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 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 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.

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.

The plaintiff, a foreman for a drywall contractor, was summarily dismissed after working for the defendant for several years.

The defendant argued the plaintiff was an independent contractor not entitled to notice.

The court applied the Sagaz test and found the plaintiff was an employee, as he worked exclusively for the defendant, used their tools, and did not share in profits or losses.

The court awarded a 6-month reasonable notice period based on the Bardal factors and found the defendant failed to prove a failure to mitigate.

Damages of $62,780 were awarded.

This is a costs endorsement following a judgment released on February 19, 2019, which upheld a Master's ruling dismissing an appellant's motion to compel a non-party respondent to answer undertakings.

The non-party respondent, Eric Grossman, was successful in defending the Master's order and sought costs on a substantial indemnity basis.

The court found that costs follow the event and that the amount sought by the respondent was reasonable, especially considering the appellant's own costs outline.

The court exercised its discretion to slightly reduce the requested amount due to potential non-conformity of the offer to settle with Rule 49.

The appellant was ordered to pay costs to the non-party respondent.

The appellant appealed a Master's decision that declined to enforce undertakings given by a non-party deponent during an examination in aid of execution.

The Master had found that the appellant breached the common law implied undertaking rule by using the deponent's evidence to commence a new fraudulent conveyance action against him.

The Superior Court upheld the Master's decision, finding no error in the Master's exercise of discretion to refuse to compel answers to undertakings, particularly given the collateral use of the evidence and the potential for abuse of process.

The court noted that even if the initial examination was voluntary, compelling answers to undertakings would make the evidence court-ordered and thus subject to the implied undertaking rule.

CVC Ardellini Investments Inc. sought a declaration that the debt of the bankrupt Templar Hotel Corporation was at least $17 million, following a refinancing arrangement.

Del Terrelonge, a guarantor, argued the debt was limited to $8.5 million, contending the refinancing constituted a new loan.

The court found that the refinancing was a forbearance agreement, not a permanent reduction of the original debt.

Upon Templar's default, the full original debt amount became enforceable, and the provisions of the Interest Act and the Courts of Justice Act regarding penalties and forfeitures did not apply.

The motion was granted in favour of CVC Ardellini Investments Inc.

The plaintiff sought to compel answers to undertakings from non-party Eric Grossman and Mass Fidelity Inc., and to compel non-party David Donahue to attend an examination in aid of execution to enforce a judgment against Mass Fidelity Inc. The court dismissed the motion to compel Grossman's undertakings, finding the plaintiff breached the implied undertaking rule by using examination evidence to commence a new action without leave.

The motion to compel Mass Fidelity Inc. to answer Grossman's undertakings was dismissed as Grossman was not an officer or director.

The motion to compel Donahue's attendance was dismissed because the plaintiff had not yet examined the judgment debtor, Mass Fidelity Inc., or its principal, Neil D'Souza, thereby failing to exhaust all available means before seeking to examine a stranger to the litigation.

An appeal from a Superior Court order striking out a notice of objection to the passing of accounts in the estate of Lidia Iaboni.

The appellant, Carlo Iaboni, objected to the respondents' administration of his parents' estates on grounds of alleged misappropriation of funds.

The motions judge struck the notice of objection on three bases: lack of merit, abuse of process (attempting to relitigate a dismissed action), and being time-barred under the Limitations Act.

The Court of Appeal dismissed the appeal, finding no error by the motions judge and noting that the appellant's factual allegations were not substantiated.

The appellant appealed a 15-month jail sentence imposed for two counts of making false statements contrary to the Canada Small Business Financing Act and three counts of fraud contrary to the Criminal Code.

The appellant had exploited the Canada Small Business Financing Program by using false documents to secure loans for his own business and seven other business entities, resulting in over $1 million in loans advanced and $409,000 in losses to Industry Canada.

The appellant extracted $192,000 in fees and obtained $100,000 through his own company.

The sentencing judge imposed imprisonment after finding that a conditional sentence would not sufficiently advance general deterrence and denunciation.

The Court of Appeal upheld the sentence, finding no error in principle and that the sentence was not manifestly unfit.

The respondents in an application for assessment of solicitors’ accounts brought a motion to consolidate that application with a related action seeking payment of outstanding legal accounts and enforcement of a retainer agreement.

The moving parties argued consolidation under Rule 6.01 of the Rules of Civil Procedure would avoid multiplicity of proceedings because both matters involved overlapping issues relating to the retainer agreement and the accounts rendered.

The court held that the issues raised in the assessment application were comparatively straightforward and could be determined efficiently through the application process rather than a lengthy trial.

Consolidation would likely create delay and additional expense and would undermine the expeditious process contemplated for assessments under the Solicitors Act.

The motion to consolidate was therefore dismissed.