Antony Trevor Niksich

The appellant, Bijan Naghshbandi, appealed judgments from two actions where he was ordered to repay significant debts to Shahram Heidari and Tarra Engineering Inc. The appeal raised five grounds: that the trial judge introduced a new theory of liability (joint investment), failed to provide adequate reasons for liability, did not apply a claimed credit, misstated the test for an oppression action, and erred in relying on unreliable witness testimony regarding a share transfer.

The Court of Appeal dismissed all grounds, upholding the trial judge's findings, particularly on credibility, and confirming the debts owed.

The plaintiff condominium corporation brought a motion for an interlocutory compliance order and restraining orders against a unit owner and its principals/agents.

The plaintiff alleged that the defendants engaged in a multi-year pattern of threatening, abusive, and harassing behaviour towards the board of directors, property management, and other unit owners, including threats of litigation and physical intimidation.

The court found that the defendants' conduct violated section 117 of the Condominium Act, constituted workplace harassment under the Occupational Health and Safety Act, and was oppressive under section 135 of the Condominium Act.

The court granted interlocutory orders restraining the defendants from further harassment and from soliciting proxies.

The applicant was wholly successful on a motion to strike the respondent's Notice of Objection under the Repair and Storage Liens Act and sought substantial indemnity costs.

The respondent argued costs should be reserved to the trial judge.

The court found no reason to defer costs, as the respondent had obstructed the statutory process.

However, the court awarded partial indemnity costs of $20,212.04, finding the respondent's conduct did not meet the threshold for substantial indemnity.

The applicant brought a motion to strike the respondent's Notice of Objection under the Repair and Storage Liens Act (RSLA) and for the return of a customized truck.

The respondent argued the RSLA did not apply because its work constituted manufacturing a new vehicle, not repairing an existing one, and claimed an additional $150,000 for estimated export costs.

The court found the work constituted a 'repair' under the RSLA and that the respondent had attorned to the RSLA process.

The court struck the Notice of Objection as an abuse of process because the additional costs claimed were not for repair or storage, and ordered the return of the vehicle.

The moving parties (respondents on appeal) brought a motion for security for costs of the appeals under rule 61.06(1) of the Rules of Civil Procedure.

The underlying trial involved claims of unpaid loans and joint investments, which the trial judge resolved in favour of the moving parties based largely on credibility findings.

The motion judge found that while the appeals were weakly arguable, they were not frivolous or vexatious, as the responding party raised a potential error of law regarding the characterization of the payments.

Furthermore, the responding party provided evidence of sufficient income in Ontario, and there was no 'other good reason' such as fraud or hidden assets to justify the order.

The motion for security for costs was dismissed.

The defendants brought a motion to dismiss the plaintiff's action for negligence and breach of contract, arguing that it was barred by the principles of res judicata, collateral attack, and/or abuse of process.

This argument was based on a prior Small Claims Court default judgment obtained by one of the defendants against the plaintiff for unpaid invoices.

The court dismissed the defendants' motion, finding that section 107 of the Courts of Justice Act prevented the application of res judicata in these coincident actions.

Furthermore, the court determined that the parties were not identical in both proceedings, and the issues in the Superior Court action (negligence and breach of contract) were distinct from the Small Claims Court action (unpaid invoices) and not fundamental to the default judgment.

The court also concluded that the action was neither a collateral attack on the Small Claims Court judgment nor an abuse of process, as the Ontario Racing Commission investigation was not a prior legal proceeding.

The appellant appealed a Master's order granting the respondent leave to amend his Statement of Defence and Counterclaim to add the appellant as a defendant by counterclaim.

The appellant argued the Master erred in granting leave after the action was set down for trial, in her application of the discoverability principles under the Limitations Act, 2002, and in finding the respondent had standing to bring an oppression claim.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error or error of law in the Master's decision to allow the amendments and add the appellant as a party.

The defendants moved for dismissal of the action under Rule 20, while the plaintiff opposed and sought judgment against the individual defendant and a newly incorporated entity, relying on the oppression remedy under the Ontario Business Corporations Act.

The court found that the individual defendant, after obtaining a default judgment against his initial corporation, ceased its commercial activity and transferred its goodwill and operations to a new corporation he solely directed, without satisfying the judgment.

The court applied the oppression remedy, concluding that the individual defendant abandoned the best interests of the previous corporation in favour of his own, thereby unfairly disregarding the plaintiff's interests as a creditor.

The defendant/plaintiff by counterclaim, Bijan Naghshbandi, sought leave to amend his statement of defence and counterclaim to add Tarra Engineering and Structural Consultants Inc. (TESC) as a defendant by counterclaim and to add claims for monetary damages.

The motion required leave under Rule 48.04 as the action had been set down for trial.

The court granted leave, finding a substantial and unexpected change in circumstances due to late production of financial records.

The court also allowed most proposed amendments, including claims for a declaration of ownership interest in Tarra Inc. and TESC, successor corporation status, oppression remedy under the OBCA, and fraud.

However, claims for breach of contract, inducement to breach contract, and unjust enrichment related to unpaid salary and management fees against TESC were denied as untenable.

TESC was granted leave to plead a limitations defence.

Costs were awarded to Naghshbandi, fixed at $8,000, payable equally by the opposing parties.

The plaintiff landlord sued the defendant mutual fund dealers for inducing breach of contract, intentional interference with economic relations, and unjust enrichment after the defendants acquired the book of business of the plaintiff's tenant, who subsequently defaulted on its lease and went bankrupt.

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

The court granted the motion, finding that the defendants did not intend to procure a breach of the lease, did not engage in unlawful conduct targeting the plaintiff, and that the bankruptcy process provided a juristic reason for any enrichment.

The action was dismissed with costs awarded to the defendants on a partial indemnity scale.

Following the dismissal of the defendants' motion to set aside a default judgment, the plaintiff sought costs of $9,975.65 on a partial indemnity scale.

The defendants argued the legal fees claimed were excessive and unreasonable, noting the plaintiff's lawyer spent twice as much time on the matter.

The court disagreed, finding the costs claimed to be fair, reasonable, and within the defendants' reasonable expectations.

Costs were awarded to the plaintiff in the requested amount.

The moving defendants sought to set aside an order striking their statement of defence and counterclaim, and a subsequent default judgment arising from repeated non-compliance with documentary disclosure obligations and other procedural defaults in a commercial lease action.

The court held that relief was unavailable under rr. 37.14 and 59.06 because the evidence did not establish insufficient notice, accident, mistake, fraud, or newly discovered facts.

Applying the default judgment framework, the court accepted promptness and assumed an arguable defence and counterclaim, but found no plausible excuse for the defaults, found prejudice roughly balanced, and held that setting aside the judgment would adversely affect the integrity of the administration of justice.

The motion was dismissed.

In a wrongful dismissal action under Rule 76, the plaintiff sought additional damages after termination without cause and challenged whether a binding settlement had been reached on termination entitlements.

Applying the objective observer test to the parties’ email exchanges and post-termination conduct, the court found the parties negotiated and finalized a settlement package including notice pay, commissions, extended benefits, and temporary office use.

The court held the employee’s acknowledgment that all terms were agreed, together with acceptance of the negotiated package, confirmed a complete settlement.

Because the settlement had already been performed by the defendants, no further wrongful dismissal damages were recoverable and the action was dismissed, with the defendants entitled to partial indemnity costs.

The plaintiff entered into a contract for job-search services with BH International and paid a fee.

When BH closed its Canadian operations, its former employee, the defendant Smith, started a new job-search agency, RD Group International.

The trial judge found RD and Smith liable to refund the plaintiff's fee, concluding RD was a successor to BH based on a memorandum sent to clients.

On appeal, the Divisional Court set aside the judgment, finding a palpable and overriding error as the memorandum provided no evidence of successor liability or assumption of contracts, and there were no grounds to pierce the corporate veil to hold Smith personally liable.