Aaron Hershtal

The plaintiffs defaulted on a mortgage, and the defendant mortgagee obtained default judgment, a writ of possession, and sold the property under power of sale.

The plaintiffs commenced a new action against the mortgagee, its lawyer, and a process server, seeking a certificate of pending litigation and damages.

The defendants moved to strike the claim as an abuse of process.

The court granted the motion, finding the claim was a collateral attack on previous court orders and an attempt to relitigate finally determined issues.

The claim against the opposing lawyer was struck as disclosing no reasonable cause of action.

The plaintiffs' cross-motion for leave to amend was dismissed as the proposed claim contained radical defects.

The self-represented plaintiff brought a motion under Rule 59.06 to vary, set aside, or suspend a previous costs order.

The plaintiff argued that the court failed to adjudicate material costs considerations and that fresh evidence warranted a redetermination.

The court dismissed the motion, finding no accidental slip or omission under Rule 59.06(1), and holding that the fresh evidence would not have changed the result and could have been obtained earlier under Rule 59.06(2)(a).

The court also declined to suspend the order, noting the plaintiff's unreasonable conduct and the prejudice to the defendants.

The plaintiffs brought a motion for leave to amend their statement of claim in a solicitor's negligence action to significantly increase their claim for damages based on a new expert report.

The defendants opposed the amendments, arguing the increase was frivolous and the apportionment of damages among multiple plaintiffs was improper.

The court granted leave for the quantum amendments, finding them legally tenable and within the existing factual matrix without causing non-compensable prejudice.

The proposed amendments regarding the apportionment of damages were adjourned to allow the parties further opportunity to resolve the issue.

The plaintiff law firm sued a former client for defamation, alleging he posted fake negative online reviews after failing to pay his legal fees.

At a case conference, the self-represented defendant sought various forms of relief, including leave to move to dismiss the claim, set aside a prior consent injunction order, and compel early production of evidence.

The court dismissed the requests, finding they constituted an improper collateral attack on the prior order and that the evidentiary requests should be addressed through the normal discovery process.

The appellants commenced a professional negligence action against their former legal counsel in March 2023.

The respondents successfully moved for summary judgment on the basis that the claim was statute-barred, as the appellants had threatened negligence proceedings in March 2019.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the appellants knew or ought to have known of the material facts supporting their claim more than two years before commencing the action.

This is an amended costs endorsement following a successful appeal by the respondents.

The Court of Appeal for Ontario awarded costs of the appeal to the respondents Burns Hubley LLP, Paul Gribilas, and J+W Foods Inc., inclusive of disbursements and interest, payable by the appellants.

This endorsement from a case conference addresses delays in the discovery process across several consolidated actions.

The primary issue identified was Mr. Behzad Pilehvar's failure to produce all relevant documents, including approximately 11,000 emails and text messages.

The court ordered Mr. Pilehvar to deliver a further and better affidavit of documents by December 19, 2023.

The endorsement also noted Mr. Pilehvar's counsel's contemplation of bringing a motion to remove himself from the record, which would impact scheduled discoveries and a planned mediation session in early spring 2024.

The court provided directions for scheduling future motions and case conferences.

The appellants, William Fehr Sr. and Dorothey Fehr, appealed a lower court order that permanently stayed their professional negligence action against Paul Gribilas (lawyer) and Burns Hubley LLP (accounting firm) based on a "no-claims-over" provision in a mutual release.

The release settled previous disputes, including the Fehrs' purported interest in J+W Foods Inc. The professional negligence action alleged that Gribilas and Burns Hubley LLP failed to protect the Fehrs' shareholdings.

The motions judge found the action to be an abuse of process because it contravened the no-claims-over clause, which prevented claims against parties who might seek contribution from the releasees (J+W Foods Inc., William Fehr Jr., Steven Trougakos).

The Court of Appeal dismissed the Fehrs' appeal, affirming that the motions judge had the inherent authority to stay the action as an abuse of process and that the defendants had a viable claim over, thereby triggering the no-claims-over provision.

The cross-appeal by Gribilas and Burns Hubley LLP was dismissed as moot.

The appellant, OZ Optics Ltd., appealed the dismissal of its action against two former general counsel, Diane Lesley Evans and Samuel Edgar Schwisberg, following a successful motion for summary judgment.

The action alleged breach of contract, breach of fiduciary duty, conspiracy, and negligent performance of service.

The Court of Appeal dismissed the appeal from the bench, upholding the motion judge's findings that the claims were amenable to summary judgment, that Evans's actions did not constitute a breach or cause loss, and that Schwisberg's obligations under a holdover clause were absolved by the appellant's actions.

Costs were awarded to the respondents.

The appellants, found in civil contempt for disobeying a court order regarding property use and trespassing, appealed their $1,000,000 fine.

They sought to introduce fresh evidence, alleging ineffective assistance of trial counsel.

The Court of Appeal dismissed the application for fresh evidence, finding it lacked due diligence and would not have affected the outcome.

The court upheld the sentencing judge's findings that the contempt was flagrant, protracted, deliberate, and profitable, and that the fine was fit, dismissing the appeal.

The appellant's property was sold under power of sale.

She initiated an action alleging conspiracy to defraud and moved to set aside the sale, claiming fraud and improvidence.

The motion judge dismissed all claims except for an accounting by the mortgagee.

The Court of Appeal dismissed the appeal, finding no direct or circumstantial evidence of fraud, and that the sale was not improvident, especially considering the appellant's history of default and delay.

A case conference was held to address multiple related actions.

On consent, the claims against Shahzad Siddiqui and Borden Ladner Gervais LLP were dismissed with prejudice and without costs.

The court directed counsel to confer regarding the potential release of individual defendants and established a timetable for scheduling upcoming dispositive motions.

A case conference was held to manage multiple related proceedings.

Counsel for the plaintiffs indicated a recommendation for the plaintiffs to agree to dismissals without costs in most cases, except potentially the claim against Grant Thornton LLP Canada, which requires leave to proceed.

The court directed that a new class action issued by one of the plaintiffs be case managed together with the existing matters.

Counsel were directed to advise on dismissals or agree on a timetable for dispositive motions by a specified date.

The moving party sought an extension of time to file a notice of motion for leave to appeal a Divisional Court decision that dismissed their action for delay.

Despite the brief delay in filing the motion for leave being due to counsel's inadvertence, the Court of Appeal dismissed the motion.

The court found the proposed appeal lacked merit and emphasized the moving party's long history of procedural misconduct, which caused significant prejudice to the responding parties, particularly due to the death of a critical witness whose evidence was never preserved.

The court concluded that the "justice of the case" demanded the dismissal of the motion to protect the integrity of the civil justice process and prevent an unfair adjudication on the merits.

A case conference was held to manage multiple related actions.

The court noted that Commercial List matters were being traversed to the regular Civil list.

Directions were given for the filing of outstanding pleadings, setting aside defaults by consent, and establishing a mutually convenient discovery schedule with a target completion date of December 31, 2022.

The court also provided instructions for scheduling anticipated motions, including a potential Mareva injunction and a motion to join the trials.

The appellant sought to set aside a Registrar's order dismissing her appeal for delay and to extend time to perfect the appeal.

The underlying appeal concerned a motion judge's decision to dismiss the appellant's action via reverse summary judgment, which sought to set aside a property transfer under power of sale due to alleged fraud and conspiracy.

The Court of Appeal granted the appellant's request, finding that despite some delay, she maintained an intention to appeal and had arguable grounds, particularly regarding the motion judge's assessment of "badges of fraud" in the context of a power of sale and the chargee's duties.

The court also clarified that a writ of possession requires a pre-existing order for possession, which the purchaser lacked.

A case conference was held regarding five related actions, three of which were on the Commercial List and two were regular civil matters.

Counsel agreed that the actions should be case managed together for efficiency.

The judge agreed to act as the case management judge for all five cases, which will require transferring the Commercial List actions to regular civil actions.

The defendants, former legal counsel for the plaintiffs, brought a motion for summary judgment to dismiss the plaintiffs' solicitor negligence action on the basis that it was statute-barred.

The plaintiffs alleged the defendants were negligent in failing to argue the unconscionability and public policy branches of the Tercon test regarding an exclusion clause in the underlying trial against Toyota.

The court dismissed the summary judgment motion, finding that the limitation period did not begin to run until the Supreme Court of Canada denied leave to appeal in the underlying action, as the plaintiffs reasonably relied on the defendants' advice to pursue appeals and a legal proceeding was not an 'appropriate means' to seek a remedy until the appeal process was exhausted.

This appeal concerned the enforceability of two significant loans, secured by promissory notes, against the estate of Dennis Chedli and his wife, Anna Chedli.

The motion judge had dismissed the claims, finding the notes either repaid, statute-barred, or void due to material alteration without assent.

The Court of Appeal partially allowed the appeal.

It found that the first promissory note, signed by both Dennis and Anna Chedli, was not repaid as a new loan, and that there was sufficient corroborative evidence (payments and discussions) that Dennis Chedli assented to its conversion to a demand note, making it enforceable against his estate.

However, the first note remained void and unenforceable against Anna Chedli and the collateral mortgage, as she did not assent to its alteration.

The second promissory note, signed by Dennis Chedli alone, was found to be statute-barred as there was no corroborating evidence of his assent to its conversion to a demand note.

Following the dismissal of the plaintiffs' motion to reinstate their action and the granting of the defendants' motions for summary judgment and a vexatious litigant declaration, the court determined the costs payable to the defendants.

The plaintiffs failed to provide responding costs submissions and had a history of ignoring adverse costs awards.

The court awarded the defendants their requested costs on a partial indemnity basis, totaling $85,832.43.