Arnie Herschorn

The moving party defendants sought an extension of time to deliver their Notice of Appeal from a trial decision finding personal liability for fraudulent misrepresentation in connection with a real estate investment.

The motion judge applied the well-settled test for extensions of time, focusing on the merits of the proposed appeal as the central issue.

The moving parties failed to identify any error of law or palpable and overriding error of fact in the trial judge's findings, which included adverse credibility findings based on the failure to call a key witness and the failure to preserve business records.

The motion was denied with costs.

The plaintiffs, Robert Salna and North Lake Estates Inc., brought a partial summary judgment motion seeking a declaration that a partnership existed with the defendants, 741980 Ontario Limited and Enzo Risi, for building houses.

The defendants brought a cross-motion to dismiss the claim as statute-barred.

The court found that a partnership existed based on a written agreement, admissions in pleadings and affidavits, and the parties' conduct.

The court also determined that the plaintiffs' claim was not statute-barred, applying sections 5(1)(a)(iv) and 11 of the Limitations Act, 2002, due to ongoing efforts to resolve the accounting dispute with the assistance of a third-party accountant.

The remaining issues regarding the partnership terms, misappropriations, and final accounting were reserved for further summary judgment proceedings.

This endorsement addresses a partial summary judgment motion where the court, following the Court of Appeal's decision in Co-Operators General Insurance et al., requested submissions on the appropriateness of partial summary judgment.

Due to conflicting affidavits regarding an alleged agreement to engage an accountant for partnership profit accounting and a promise to pay, and issues of access to partnership documents and potential estoppel related to the limitation period, the court found significant credibility issues.

Consequently, a mini-trial was ordered to resolve these factual disputes, including the applicability of section 11 of the Limitations Act.

The moving defendants sought to dismiss or stay the action because the plaintiff failed to immediately disclose a settlement agreement reached with a co-defendant.

The court found that the settlement did not fundamentally change the litigation landscape, as it was a simple release without costs and did not involve the settling defendant switching sides or cooperating with the plaintiff.

Furthermore, the moving defendants had not asserted cross-claims against the settling defendant before the limitation period expired.

The motion was dismissed.

This is a costs endorsement from the Court of Appeal for Ontario.

In accordance with an agreement between the parties, the appellants were ordered to pay costs to the respondents, Mandeep Dhatt and Kulwinder Dhatt, fixed at $8,200, and to the third party respondents, Jay Brijpaul and Re/Max West Realty Inc., Brokerage, fixed at $6,700.

Both amounts were inclusive of disbursements and applicable taxes.

The purchase price under the agreement of purchase and sale dated January 22, 2016, was to be reduced by the amount of these costs.

The Court of Appeal for Ontario dismissed an appeal brought by the defendants (appellants) challenging a trial judge's decision to grant specific performance of a real estate agreement and award substantial indemnity costs.

The appellants argued the trial judge erred in refusing multiple adjournment requests, including those based on medical grounds, and in granting specific performance for a property they claimed was not unique.

The Court found no error in the trial judge's exercise of discretion regarding adjournments, citing the appellants' history of non-compliance with court orders and lack of diligence.

It also affirmed that specific performance is not an "extraordinary remedy" and that the trial judge correctly applied the factors for its award, including the property's unique qualities and the inadequacy of damages.

The substantial indemnity costs award was also upheld due to the appellants' litigation misconduct.

The moving intervenor, a law firm holding writs of execution for unpaid legal fees against the defendants, moved to set aside a trial judgment that granted the plaintiffs specific performance of an agreement of purchase and sale.

The plaintiffs cross-moved for a declaration that the law firm's writs, registered after the agreement was signed, did not bind the land.

The court dismissed the law firm's motion, finding it lacked standing as an unsecured creditor to reopen the trial under Rule 52.01(3).

The court granted the plaintiffs' cross-motion, declaring that upon signing the agreement, the vendors conveyed equitable title, and subsequent writs of execution could not attach to the purchasers' equitable interest.

The plaintiffs sought specific performance of an Agreement of Purchase and Sale for a residential property, or damages in the alternative, after the defendants refused to close the transaction.

The defendants argued the agreement was invalid and brought a third-party claim for collusion against their real estate agent and brokerage.

The defendants failed to attend trial despite court orders.

The court found the property unique to the plaintiffs' multi-generational family needs and determined that damages would be an inadequate remedy due to the defendants' financial inability to pay.

Specific performance was granted to the plaintiffs, and the third-party claim was dismissed due to lack of evidence.

Substantial indemnity costs were awarded against the defendants.

The defendants brought a motion for summary judgment in an action alleging fraudulent conveyance.

The plaintiffs claimed that one defendant transferred her interest in a property to the other defendant to avoid a judgment in a separate fraud action.

The defendants argued the transfer was part of a family law settlement.

The court dismissed the motion for summary judgment, finding that there were genuine issues requiring a trial, particularly due to conflicting evidence and significant credibility issues regarding the transfer's purpose, the stated consideration, and the defendants' knowledge of the ongoing litigation.

The plaintiff tenant moved for an injunction or relief from forfeiture after the defendant landlord terminated its commercial lease for non-payment of rent.

The tenant had a history of late payments, and its rent cheque was returned due to a frozen bank account.

The premises had also suffered two floods, and the tenant had ignored fire code violations.

The court denied the injunction but granted relief from forfeiture, noting the disproportionate impact termination would have on the tenant's investment.

Relief was granted on strict conditions, including payment of all rent arrears, expenses, and full indemnity costs.

The plaintiffs brought a motion seeking to disqualify Minden Gross LLP as counsel for the corporate defendant Synoptic Medical Assessments Inc. (SMAI) due to an alleged conflict of interest involving lawyer A. Irvin Schein.

The plaintiffs asserted that Mr. Schein had a prior solicitor-client relationship with plaintiff Mina Bechai and that his continued representation of SMAI, while also acting for Dr. Hanna (a director and shareholder of SMAI and an adverse party in a shareholder dispute), created a disqualifying conflict.

The court dismissed the motion, finding that the plaintiffs failed to establish a prior solicitor-client relationship between Bechai and Schein, or that any confidential information relevant to the current matter was exchanged.

The court also found no evidentiary support for other alleged conflicts and affirmed the director's right to instruct corporate counsel.

Zenex Enterprises Limited ("Zenex") sought a declaration that its leases with Promenade Limited Partnership ("Promenade") were valid and in good standing, or in the alternative, relief against forfeiture under the Commercial Tenancies Act.

The court found Promenade's notice of default invalid due to improper claims of lease breaches and Zenex having remedied any alleged breaches.

However, the court also found that Promenade's notices of termination, issued under a mutual termination right in the leases, were valid.

Relief against forfeiture was not granted for these terminations as they were based on a contractual right, not a breach.

The application was dismissed.

Following the unopposed dismissal of an action claiming $35 million for fraud and conspiracy, the successful defendants and third parties sought their costs.

The court found that the plaintiffs' unsubstantiated allegations of fraud were advanced recklessly, entitling the primary defendants to costs on an elevated scale.

The court awarded the primary defendants $426,055.56 (splitting the difference between partial and substantial indemnity) and awarded the third parties their full claimed partial indemnity costs of $102,980.59.

Following a decision with divided success, the applicant sought costs based on three unaccepted offers to settle.

The respondent argued the claimed amount was excessive and noted duplication of effort due to a change of solicitors.

The court agreed with the respondent's submissions on quantum but applied Rule 49.10, awarding the applicant partial indemnity costs up to the date of its final offer and substantial indemnity costs thereafter, fixing total costs at $13,501.01.

The applicant developer sought reimbursement of $79,560 in HST from the respondent condominium corporation for four units the corporation was required to purchase.

The corporation brought a cross-application arguing the disclosure statement was misleading and sought damages for oppression due to the developer's conduct during refinancing.

The court found the disclosure statement's reference to 'plus all applicable taxes' was sufficient and ordered the corporation to pay the HST.

However, the court also found the developer's conduct during refinancing warranted sanction and ordered it to pay the corporation's additional legal costs of $20,597.90 as a set-off.

This decision addresses the determination of costs following a one-day trial where the Plaintiffs were awarded judgment against the Hicks Defendants.

Both parties sought costs, with the Plaintiffs claiming $64,325 and the Hicks Defendants claiming substantial indemnity costs from the date of their 2015 offer to settle.

The court considered multiple offers to settle, finding the Hicks Defendants' 2015 offer rescinded by a subsequent 2016 offer and invalid due to a material error.

Applying Rule 49.10 and Rule 57.01(1) of the Rules of Civil Procedure, the court awarded the Hicks Defendants partial indemnity costs of $10,000 from May 12, 2016.

The Plaintiffs were awarded $7,500 for Ezzat F. Gindi's self-representation costs and $11,000 for legal fees incurred.

After offsetting, the Hicks Defendants were ordered to pay the Plaintiffs a net sum of $8,500, inclusive of disbursements and HST.

The plaintiffs brought an action against their former solicitors (Hicks Defendants) for professional negligence, alleging that the solicitors missed a limitation period for an action against previous solicitors (Arnone Defendants) concerning the purchase of contaminated land.

The Hicks Defendants admitted liability for the missed limitation period, and the trial proceeded solely to assess the plaintiffs' damages.

The court awarded damages for environmental remediation costs and a nominal amount for the inconvenience of managing the remediation, totaling $57,712.31.

However, claims for loss of property value, real estate commission on a failed sale, roof replacement costs, excess mortgage interest, and mental distress were dismissed due to lack of expert evidence, legal prohibitions (for commission), or being deemed not reasonably foreseeable consequences of the negligence.

The applicant subtenant sought an interlocutory injunction to restrain the respondent sublandlord from terminating a commercial sublease.

The respondent had issued a notice of termination after police searched the premises and laid criminal charges against the sons of the applicant's operators.

Applying the RJR-MacDonald test, the court found a serious issue to be tried, irreparable harm if the applicant was evicted, and that the balance of convenience favoured the applicant, who had $1.5 million in inventory and was current on rent.

The court granted the injunction, allowing the applicant supervised access pending the main application.

Following a lengthy commercial dispute involving allegations of breach of fiduciary duty, conspiracy, misuse of confidential information, wrongful dismissal, and fraudulent conveyances, the court determined the allocation and scale of costs arising from two trials and related proceedings.

The litigation involved numerous parties and mixed results, with certain defendants fully successful and others partially liable.

The court concluded that the complexity of the litigation and the magnitude of the claimed costs warranted referral of most quantification issues to an assessment officer under Rule 58 of the Rules of Civil Procedure.

Substantial indemnity costs were awarded in several instances, including where unproven allegations of fraud or serious misconduct had been advanced, while partial indemnity costs applied to others depending on conduct and settlement offers.

The court also considered the appropriateness of Bullock and Sanderson orders in allocating responsibility among defendants.