Ari A. Lokshin

The Court of Appeal for Ontario allowed both the appeal and cross-appeal, setting aside the case conference judge’s order in its entirety.

The court found that the case conference judge exceeded his authority under the Rules of Civil Procedure and failed to provide adequate reasons or an evidentiary record to support his decision regarding the existence and terms of a settlement.

The lack of intelligible reasons and evidentiary basis precluded meaningful appellate review.

The plaintiff, 1438767 Ontario Inc., and the defendant, The Bank of Nova Scotia (BNS), brought motions for summary judgment against Christina Giovinazzo, a former employee of the plaintiff.

Giovinazzo, acting as bookkeeper and office manager, perpetrated a fraudulent scheme from June 2014 to January 2021, creating fictitious payables and depositing $279,409.55 of the plaintiff's funds into her personal BNS account.

The plaintiff sought damages for civil fraud, conversion, and unjust enrichment, as well as punitive damages.

BNS sought damages on its crossclaim after settling with the plaintiff for $250,000.

Giovinazzo did not respond to the motions or attend the hearing.

The court found Giovinazzo liable for civil fraud, conversion, and unjust enrichment, awarding damages to the plaintiff for the remaining balance and to BNS for its settlement amount.

Punitive damages were awarded to the plaintiff, and the judgments were declared to survive bankruptcy under s. 178(1) of the Bankruptcy and Insolvency Act due to Giovinazzo's fiduciary capacity.

Substantial indemnity costs were also awarded to the plaintiff and BNS.

The plaintiff, a consultant, brought a motion for default judgment against the defendant for unpaid fees related to securing debt capital financing.

The parties had an agreement for a 10% fee on amounts raised through the plaintiff's introductions.

The defendant obtained $2,000,000 in financing but failed to pay the agreed-upon fees and was noted in default.

The court applied the test for default judgment, finding the plaintiff established liability based on deemed admissions and affidavit evidence.

The plaintiff was awarded damages for the loss of bargain, pre-judgment interest, costs, and post-judgment interest.

The plaintiffs, purchasers of condominium units, sought a Certificate of Pending Litigation (CPL) against the project lands after rescinding their Agreements of Purchase and Sale (APSs) under the Condominium Act and demanding the return of their deposits.

The defendants refused, relying on terms in prior Reservation Agreements.

The court found a triable issue regarding the plaintiffs' claim to a constructive trust in the lands, given the defendants' use of deposit funds and uncertain solvency.

The court also determined that the APS clause prohibiting registration did not bar the CPL, as the rescission rendered the APS void and the CPL was sought on constructive trust grounds.

The motion for a CPL was granted.

The plaintiff and defendant were neighbours involved in a long-standing dispute that culminated in a physical altercation.

The plaintiff sued for assault, battery, and intentional infliction of mental suffering.

The court found that the plaintiff was the aggressor and that the defendant's actions were justified as self-defence, as the force used was reasonably necessary and proportionate.

The plaintiff's action was dismissed, though damages were provisionally assessed.

The applicants, a chiropractic business, sought urgent relief after receiving a Notice to Terminate their commercial lease from the respondent landlord.

The core issue was whether the applicants had validly exercised their second five-year option to renew the lease.

The court found that despite the lack of a formal lease document and some irregularities, the applicants had provided timely notice of their intent to renew, and the landlord's subsequent conduct, including rent negotiations, indicated acceptance.

The court concluded the lease was in effect and properly extended.

The plaintiff vendor and defendant purchaser entered into an agreement of purchase and sale for a residential property.

On the scheduled closing date, the purchaser advised she could not close due to lack of financing.

The vendor sent a letter stating this was an anticipatory breach and, unless they heard otherwise by end of day, would declare the agreement null and void and forfeit the deposit.

The purchaser's daughter confirmed the lack of financing.

The vendor subsequently resold the property at a loss and sued for damages.

The court found the vendor clearly and unequivocally accepted the anticipatory breach through its letter and subsequent conduct, entitling it to forfeiture of the deposit and damages for the resale loss.

The defendant brought a motion to amend its Statement of Defence to explicitly plead self-defence, after all evidence had been heard at trial but before final submissions.

The plaintiff opposed, arguing prejudice due to a new theory and lack of opportunity for cross-examination or recalling experts.

The court granted the motion, finding that the plaintiff was not prejudiced as the issue of self-defence had been inferentially raised in the original pleading, explicitly stated in the pre-trial memo, and discussed in the defendant's opening statement and during cross-examination of the defendant.

The court concluded that the plaintiff's counsel was well aware of the defence throughout the proceedings.

Following a successful summary judgment motion for the plaintiffs, the court addressed the issue of costs.

The plaintiffs sought partial indemnity costs of $42,696.31, while the defendant proposed no more than $24,467.76.

The court found that offers exchanged did not trigger specific cost consequences under the Rules.

The court disallowed certain fees claimed by the plaintiffs, specifically those related to duplication from a change in law firms and an unnecessary outside legal opinion, deeming them not reasonably recoverable from the losing party.

After reviewing the bills of costs and considering the complexity of the matter, the court determined that 85 hours at $297.50/hour, plus disbursements, was reasonable.

The plaintiffs were awarded costs in the amount of $28,382.53.

The plaintiffs sought summary judgment against the defendant for a defaulted $250,000 mortgage.

The court granted judgment for the principal debt, nine missed payments, and an additional three months of interest under Section 17 of the Mortgages Act, totaling $274,999.96.

Pre-judgment interest was awarded at the statutory rate of 2% per annum, and post-judgment interest at 3% per annum.

The court dismissed claims for higher contractual interest rates, service fees, legal fees without proper proof, a writ of possession, and possession as chargee/mortgagee.

The decision also addressed the problematic nature of lawyer affidavits based on file review in summary judgment motions.

Costs were fixed at $9,000.00 for the plaintiffs.

In a personal injury claim arising from an alleged assault, the defendant sought to introduce eight surveillance videos of the plaintiff.

The plaintiff opposed, arguing irrelevance and the tort of intrusion upon seclusion.

The court admitted three videos (#1, #5, and #8), finding them relevant to the toxic relationship between the parties, the plaintiff's credibility, and the contextual circumstances leading to the alleged assault.

The remaining five videos were excluded due to lack of relevance.

The court also determined that the admitted videos did not constitute the tort of intrusion upon seclusion, as there was no reasonable expectation of privacy for actions directed at the defendant's home or observable by other neighbours.

Carole Farah brought a motion to set aside default judgment and a noting in default, along with a Writ of Seizure and Sale, arguing she was not personally liable on a promissory note signed on behalf of a corporation.

The court granted the motion, finding that Farah moved promptly, had a plausible explanation for default, and raised an arguable defence regarding corporate versus personal liability.

The court also noted the plaintiff's failure to disclose Farah's personal email address during the substituted service application.

The default judgment, noting in default, and all executions against Farah were set aside, and costs were awarded to Farah.

This costs endorsement followed a successful summary judgment motion brought by the defendant Gerlandina Jones, which dismissed the plaintiff's claim as statute-barred.

The court considered Rule 57.01 factors and Rule 49 offers.

It determined that a defendant moving for summary judgment should be treated as a plaintiff for Rule 49 purposes.

The defendant was awarded costs on a partial indemnity basis up to the date of her Rule 49 offer and on a substantial indemnity basis thereafter, totaling $25,000 plus HST and $6,376.22 in disbursements.

The defendants brought an urgent motion to set aside a default judgment and writ of possession obtained by the plaintiffs after the defendants defaulted on their mortgage.

The court applied the five-part test for setting aside a default judgment.

While the defendants had a plausible excuse for their delay, the court found they had no arguable defence on the merits, as the interest calculations were standard and the three-month interest penalty was valid.

The motion was dismissed, though the default judgment was varied on consent to remove $1,875 in administrative fees.