Alfred S. Schorr

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 applicants (Builder) brought a motion under s. 25(7) of the Building Code Act to stay an Order to Comply (OTC) issued by the Chief Building Official (CBO) of the Town of Midland, pending the outcome of a related Licence Appeal Tribunal (LAT) appeal initiated by the respondent homeowners.

The OTC required the removal and replacement of stucco on a newly built house.

The CBO supported the stay, while the homeowners opposed it.

The court found that the RJR-MacDonald test for a stay did not apply because the court was merely deciding not to exercise its jurisdiction until a later time.

Applying the test for a temporary stay pending another proceeding, the court found substantial overlap of issues, shared factual background, and that a stay would prevent duplication of resources.

The motion for a stay was granted, and the OTC appeal was adjourned pending the LAT appeal outcome.

The appellant appealed a summary judgment dismissing his claims for wrongful dismissal against affiliated companies of his bankrupt former employer.

He argued they were liable as common employers and conspired to use the bankruptcy process to defeat his claims.

The Court of Appeal upheld the motion judge's finding that there was no evidentiary basis for the common employer claim and that the employment agreements precluded joint liability.

The court also found no unfairness in the motion judge requesting additional submissions on the common employer issue.

The appeal was dismissed.

The deceased, a non-swimmer, drowned in Lake Simcoe while visiting the respondents' cottage.

The appellants brought an action in negligence and negligent misrepresentation, alleging the respondents failed to warn the deceased of the lake's dangers and falsely represented that the lake was safe and shallow.

The motion judge dismissed the action on summary judgment, finding no special relationship or duty of care.

The Court of Appeal upheld the dismissal, agreeing that the respondents did not control the lake, did not create a risky situation, and owed no duty to warn the deceased of obvious dangers removed from their property.

Following a successful summary judgment motion dismissing the plaintiff's claims in one of two proceedings, the court issued a supplementary endorsement to finalize the consolidation order and determine costs.

The court rejected the defendants' request to require pre-clearance of the plaintiff's Consolidated Statement of Defence.

On costs, the court declined to award substantial indemnity costs, finding partial indemnity appropriate.

Considering the plaintiff's financial circumstances and the defendants' over-lawyering, the court fixed costs at $30,000 payable to the defendants.

The appellant appealed an order dismissing her objection to a Master's report that found her mortgage was a fraudulent conveyance and preference, and therefore void.

The appellant argued the respondent was estopped from challenging the mortgage due to delay and acquiescence, and that the delay gave rise to laches.

The Court of Appeal dismissed the appeal, finding the respondent did not know the facts underlying the fraudulent mortgage until discovery, and that laches requires both delay and prejudice, which the appellant failed to establish.

The plaintiff, former CEO of the defendants, sued for wrongful dismissal and related torts, alleging the defendants were common employers with his bankrupt direct employer and conspired to place it into bankruptcy to avoid paying his severance.

The defendants moved for summary judgment.

The court granted the motion and dismissed the plaintiff's claims, finding the tort claims were an impermissible collateral attack on the bankruptcy orders and lacked evidentiary support.

The court also held that the written employment agreements precluded a finding of common employer liability, and that a release executed by the plaintiff in favour of the bankrupt employer's trustee operated to release the defendants as alleged joint debtors in any event.

Following the granting of summary judgment dismissing a wrongful death action arising from a drowning incident, the court addressed costs.

The plaintiffs argued that no costs should be awarded due to the tragic circumstances and potential financial hardship.

The court held that while tragic circumstances and the losing party’s ability to pay may be relevant considerations, the evidence demonstrated the estate held assets exceeding approximately $1 million and the plaintiffs could reasonably anticipate a costs award.

The court therefore exercised its discretion to award partial indemnity costs for both the summary judgment motion and the action, taking into account the reasonable expectations of the parties and the principles articulated by the Court of Appeal regarding proportional and predictable costs awards.

The defendants moved for summary judgment dismissing a negligence action arising from a drowning at Lake Simcoe during a social visit to their cottage.

The plaintiffs alleged the defendants negligently misrepresented that the lake was safe and failed to warn a non‑swimmer of risks or provide safety equipment.

The court held that no special relationship existed giving rise to a duty of care and that the alleged statements about the lake’s safety did not constitute negligent misrepresentation.

The deceased was an adult who voluntarily entered the water using his own flotation device, and the lake was not part of the defendants’ property.

Applying Hryniak v. Mauldin, the court found no genuine issue requiring a trial.

The appellant applied for a declaration of a prescriptive easement over a private laneway behind its property.

The application judge dismissed the application, finding the 20-year use was by licence rather than as of right.

On appeal, the Court of Appeal found no evidence to support the finding of permission.

The court held that the continuous, open, and uninterrupted vehicular use of the laneway for over 20 years raised an inference of acquiescence by the servient owner, shifting the evidentiary burden to the respondent to prove permission.

As no such evidence was adduced, the appeal was allowed and the easement declared.

The applicant sought a declaration that he owned a condominium parking unit omitted from the 1997 conveyance through solicitor inadvertence.

The court found that equitable title transferred on payment of the full purchase price under the written agreement of purchase and sale, and that the vendor thereafter held legal title as constructive trustee for the applicant.

Applying the Real Property Limitations Act rather than the Limitations Act, 2002, and relying on the Court of Appeal's constructive trust analysis, the court held the claim was not statute-barred because the error was only recently discovered and the applicant had not been dispossessed.

Service on the missing vendor was dispensed with and declaratory relief was granted with a direction to register the transfer.

In a trial of a cross-claim arising from a residential real estate sale, the cross-claimant alleged that the realtor and brokerage misrepresented future market conditions and induced a sale below value during the 2008-2009 financial downturn.

The court rejected the cross-claimant's credibility, accepted the realtor's evidence on key factual disputes, and held that statements about the future direction of the market were not actionable misrepresentations on the facts found.

The court further held that the alleged statements did not amount to contractual warranties and that the property sold at market value.

In any event, the claimed loss based on later appreciation was not proven.

The defendant moved for summary judgment dismissing the action as statute-barred under the Limitations Act, 2002.

The plaintiff alleged an agreement to purchase shares through funds advanced in 2004 and 2005, and relied on subsequent promises of repayment and share substitution, including a 2010 recorded conversation, to argue acknowledgement of indebtedness and promissory estoppel.

Applying the summary judgment framework, the court held the limitation defence, the start date of any limitation period, and the availability of promissory estoppel were factually intertwined with the merits.

A trial was required for a fair and just determination.

The applicant sought a declaration that it possessed a prescriptive easement permitting use of a private laneway over the respondent’s property to access parking at the rear of its premises.

The claim relied on alleged continuous and uninterrupted use by the applicant’s predecessors in title for over 20 years before the lands were converted to the Land Titles system.

The court reviewed the principles governing prescriptive easements and the doctrine of lost modern grant, emphasizing the requirement that use be “as of right” rather than permissive.

The evidence established long-standing use of the laneway but did not demonstrate that the use occurred without permission or that the servient owner acquiesced to an asserted right.

The court concluded the use was more consistent with a neighbourly licence than a legally enforceable easement.