Alfred S. Schorr

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.

The appellants appealed a summary judgment dismissing their action against the respondent law firm and lawyer for allegedly failing to complete settlement documents by a specific date.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that while a plaintiff need not quantify their loss to avoid summary judgment, they must demonstrate some evidence in the record that a loss occurred.

The appellants failed to provide such evidence.

The trustee in bankruptcy appealed a motion judge's dismissal of its claim for half the proceeds of a fire insurance policy on the bankrupt's former matrimonial home, and the allowance of the bankrupt's former spouse's claim for 100% of a debt she paid as a joint guarantor.

The former spouse cross-appealed the dismissal of her claim for another guaranteed debt based on the rule against double proof.

The Court of Appeal allowed the trustee's appeal regarding the insurance proceeds, finding no evidence of a matrimonial settlement giving the spouse sole ownership.

The Court dismissed the trustee's appeal regarding the first guarantee, upholding the motion judge's finding that the spouse's 'just proportion' was 100% due to pressure and lack of understanding.

The Court also dismissed the cross-appeal, affirming that the rule against double proof prevented the spouse from claiming the second guaranteed debt while the principal creditor also claimed it.

The appellants challenged summary judgment enforcing a loan guarantee on the basis that the lender failed to comply with the Regulations under the Canada Small Business Financing Act by not taking first-ranking security and by relying on a guarantee term permitting direct recourse against guarantors.

The court held that, on the facts, the failure to obtain first-ranking security did not invalidate the guarantee or provide the guarantors with a remedy, particularly absent evidence of misleading conduct when the guarantee was executed.

The court further held that the impugned guarantee provision was not inconsistent with the statutory scheme, including the requirement that the lender realize on available security before making a claim to the Minister.

The appeal was dismissed with costs.

The defendants, a law firm and one of its lawyers, brought a motion for summary judgment to dismiss the plaintiffs' action for intentional infliction of mental suffering, negligence, and breach of contract.

The action arose from the defendants' prior representation of the plaintiffs in two litigation matters.

The court granted the motion and dismissed the action, finding that although there were genuine issues of material fact regarding negligence and breach of contract, the plaintiffs failed to produce any evidence of damages.

Without evidence of damages, the claim had no chance of success, making a trial unnecessary.

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.

Following a successful summary judgment motion by the plaintiff bank enforcing guarantees, the court determined the appropriate costs award.

Although the guarantees entitled the plaintiff to substantial indemnity costs, the court exercised its discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure to scrutinize the reasonableness and proportionality of the claimed amounts.

Certain time entries, including preparation for cross-examinations related to a defence under the Canada Small Business Financing Act, were found excessive and reduced.

The court also considered that the defendants had previously succeeded on a motion to compel answers and that costs relating to that step should not be included.

Costs were fixed at $18,000 in fees plus $3,879.04 in disbursements.

A former spouse sought to advance a proof of claim in the bankruptcy of her husband after paying amounts under personal guarantees of corporate debts owed to financial institutions.

The court considered the rule against double proof in bankruptcy, which prevents multiple claims in respect of the same underlying debt so as to preserve pari passu distribution among unsecured creditors.

The court held that the claimant could not advance a proof of claim relating to amounts paid to a bank where the bank had not recovered its debt in the bankruptcy beyond the payment she made, as this would constitute double proof.

However, the court permitted a claim for the full amount paid under a separate guarantee to another creditor whose debt had been fully satisfied.

The court also rejected the trustee’s attempt to recover household contents from insurance proceeds, accepting evidence that the separated spouses had agreed those assets would belong to the claimant.

A lender moved for summary judgment against individual guarantors following default on a small business loan.

The defendants argued that alleged non-compliance with the Canada Small Business Financing Act and its regulations voided or limited their liability under the guarantees.

The court held that the statutory regime governs the lender’s entitlement to reimbursement from the federal government and does not alter the contractual obligations between lender and borrower or guarantors.

Any non-compliance would only disentitle the lender from recovering under the statutory program, not invalidate the guarantees.

Finding no genuine issue requiring a trial, the court granted summary judgment against the guarantors.

The appellant builder appealed a trial judgment ordering the return of the respondents' deposit and upgrade payments for a new home.

The trial judge found that the appellant's letter extending the closing date amounted to an anticipatory breach of the agreement of purchase and sale, which the respondents accepted, terminating the agreement.

On appeal, the appellant argued the trial judge erred by deciding the case on the unpleaded issue of anticipatory breach.

The Divisional Court dismissed the appeal, holding that the finding of repudiation was a natural consequence of interpreting the documentary evidence and the appellant suffered no unfairness.

The court also upheld the trial judge's costs award to the third-party lawyer.

The Court of Appeal issued an addendum to clarify the costs and interest awarded in its previous decision (2012 ONCA 143).

The appellants were awarded costs of the appeal fixed at $6,700, costs of the trial to be agreed upon or assessed, and pre- and post-judgment interest in accordance with the Courts of Justice Act.

The appellants purchased restaurant equipment and leased premises from the respondents.

After a dispute over insurance, the appellants began removing equipment but were allegedly locked out.

The respondents subsequently leased and sold the premises along with the remaining equipment.

The trial judge dismissed the appellants' action for conversion, finding they had abandoned the equipment.

On appeal, the Court of Appeal found the trial judge erred by failing to consider evidence showing the appellants' ongoing intention to claim possession and by assuming the equipment had no market value.

The appeal was allowed, and the respondents were found liable for conversion.

Due to unsatisfactory valuation evidence, nominal damages of $10,000 were awarded.

A guarantor brought a motion to set aside an order striking her statement of defence and affidavit and to set aside a default summary judgment obtained by a bank arising from loan guarantees executed in connection with corporate borrowing.

The moving party argued she lacked independent legal advice, had limited English proficiency, and was dominated by her spouse when signing the guarantees.

The court acknowledged serious credibility concerns and delay but found potential prejudice to the guarantor if she were denied the opportunity to defend the action.

As the bank’s interests could be protected by maintaining existing execution and garnishment proceedings, the court set aside the order striking the defence and the default judgment.

The moving party was ordered to pay the bank’s thrown-away costs forthwith.

The defendants brought a motion under Rule 25.10 of the Rules of Civil Procedure seeking further particulars of allegations in a statement of claim arising from an alleged oral agreement for consulting building services.

The moving parties sought additional documentation relating to invoices from consultants and proof of payments made by the plaintiff.

The court reviewed the governing principles on ordering particulars, emphasizing that particulars are required only when the information is not within the requesting party’s knowledge and is necessary to enable a responsive pleading.

The court held that the plaintiff had already provided sufficient particulars through a detailed invoice attached to an affidavit and that the additional documents requested constituted evidence rather than particulars.

The motion was dismissed and the defendants were ordered to deliver their statement of defence.

The appellants appealed a Small Claims Court judgment that denied them a $10,000 fee for preparing a Professional Marketing Package to obtain mortgage financing.

The trial judge found the appellants were acting as unregistered mortgage brokers.

The Divisional Court dismissed the appeal, holding that the appellants were 'carrying on business' as mortgage brokers and that it would be contrary to public policy to allow an unregistered broker to enforce payment of a fee under the Mortgage Brokers Act.

The appellants appealed a declaration that the respondent's claims were not released by bankruptcy due to defalcation under s. 178(1)(b) of the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the appeal, finding that the appellants' failure to invest funds as agreed, failure to recover them, and failure to account for them amounted to serious misconduct and moral turpitude within a fiduciary relationship, satisfying the test for defalcation.

The appellant appealed a trial judge's decision which found that the respondent did not convey an RRSP with fraudulent intent under section 2 of the Fraudulent Conveyances Act.

The Court of Appeal dismissed the appeal, holding that the trial judge made no error in apprehending the evidence or arriving at her conclusion based on findings of fact.

Costs of $6,000 were awarded to the respondent.

The appellant bank appealed a summary judgment requiring it to pay the respondent $299,419.82 from his bank account.

The appellant argued there was an agreement to freeze the funds pending the outcome of related litigation, supported by consideration in the form of continued cheque cashing facilities.

The Court of Appeal found genuine issues for trial regarding the existence of the agreement and mutual consideration, allowed the appeal, and set aside the summary judgment.