Alfred S. Schorr

This is an appeal of a construction lien action decision rendered by Associate Justice Wiebe following a summary trial.

The defendants appealed the judgment and costs decision on five grounds: improper admission of reply evidence in breach of the rule in Browne v. Dunn; erroneous factual findings regarding door frames and drywall/soundproofing; incorrect calculation of the quantum meruit claim; and an excessive costs award.

The appellate judge dismissed all grounds of appeal, finding no error in principle or palpable and overriding errors in the trial judge's findings.

The court upheld the quantum meruit award of $56,554.67 and the costs award of $85,000 at trial, and awarded costs to the successful respondent on appeal.

The appellant appealed a Small Claims Court judgment awarding the respondents $35,000 for unpaid ATM machines.

The appellant argued the trial judge erred by not enforcing a forum selection clause designating Alberta, and by finding the debt was owed to the specific corporate entity that sent the invoice.

The Divisional Court dismissed these grounds, finding the trial judge properly applied the 'strong cause' test to decline enforcing the forum selection clause and reasonably inferred the debt was owed to the invoicing entity.

However, the appeal was allowed in part to reduce the pre- and post-judgment interest rate from 18% to 5% per annum, as the invoice failed to state an annualized rate as required by section 4 of the Interest Act.

The plaintiff contractor brought an action to perfect a construction lien for unpaid renovation and flood repair work.

The court found that while there was no enforceable contract due to a lack of agreement on scope and price, the plaintiff was entitled to recovery on a contractual quantum meruit basis because the defendant requested and accepted the work.

The court valued the work at $56,554.67 based on the plaintiff's actual costs and dismissed the defendant's claims of deficient work.

The plaintiff was granted damages and a valid lien in that amount.

The plaintiff, R-J Machinery Inc., sought judgment for additional charges incurred in supplying and modifying an automated machine for the defendant, Exel Canada Inc. Exel counterclaimed for damages, alleging the machine was not fit for purpose or of merchantable quality.

The court found that the machine was designed and built to specifications based on samples provided by Exel, and that subsequent performance issues were caused by Exel's use of irregular and warped components, contrary to the contract's express terms.

The court determined that Exel had agreed to pay for the necessary modifications on a time and material basis.

Consequently, the plaintiff's claim for payment was largely granted, and the defendant's counterclaim for breach of warranty was dismissed.

This is a costs endorsement following the dismissal of multiple appeals.

The Court of Appeal for Ontario had previously dismissed appeals brought by the appellants and invited submissions on costs.

The parties subsequently reached an agreement on costs.

The endorsement formalizes this agreement, ordering the appellant Lina Bertasiene to pay $7,500 in costs to the Kvyetko respondents, and appellants Lina Bertasiene and Singaras Bertasius to pay $14,700 for the appeal and an additional $5,000 for a fresh evidence motion to the Ilioukevitch respondents.

The Court of Appeal for Ontario heard appeals from summary judgments enforcing multiple mortgages against the appellants.

The appellants challenged the judgments on various grounds, including allegations of criminal interest rates, invalid mortgage registration, improper crediting of payments, and mortgage fraud, including a claim of forged signatures.

The Court dismissed all appeals, upholding the motion judge's findings that the mortgages were valid and enforceable, and that there was no genuine issue requiring a trial.

The Court also rejected a request to introduce new evidence (handwriting expert report) on appeal due to lack of diligence.

The appellant, Anne Elizabeth Fair, appealed the dismissal of her action against BMO Nesbitt Burns Inc. and the estate/children of her deceased husband, Lloyd Fielder Fair.

She alleged BMO Nesbitt had a duty to inform her of a change in beneficiary designations on her husband's investment accounts (from her to his children) and sought a constructive trust over the proceeds based on an alleged agreement with her husband.

The Court of Appeal dismissed the appeal, finding no duty on BMO Nesbitt to disclose beneficiary changes to a third party and insufficient evidence to establish a clear agreement with the deceased husband to maintain beneficiary designations, distinguishing the case from Moore v. Sweet.

The appellant, Armando Scarlato Jr., appealed the dismissal of his breach of contract action on a motion for summary judgment.

He alleged the respondents, Richard Buzbuzian and Jason Monaco, breached an agreement to pay him a commission or finder’s fee for introducing them to a third-party corporation for a proposed IPO.

The motion judge found that emails exchanged did not constitute a contract, lacking essential terms, and alternatively, that the appellant was estopped by a settlement with the third party.

The Court of Appeal upheld the motion judge's finding that no contract was formed, emphasizing deference to findings of contractual interpretation as mixed fact and law, and concluding that the term sheet did not remedy the contractual deficiencies.

The appeal was dismissed with costs to the respondents.

The plaintiff, Indell Corporation, brought a motion for summary judgment against the defendant, Axiom Real-Time Metrics Inc., concerning responsibility for flood damage repairs and unauthorized tenant improvements under a commercial lease.

The third party, MMC Marketing and Promotion Inc., also raised issues regarding damages and betterment.

The court dismissed the motion for summary judgment, finding genuine issues requiring a trial regarding contractual interpretation, estoppel, and the calculation of damages, including betterment and an administrative fee.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action.

The plaintiff claimed entitlement to the proceeds of her deceased husband's investment accounts, alleging an oral agreement that they would remain beneficiaries on each other's accounts, and asserting a constructive trust.

She also sued the investment firm for failing to notify her when the deceased changed his beneficiaries to his children.

The court granted summary judgment, finding the investment firm had no duty to disclose the deceased's personal financial decisions, and the plaintiff failed to establish a constructive trust or agreement, noting she had already received a substantial portion of the estate.

The plaintiff transferred $96,000 to the defendant during their brief intimate relationship.

After the relationship ended, the plaintiff sued to recover the funds, claiming they were a loan, while the defendant argued they were a gift.

The court applied the presumption of resulting trust, placing the onus on the defendant to prove the transfers were gifts.

Finding the defendant's testimony not credible and the text messages equivocal, the court concluded the defendant failed to meet her onus and ordered her to repay the $96,000.

The moving party defendant, a co-owner of a residential property, sought an order for partition and sale under the Partition Act.

The responding parties opposed the motion, arguing the moving party had already extracted her share of equity through a unilateral mortgage refinancing and had unclean hands.

The court granted the motion, finding that the discretion to refuse partition and sale is strictly limited to cases of malice, oppression, or vexatious intent, which were not established here.

The court ordered the property sold and the net proceeds paid into court pending the resolution of the underlying accounting action.

The defendant, having been successful in the underlying action regarding its right to rebroadcast a 1984 interview, sought partial indemnity costs.

The plaintiff argued the defendant should be deprived of costs due to morally offensive conduct in rebroadcasting the program, which posed a safety risk to the plaintiff.

The court found no morally offensive behaviour, noting the defendant acted responsibly by removing the interview once alerted to the plaintiff's concerns.

The court awarded the defendant partial indemnity costs of $9,042.04, holding that sympathy for the plaintiff's situation is not a basis to refuse costs.

The defendants brought a refusals motion arising from the examination for discovery of the plaintiff in a franchise dispute.

The defendants sought answers regarding the plaintiff's prior business experience to test his credibility about whether earnings projections were provided at a crucial meeting.

The court ordered the plaintiff to answer these questions, finding them relevant to what occurred at the meeting.

However, the court upheld the plaintiff's refusals to answer questions regarding discussions with his independent legal advice lawyer, as those questions improperly breached solicitor-client privilege.

The defendants brought a motion to remove the plaintiffs' counsel of record, arguing he would likely be called as a witness at trial regarding his role in assisting a former franchisee to provide documents to the plaintiffs' previous counsel.

The defendants also sought a further and better affidavit of documents regarding these communications.

The court granted the request for a further affidavit of documents, finding the communications and attachments relevant to the issues at trial.

However, the court dismissed the motion to remove counsel as premature, concluding it was unlikely counsel would be called to testify and his evidence would have tenuous relevance.

The plaintiffs alleged that the defendant, an officer of their corporation, fraudulently and without authorization registered two mortgages against their properties.

They also sued the lawyer who registered the mortgages for negligence and the mortgagees for relying on the mortgages despite alleged red flags.

The court dismissed the action, finding that the officer had actual authority to bind the corporation under its by-laws, the plaintiff was aware of and benefited from the mortgages as part of a scheme to avoid foreign creditors, the lawyer met the standard of care, and the mortgagees were protected by the indoor management rule and the Land Titles Act.

A former police informant, John Doe (previously Cecil Kirby), sued the Canadian Broadcasting Corporation (CBC) for breach of contract, breach of privacy, and negligence after the CBC rebroadcast a 1984 interview in 2015.

The plaintiff alleged an oral agreement that the interview would only be shown once.

The CBC moved for summary judgment, asserting the written contract granted them full rights to the content and denying any oral agreement.

The court granted summary judgment, finding no admissible evidence to support the alleged oral agreement and that the written contract provided lawful justification for the rebroadcast, thereby dismissing all claims.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to prevent their action from being dismissed for delay.

The motion was opposed by the Wong Defendants.

The court found an acceptable explanation for the delay concerning claims related to OM Policies, citing the plaintiffs' engagement in preliminary motions and settlement discussions with OM Financial Inc. However, the court found no acceptable explanation for the delay regarding claims related to PPI Policies, where no steps were taken for over 4.5 years and the Wong Defendants were the sole remaining defendants for those claims.

Consequently, the court ordered that the action proceed with respect to the OM Policies but dismissed the claims related to the PPI Policies, establishing a new timetable for the remaining litigation.

This decision addresses the costs arising from a motion to set aside a default judgment.

The plaintiffs sought costs on a substantial indemnity basis, while the defendants argued for partial indemnity.

The court found no conduct warranting a punitive costs award and therefore awarded costs on a partial indemnity basis, reducing the plaintiffs' claim for redundancies.

The final award was $21,000, all inclusive.

The appellant, principal of a hotel corporation that defaulted on mortgage financing, appealed a motion judge's decision regarding interpretation of a forbearance agreement.

The appellant argued that under the forbearance agreement with the respondent lender, the debt was limited to $8.5 million (the amount paid to discharge the original mortgage), rather than the full $17 million outstanding.

The appellant also sought relief from forfeiture under section 98 of the Courts of Justice Act.

The Court of Appeal upheld the motion judge's decision, holding that the forbearance agreement clearly assigned the full $17 million debt and that relief from forfeiture was not warranted as the transaction was not unconscionable and the result was not disproportionate.