Aaron Mayer Postelnik

The plaintiffs brought an action for condominium deficiencies against the condominium corporation, board members, and the vendor.

Multiple third, fourth, and fifth party claims were subsequently issued, resulting in nineteen parties.

A case management conference was convened to address the scheduling of examinations for discovery and mediation.

To balance the parties' discovery rights with the need for proportionality and cost-efficiency, the court ordered time-limited 'summary' examinations of three hours per witness to take place prior to a mandatory mediation session.

If the matter does not settle at mediation, full examinations will be completed thereafter.

Following a successful summary judgment motion dismissing the plaintiff's action, the defendants sought costs on a partial indemnity basis until an offer was served, and on a substantial indemnity basis thereafter.

The court found no basis in law or fact to award substantial indemnity costs to the defendants.

Considering the defendants' delay in bringing the summary judgment motion despite knowing the facts early on, the court awarded partial indemnity costs fixed at $15,000 inclusive of disbursements and HST.

The plaintiff appealed a motion judge's order requiring it to post $30,000 as security for costs in a fraudulent misrepresentation action against a real estate brokerage.

The Divisional Court allowed the appeal, finding that the plaintiff had established impecuniosity and that its claim against the brokerage had a good chance of success.

The order for security for costs was set aside.

Following a consent order dismissing the action against several defendants and striking the plaintiff's fresh as amended statement of claim, the successful defendants sought costs.

The court awarded full indemnity costs to a defendant lawyer due to unfounded allegations of fraud and breach of fiduciary duty.

Other defendants were awarded costs on a partial indemnity basis.

The court rejected the plaintiff's argument that costs should be limited or denied due to procedural steps or prior cost awards.

The plaintiff was ordered to pay substantial costs to the moving parties.

The appellants appealed a trial decision awarding the plaintiffs $20,000 for a purchaser's lien and dismissing their counterclaim and crossclaims, as well as the subsequent costs awards.

The appellants argued the $20,000 award constituted double recovery because the plaintiffs had previously settled with other defendants for $400,000.

The Divisional Court dismissed the appeal, finding no double recovery because the purchaser's lien claim was only advanced against the appellants.

The court also found no error in principle in the trial judge's discretionary costs awards.

Multiple defendants moved under Rules 21 and 25 of the Rules of Civil Procedure to strike a lengthy statement of claim alleging fraud, conspiracy, breach of fiduciary duty, breach of trust, and unjust enrichment arising from unpaid German loan obligations allegedly concealed through asset transfers and trusts.

The court held that the pleading failed to set out material facts supporting the elements of the alleged causes of action and largely consisted of vague allegations and legal conclusions.

Several claims were struck as disclosing no reasonable cause of action, though the plaintiff was granted leave to amend.

The court emphasized the requirement to plead material facts and provide full particulars for allegations of fraud and related claims.

The plaintiff was also ordered to properly produce loan documents referenced in the pleadings.

The plaintiffs commenced an action for professional negligence and breach of contract arising from a commercial real estate transaction.

After two years, a status notice was issued, and the plaintiffs requested a status hearing to prevent the action from being dismissed for delay.

The defendants opposed the continuation of the action, arguing the plaintiffs failed to adequately explain the delay or demonstrate an absence of prejudice.

The Master reviewed the conflicting jurisprudence on status hearings and concluded that, while the delay was problematic, the plaintiffs provided a sufficient explanation and the defendants suffered no non-compensable prejudice.

The action was allowed to proceed subject to a strict timetable.

The realtor defendants brought a motion to dismiss or stay the action as an abuse of process, arguing that all parties had operated under the mistaken belief that the claim against them had been struck following a consent order requiring delivery of an affidavit of documents.

In fact, no formal order dismissing the action had ever been obtained.

The moving parties argued that principles of finality and fairness required that the action be treated as if it had been dismissed and that the delay in pursuing the claim against them justified termination of the proceeding.

The court held that the finality principle applies only where a final order exists and that prejudice cannot be presumed where the action remains valid and subsisting.

Balancing fairness and the absence of demonstrated prejudice, the court permitted the action to continue against the realtor defendants.

The appellant appealed an order of a Master requiring the appellant to post security for costs.

The Master had found that impecuniosity had not been established, that the appellant’s case did not demonstrate a high likelihood of success, and that no hardship would result even if impecuniosity could not be shown.

Applying the standard of review for appeals from a Master, the court found no palpable or overriding error and no error of law in the Master’s reasoning.

The appeal was dismissed and the security for costs order remained in effect.

The plaintiff corporation sought an adjournment of the defendants’ motion to dismiss the action for failure to comply with interlocutory orders requiring payment of costs and posting of security for costs.

The plaintiff also requested extensions of time and a reduction of the security amount.

The court considered Rules 56.06, 56.07, 57.03, and 60.12 of the Rules of Civil Procedure, emphasizing the balance between enforcing court orders and allowing disputes to be decided on their merits.

Although the plaintiff had failed to comply with prior orders and had only partially raised the required funds, the court found limited evidence supporting a short final extension.

The court granted a final extension of time to post security for costs and pay outstanding costs but refused to reduce the security amount.

The plaintiffs commenced a solicitor's negligence action against the defendant lawyer as a precautionary measure, alleging he failed to prosecute an underlying fraud action.

The plaintiffs took no steps in the negligence action for over two years, intending to hold it in abeyance pending the outcome of a second underlying action against the fraudsters.

At a status hearing, the court applied the Khan test and found that while the plaintiffs' unilateral decision to hold the action in abeyance without notifying the defendant was unreasonable, a contextual approach favoured allowing the action to proceed on its merits, as the defendant suffered no prejudice.

The appellants appealed an order dismissing their motion to set aside a registrar's dismissal of their personal injury action for delay under Rule 48.14.

The action was dismissed in 2007 after the appellants' former lawyer failed to set the action down for trial or respond to the status notice.

The Court of Appeal found the delay between 2006 and 2010 to be inexcusable, attributing it almost entirely to the appellants' counsel.

The Court held that the finality principle outweighed the lack of actual prejudice to the respondents, noting the appellants still had recourse through a solicitor's negligence action.

The appeal was dismissed.

The appellants, who acted as real estate agents in the sale of a property for a dental office, appealed a trial judgment finding them liable in negligence after the purchaser discovered the property lacked the required parking spaces.

The trial judge apportioned 20% liability to each agent, 10% to the vendor, and 50% to the purchaser's lawyer.

On appeal, the appellants argued the vendor should bear more fault due to receiving the financial benefit of the sale, claimed unjust enrichment against the vendor, and argued the limitation period had expired based on the purchaser's lawyer's imputed knowledge.

The Court of Appeal dismissed the appeal, holding that benefit received is not a freestanding consideration for apportionment under the Negligence Act, the agents suffered no deprivation to support unjust enrichment, and the trial judge did not err in his discoverability analysis.

The appellants, real estate agents, appealed a trial judgment awarding damages to the respondent for their failure to include a financing condition in a second offer to purchase a residential property.

The Divisional Court allowed the appeal and dismissed the action, finding that the respondent suffered no damage as a result of the appellants' omission.

Even if the condition had been included, the conditional period would have expired before the bank withdrew its financing approval, leaving the respondent in the same position.

The cross-appeal was dismissed, and no costs were awarded due to the appellants' conduct.

The appellants appealed the trial judge's assessment of damages arising from structural problems in a purchased property.

The Court of Appeal found that the trial judge misapprehended evidence by disregarding the 2004 sale price of the property, as a Statement of Disclosure showed the purchaser was aware of the structural issues.

The Court reassessed the damages based on the diminution of value, reducing the award to $50,000 plus consequential damages.

Consequently, the respondent's cross-appeal was dismissed, and the trial costs award was reduced to partial indemnity because the new damage award did not beat the respondent's Rule 49 offer.

The third party real estate agent appealed a trial judgment awarding the purchasers damages and costs arising from an aborted real estate transaction.

The purchasers had settled the main action with the vendor and proceeded against the agent for negligence and breach of fiduciary duty.

The Court of Appeal upheld the trial judge's findings on liability and mitigation, noting the purchasers were not obliged to close the transaction given the uncertainty of repair costs and their specific need for a move-in ready home.

However, the Court varied the costs award, recharacterizing the costs of defending the main action as damages and reducing the trial costs of the third party action.