, and there was sufficient equity in the property to protect the debt.

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 defendants brought a motion to strike the plaintiff's amended statement of claim under Rule 21.01(1)(b) for failing to disclose a reasonable cause of action.

The plaintiff, a home builder, had sued the defendant land developer and its principal for breach of contract, various torts, and oppression arising from a completed agreement of purchase and sale.

The court systematically analyzed all nine causes of action pleaded by the plaintiff and found that each failed to plead the necessary material facts or relied on non-existent legal duties.

The court struck all claims without leave to amend and dismissed the action.

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.

The applicant brought a motion seeking declarations that his 99-year-old mother was incapable of managing property and instructing counsel, and seeking the appointment of a litigation guardian and guardian of property.

The court reviewed competing capacity assessments and preferred the assessment finding incapacity, noting the mother's confusion and inability to understand the litigation.

The court appointed a neutral third-party lawyer as litigation guardian and guardian of property, passing over the mother's other son due to extreme family conflict and a prior finding of unconscionable procurement.

The court also ordered the mother's counsel to pay $3,500 in costs personally for taking unreasonable positions and failing to address his client's lack of capacity.

The applicant brought a motion seeking an order for his 99-year-old mother to undergo a capacity assessment pursuant to s. 105 of the Courts of Justice Act, and for the continuation of the Estate Trustee During Litigation (ETDL).

The applicant raised concerns about his mother's capacity to act as estate trustee following her examination out of court, where she provided non-responsive answers and demonstrated a lack of understanding of the estate's multi-million dollar debts.

The court found that the mother's capacity was in issue and ordered the assessment, balancing her privacy rights against the need to protect the vulnerable estate.

The court also granted a mandatory injunction to continue the ETDL's mandate to maintain the status quo pending the capacity assessment and the main application.

The moving party brought a motion for leave to appeal an order dated January 19, 2022.

The Divisional Court dismissed the motion and awarded costs to the responding party in the fixed amount of $3,137.78.

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 applicant's estate sought costs for a successful dependent's support motion.

The court awarded substantial indemnity costs of $84,456.11 against the respondent estate trustee and the estate jointly and severally, citing the respondent's vituperative opposition and the applicant's unaccepted offer to settle.

A supporting respondent's request for costs was dismissed as there was no lis between him and the opposing respondent.

The respondent brought a motion to stay an application commenced by the applicant to set aside a Notice to Arbitrate.

The core issue was whether the parties had reached a binding settlement agreement regarding a family business dispute.

The court found that the applicant's counsel only had authority to negotiate comprehensive minutes of settlement, not to bind the applicant to the material terms or 'deal points' proposed by the respondent.

As there was no mutual intention to agree, no binding settlement was reached.

The motion for a stay and the application to appoint an arbitrator were dismissed, and the application to set aside the Notice to Arbitrate was granted.

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 complex appeal arises from a multi-million dollar commercial real estate fraud perpetrated by Norma and Ronauld Walton over several years.

The appellants (DBDC Applicants) and respondents (Schedule C investors) were all victims of the fraud.

The central issue on appeal concerns the priority of claims against proceeds from the sale of properties acquired as part of the fraudulent scheme.

The appellants sought damages against the Listed Schedule C Companies on the basis of knowing assistance in breach of fiduciary duty, while the respondent DeJong sought constructive trusts over certain properties.

The majority allowed the appeal in part, finding the Listed Schedule C Companies jointly and severally liable for $22.6 million in damages for knowing assistance, but set aside the constructive trust awards to DeJong.

The dissent disagreed with the knowing assistance finding, arguing the net transfer analysis was insufficient to establish participation by the Listed Schedule C Companies in the breach of fiduciary duty owed to the appellants.

During a case management conference in a complex multi-party family and corporate dispute, a party objected to an opposing party's recent retainer of new counsel on the eve of scheduled examinations, alleging a historical conflict of interest.

To avoid derailing the long-established litigation schedule with a formal motion to remove counsel, the case management judge invoked Rule 50.13(6) of the Rules of Civil Procedure.

Citing the culture shift mandated by Hryniak v. Mauldin, the judge summarily ordered that the opposing party could not be represented by the newly retained counsel at this time, finding the retainer to be an act of tactical mischief designed to delay proceedings.

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 plaintiff landlord and defendant tenant brought cross-motions for summary judgment in an action for breach of a commercial lease agreement.

The dispute centered on whether a binding lease existed for the expansion of the tenant's premises and whether the tenant breached duties of good faith and honest performance by secretly securing an alternative location while delaying the provision of design information.

The court dismissed both motions, finding that the case presented a plethora of genuine issues for trial, including serious credibility issues, which could not be fairly and justly resolved using the summary judgment procedure.