Allan Sternberg

The court considered an application by Bob Alan Barker to remove his sister, Catherine Elizabeth Barker, as Estate Trustee of their late brother John Joseph Barker’s estate, and to disqualify her from receiving a share of the estate due to alleged breaches of fiduciary duty and misappropriation.

The decision addresses requests for production of financial records, including Catherine’s line of credit and her mother’s bank accounts, and analyzes inconsistencies in Catherine’s explanations regarding the handling of estate assets, the sale of a condominium, and life insurance proceeds.

The court granted some of the requested orders, including production of specific financial documents and an examination under oath, and awarded costs personally against Catherine.

The Estate of William Waters sought the return of over $30 million advanced by the deceased to his wife's personal support worker, Gillian Henry, over a ten-year period.

The Estate argued the funds were investments held on resulting trust, while Henry maintained they were gifts made during a secret intimate relationship.

The court found that the deceased, a sophisticated businessman, intended most of the advances as gifts, except for funds invested in a horse stable business (King of Hearts), which were held on resulting trust.

The court also found that the deceased improperly gifted $2.85 million of his incapacitated wife's money to Henry, which constituted unjust enrichment and must be returned.

Henry's counterclaim for sexual battery was dismissed due to lack of credibility and absence of corroboration required under the Evidence Act.

The respondent purchased a commercial condominium unit with an exclusive use designation for a dental clinic and leased it to the appellant dentist.

Near the end of the lease, the appellant secretly purchased an adjacent unit, moved his practice there, and purported to assign the exclusive use designation to his new unit in perpetuity.

The application judge held that the appellant could only assign the exclusive use right for the duration of his lease term.

The Court of Appeal dismissed the appeal, finding that the application judge correctly applied contractual interpretation principles and the nemo dat principle to conclude that the tenant could not permanently divest the owner of its exclusive use right.

The appellants, LMC 477R Corp. and Newstead Inc., appealed the dismissal of their oppression application under the Condominium Act, 1998, against Metropolitan Toronto Condominium Corporation No. 1046.

The application alleged oppressive conduct by the respondent in interfering with the appellant's parking facility operations and refusing good faith negotiations for a new parking agreement.

The Court of Appeal affirmed the application judge's decision, finding no error in the application of the oppression test or in the factual findings, and dismissed the appeal.

This is an appeal from an order dismissing a motion to stay an application in favour of arbitration.

The dispute concerns a cost-sharing agreement between condominium corporations regarding common expenses.

The motion judge found the essence of the claim was oppressive conduct, which he believed was not arbitrable.

The Court of Appeal reversed, holding that the core dispute was the interpretation and application of the reciprocal agreement, which contained a broad arbitration clause.

Citing recent Supreme Court of Canada jurisprudence, the Court emphasized that courts should not refuse to stay claims covered by a valid arbitration agreement and that oppression claims under the Condominium Act, 1998, are not exclusively for the Superior Court and can be arbitrated.

The appeal was allowed, and the application was stayed as it related to the issues between the two main condominium corporations.

The applicant landlord sought a declaration regarding its rights under a commercial condominium declaration after its tenant, a dentist, purchased an adjacent unit and purported to transfer the exclusive use designation for a dental clinic to the new unit.

The court applied the nemo dat principle, holding that the tenant could only consent to the transfer of the exclusive use for the remaining duration of his lease, protecting the landlord's premium-paid exclusivity.

The applicant tenant brought an application for a declaration that the respondent landlord unlawfully terminated its commercial lease for a parking lot.

The landlord had posted a Notice of Termination alleging the tenant abandoned the premises.

The court found that the landlord's notice did not comply with s. 19(2) of the Commercial Tenancies Act because it failed to provide the tenant with a reasonable opportunity to remedy the alleged breach or make compensation.

Consequently, the court declared the termination of the lease invalid.

The defendants brought a motion to strike out the statements of claim in four related actions against the defendant Adam Abramson, arguing that the pleadings, even with particulars, failed to disclose a reasonable cause of action.

The court granted the motion, finding that the plaintiffs had not pleaded sufficient material facts to establish specific causes of action (negligence, negligent misrepresentation, breach of fiduciary duty, breach of contract, and conspiracy) against Adam Abramson individually.

The court emphasized that merely grouping defendants together was insufficient to provide Adam Abramson with adequate notice of the case against him.

However, the plaintiffs were granted leave to amend their statements of claim.

The respondents moved to stay an application brought by the applicant, TSCC 1628, in favour of arbitration.

The application sought remedies under the Condominium Act, including for oppression (s. 135) and false/misleading statements (s. 133), against TSCC 1636, Soho Grand Condominiums Inc., and Soinco Limited.

The respondents argued the dispute fell under an arbitration clause in a Reciprocal Agreement and s. 132 of the Condominium Act.

The court denied the motion to stay, finding that the essence of the dispute was the allegedly oppressive conduct of Soho in imposing the Reciprocal Agreement, and that remedies under ss. 133 and 135 of the Condominium Act are exclusively within the Superior Court's jurisdiction.

The court also emphasized avoiding multiplicity of proceedings by keeping all related claims in one forum.

The applicant tenant moved for an interlocutory injunction to prevent the new owner of the property from demolishing or renovating the premises, claiming the former landlord breached a right of first refusal (ROFR) in the lease.

The respondents moved to discharge a Certificate of Pending Litigation (CPL) and for security for costs.

The court dismissed the injunction motion and discharged the CPL, finding no serious issue to be tried because the tenant had signed an Estoppel Certificate confirming no material default by the landlord and postponing its interest to the new mortgage.

The respondents' motion for security for costs was dismissed as they failed to show the tenant had insufficient assets.

An accounting firm filed a corporate client's tax returns after the due date, resulting in the denial of approximately $550,000 in tax credits by the Canada Revenue Agency.

The client received notices of assessment in April 2010 and pursued administrative remedies through the CRA appeal process, with the accountant's assistance, until May 2011 when the CRA advised it intended to confirm the assessments.

The client commenced a negligence action in August 2012.

The motion judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the claim was discoverable in April 2010.

The Court of Appeal allowed the appeal, holding that the claim was not discovered until May 2011 when the CRA appeal process concluded, as it would not have been appropriate to commence proceedings while alternative remedies remained available.

Whirlpool appealed a decision dismissing its application for a finding of conflict of interest.

Whirlpool had sold contaminated industrial land to Chavila and Outrigger (affiliates of 863) at a reduced price in exchange for an indemnity agreement obligating them to defend Whirlpool against any claims arising from the property's condition.

When CP and Oxford brought contribution and indemnity claims against Whirlpool, Chavila and Outrigger appointed counsel to defend Whirlpool.

Whirlpool argued this created a conflict of interest because the appointed counsel would be taking instructions from entities affiliated with 863, the plaintiff in the main action against CP and Oxford, and would be unable to raise a limitation defence that would benefit Whirlpool but harm 863.

The majority found no conflict existed because Whirlpool's immediate interests were not directly adverse to those of Chavila and Outrigger, and the indemnity agreement contemplated this scenario.

The dissent argued a patent conflict existed and that Whirlpool was entitled to independent counsel free of conflicts.

The defendants, an accounting firm and an individual accountant, brought a motion for summary judgment to dismiss the plaintiff's professional negligence claim based on the Limitations Act, 2002.

The plaintiff alleged that the defendants' failure to timely file tax returns resulted in the loss of refundable dividend tax on hand (RDTOH) and associated penalties and interest.

The court considered whether the plaintiff's claim was discoverable more than two years prior to its commencement on August 1, 2012.

The court found that the plaintiff had sufficient knowledge of the injury, its cause, and the identity of the wrongdoers by June 2010 at the latest, and that a proceeding would have been a legally appropriate means to seek a remedy at that time, despite ongoing mitigation efforts and the defendants' failure to advise of a potential claim against them.

The court dismissed the plaintiff's arguments regarding prematurity, fraudulent concealment, and estoppel.

The plaintiff brought a motion for summary judgment seeking specific performance of an agreement to lease a commercial property for a car dealership.

The defendant landlord argued the agreement was null and void due to the failure to waive certain conditions, including a solicitor review condition and a due diligence condition, within the stipulated timeframes.

The court found that the defendant, through its conduct and communications, had represented that it would not rely on its strict legal rights regarding the conditions, and the plaintiff had relied on these representations to its detriment.

Applying the doctrine of promissory estoppel, the court held the agreement was binding.

Finding the property to be unique for the plaintiff's intended use, the court granted summary judgment and ordered specific performance.

The applicant sought to enforce an indemnity agreement relating to environmental contamination, requesting that it be defended at the respondents' expense by counsel taking instructions from the applicant rather than the respondents.

The applicant argued that a conflict of interest existed because the sole officer and director of the indemnifying corporations was also the directing mind of the plaintiff corporation in the underlying action.

The court dismissed the application, finding no direct conflict of interest that would deprive the indemnifying parties of their right to direct the defence, as the director was not acting as counsel and the parties' interests were not directly adverse regarding the indemnity.

Following a settlement between defendants and several third parties in a defective window litigation, the plaintiff sought disclosure of the settlement terms and scheduled a motion for that relief.

Before the motion proceeded, the plaintiff received sufficient information about the settlement through exchanged emails and draft releases and abandoned the motion but sought costs for bringing it.

The responding parties also sought their costs.

The court declined to determine the abstract merits of the abandoned motion solely for costs purposes and held that continuing the motion solely to support a costs claim was a waste of court and counsel resources.

No costs were awarded to any party.

Following an unsuccessful motion by certain defendants seeking removal of the plaintiff’s counsel from the record, the plaintiff sought costs.

The plaintiff requested substantial indemnity costs alleging the motion contained meritless allegations and misstatements of fact amounting to reprehensible conduct.

The court found the motion lacked merit and was ill‑conceived but declined to characterize the conduct as reprehensible.

The court held that reasonably generous partial indemnity costs were appropriate in the circumstances and fixed costs accordingly.

The plaintiff sought specific performance of an alleged oral agreement granting him a 10% equity interest in a startup company in exchange for his work.

In the alternative, he claimed oppression under s. 248 of the Business Corporations Act arising from his termination and the denial of equity.

The court found that no binding oral contract had been formed, emphasizing the absence of contemporaneous documentation and the lack of objective evidence of mutual intention to create legal relations.

The plaintiff therefore failed to establish offer, acceptance, and enforceable agreement.

The court also rejected the oppression claim, holding that the plaintiff was not a shareholder, officer, or director and had no reasonable expectation of equity.

Following dismissal of a motion for summary judgment arising from claims connected to a Ponzi scheme, the court determined the appropriate costs award.

The plaintiffs argued that no costs should be awarded due to the novelty of the factual circumstances, but the court held that novelty alone does not justify departing from the usual rule that costs follow the event.

The defendants sought either substantial indemnity or partial indemnity costs.

The court declined to award substantial indemnity costs, finding the plaintiffs’ litigation strategy unsuccessful but not unreasonable.

Partial indemnity costs were awarded to each defendant, with modest reductions applied to certain claimed amounts.

The plaintiffs and defendants were all victims of a Ponzi scheme orchestrated by an investment advisor.

The plaintiffs, who were late entrants to the scheme, provided bank drafts directly payable to the defendants, who were early entrants, under the mistaken belief they were investing in legitimate bridge financing.

When the scheme collapsed, the plaintiffs sued the defendants for the return of their money, alleging unjust enrichment and mistake of fact.

The plaintiffs brought a consolidated motion for summary judgment.

The court dismissed the motion, finding genuine issues for trial regarding whether the defendants were unjustly enriched or if the payments were made under a mistake of fact, and noting that the novel legal issues and ongoing bankruptcy proceedings required a full trial.