Arnold H. Zweig

This is a costs decision following the dismissal of a removal application and the approval of an interim passing of accounts in an estate matter.

The applicant sought to remove the estate trustee, alleging mismanagement and self-dealing, and objected to 71 items in the estate accounting.

The applicant abandoned all but one claim before hearing, which was settled during the hearing.

The court awarded costs to the estate trustee on a substantial indemnity basis for the removal application and approved increased costs for the passing of accounts application, with the latter to be paid from estate assets.

The decision concerns the administration of the estate of Faina Rogovsky, focusing on the removal of the estate trustee, the passing of accounts, and the determination of trustee compensation.

The court dismissed the application to remove Josef Rogovsky as estate trustee, approved the interim passing of accounts with modifications, and fixed trustee compensation at $32,000 plus HST.

The court also addressed the parties' disputes over loans, asset valuations, and the conduct of the estate administration, emphasizing the need for clarity, prudence, and fairness in estate management.

This application concerned the validity of powers of attorney (POAs) made by an 82-year-old respondent, Larry Alvin Marshall, and whether a guardian of his property and person should be appointed.

The applicants, Shawn Hollinger (Attorney for Personal Care) and MD Private Trust Company (Attorney for Property), sought to invalidate new POAs made in January 2023 that named Mr. Marshall's estranged sons, Thomas and Bryan Marshall, as attorneys.

The court found that Mr. Marshall lacked the requisite capacity to make the 2023 POAs due to significant cognitive impairment and vulnerability to undue influence.

Suspicious circumstances surrounding the preparation and execution of the 2023 POAs shifted the burden of proof to the grantees, which was not met.

Consequently, the 2023 POAs were declared invalid, and the 2022 POAs were affirmed as Mr. Marshall's last valid powers of attorney.

The Court of Appeal for Ontario issued a costs endorsement following a prior decision where an appeal was allowed in part and a motion to quash was dismissed.

The appellant sought full indemnity costs for the appeal, motion to quash, and the application below, citing success on appeal and a mortgage agreement clause.

The respondents sought partial indemnity costs for the appeal and motion to quash, and costs for a successful stay motion and an adjournment caused by the appellant.

The court declined to apply the contractual full indemnity costs provision due to the appellant's moderate success and conduct.

It ordered no costs for the appeal or the motion to quash, reduced the costs payable to the respondents from the application below by 25%, and ordered the appellant to pay the respondents' partial indemnity costs for the stay motion and the adjourned appeal.

The plaintiff sought a declaration of an equitable interest in a residential property and other remedies.

The defendants denied the equitable interest and counterclaimed for rental arrears and damages for delay.

The court found an oral agreement for an equitable interest, which was later superseded by a written "Trust Agreement" settling the interest for a specific amount.

The court also found a valid landlord-tenant relationship.

The plaintiff's claim for the agreed-upon buy-out amount was granted, but not for a continuing co-ownership interest.

The defendants' counterclaim for rental arrears was granted in part, but damages for delay were dismissed due to shared responsibility for the delay.

The defendants brought a preliminary motion at trial seeking declarations that the plaintiff's claims were barred by issue estoppel based on prior findings of the Landlord and Tenant Board (LTB).

The plaintiff claimed an equitable interest and co-ownership in a residential property, while the LTB had previously found him to be a tenant and ordered his eviction.

The Superior Court dismissed the motion, finding that the LTB had no jurisdiction to determine equitable rights of ownership, and therefore the issues before the court were distinct from those decided by the LTB.

The appellant sought to appeal the dismissal of his summary judgment motion regarding fraudulent conveyances.

The motion judge had dismissed the motion on the basis that the underlying debt was discharged in bankruptcy and the appellant had failed to follow the correct procedure under the Bankruptcy and Insolvency Act.

The Court of Appeal quashed the appeal, finding that the motion judge's order was interlocutory because it did not determine the substantive rights of the parties.

Therefore, the appeal properly lies to the Divisional Court with leave.

This endorsement clarifies that the presiding judge is not seized of the plaintiff's intended motion to pursue personal causes of action, following a successful partial summary judgment motion and subsequent appeal.

The judge explains that his previous decision was final and that he has since been assigned to the Criminal division.

The parties are advised to obtain a new hearing date for the motion from the Civil Practice Court (CPC) or pursue the Fraudulent Conveyances Act claim through the bankruptcy court.

The defendant York Medical Group moved for security for costs against the plaintiff Proxema Ltd. under Rule 56.01(1)(d) of the Rules of Civil Procedure, requiring leave under s. 67(2) of the Construction Lien Act.

The court granted leave, finding the motion necessary due to Proxema's precarious financial position and its role as a nominal plaintiff pursuing litigation for the benefit of solvent subtrades.

The court determined that Proxema was a "shell corporation" with insufficient assets to cover a costs award.

Balancing the interests of preventing risk-free litigation by insolvent plaintiffs and avoiding prohibitive orders, and considering the existence of a counterclaim, the court ordered Proxema to pay $50,000 into court as security for costs, drawing an analogy to the $50,000 limit in s. 44(1)(d) of the Construction Lien Act for vacating a lien.

Supplementary reasons regarding costs following two interlocutory motions: the plaintiff's motion for preservation of funds and the defendant's motion for security for costs.

The court found that success was divided on both motions and ordered no costs.

The court also declined the defendant's request to reserve costs to the trial judge, emphasizing the policy objective under Rule 57.03 that costs of contested motions should be determined at the time of the hearing.

In a commercial tenancy dispute arising from lease agreements and a rezoning arrangement for property intended to be used as a hotel, the plaintiff moved under Rule 45.02 of the Rules of Civil Procedure for an order preserving funds paid to the defendant.

The defendant brought a cross‑motion seeking security for costs under Rule 56.01(1)(d), arguing the plaintiff corporation lacked assets in Ontario.

The court held that the $200,000 security deposit constituted a specific fund tied to the litigation and ordered it preserved by payment into court, but declined to extend preservation to advance rent or rezoning contributions, which were characterized as damages claims.

The court also granted the defendant’s motion for security for costs, finding the plaintiff had insufficient assets in Ontario and had not shown a good chance of success to avoid such an order.

The quantum of security for costs was fixed at $15,000 through the end of oral discovery.

In a commercial tenancy dispute arising from lease agreements and a rezoning arrangement for property intended to be used as a hotel, the plaintiff moved under Rule 45.02 of the Rules of Civil Procedure for an order preserving funds paid to the defendant.

The defendant brought a cross‑motion seeking security for costs under Rule 56.01(1)(d), arguing the plaintiff corporation lacked assets in Ontario.

The court held that the $200,000 security deposit constituted a specific fund tied to the litigation and ordered it preserved by payment into court, but declined to extend preservation to advance rent or rezoning contributions, which were characterized as damages claims.

The court also granted the defendant’s motion for security for costs, finding the plaintiff had insufficient assets in Ontario and had not shown a good chance of success to avoid such an order.

The quantum of security for costs was fixed at $15,000 through the end of oral discovery.

The plaintiffs agreed to purchase a commercial property from the defendants, intending to use the entire space as a restaurant.

The plaintiffs refused to close the transaction after discovering zoning restrictions limited restaurant use to half the space.

They sued for the return of their deposit and damages, alleging the vendor made oral representations and a collateral agreement guaranteeing the zoning and promising to return the deposit if issues arose.

The vendor counterclaimed for breach of contract.

The court dismissed the plaintiffs' claims, finding they did not reasonably rely on the vendor's representations and that the written agreement expressly excluded collateral agreements.

The vendor's counterclaim was allowed, and damages were awarded based on the property's subsequent sale by the mortgagee.

The plaintiffs brought a $10 million solicitor negligence action against their former lawyers arising from legal services provided during a shareholder dispute and mediation leading to a buyout of the plaintiffs’ interest in a shoe business.

They alleged the lawyers forced them into a sale, misrepresented valuation implications, failed to protect a purported 50% ownership interest, and negligently advised bringing an unsuccessful motion to set aside a mediated agreement.

The court rejected the allegations, finding the plaintiff was a sophisticated businessperson who actively participated in negotiations, reviewed drafts, and instructed counsel throughout.

The evidence showed the mediated agreement was knowingly entered into as a binding agreement with a reasonable valuation date and arbitration mechanism.

The court held the defendants met the standard of care of a reasonably competent lawyer and that any strategic decisions fell within a reasonable range of professional judgment.

A franchisee sought rescission of a franchise agreement and damages under the Arthur Wishart Act (Franchise Disclosure), alleging inadequate disclosure by the franchisor in connection with the purchase of an existing franchise from a third party.

The franchisor argued that the statutory disclosure obligation did not apply because the grant of the franchise was not effected by or through the franchisor.

The court held that determining whether the statutory exemption applied depended on factual findings and credibility assessments regarding the franchisor’s level of involvement in the resale transaction and the adequacy of disclosure.

Given these disputed material facts, the application procedure was inappropriate.

The court therefore converted the application into an action so that the issues could be resolved at trial.

Following a trial in a franchise-related commercial dispute, the successful plaintiffs sought partial indemnity costs prior to a Rule 49 offer and substantial indemnity costs thereafter.

The defendants did not dispute entitlement but challenged the amount claimed as disproportionate and argued for an offset based on their partial success on a counterclaim.

The court applied the factors in Rule 57.01 of the Rules of Civil Procedure and s.131 of the Courts of Justice Act, adjusting hourly rates and reducing the hours claimed as excessive in light of proportionality.

Further reductions were made relating to certain motions and a set‑off was applied for the defendants’ limited success on the counterclaim.

Costs were fixed for the plaintiffs with disbursements, reflecting both proportionality and the consequences of the Rule 49 offer.

The plaintiffs, a taxi company and one of its shareholders, brought a motion for an interim interlocutory injunction against the defendant, another shareholder.

The plaintiffs sought delivery of the business telephone number and an order restraining the defendant from disposing of corporate assets.

Applying the RJR-MacDonald test, the court found there was a serious issue to be tried but concluded the plaintiffs failed to establish irreparable harm, as damages could be quantified.

The court also found the balance of convenience favoured refusing the injunction.

The motion was dismissed with costs awarded to the defendant.

Franchisees sought rescission and damages under the Arthur Wishart Act after renewing a coffee shop franchise.

The franchisor negotiated a separate lease amendment with the landlord that shortened the lease term but deliberately withheld that information while inducing the franchisees to continue operating and sign a renewal letter.

The court held that the renewal created a new franchise agreement requiring disclosure, and the nondisclosure of the shortened lease term was a material omission tantamount to no disclosure.

The franchisees validly rescinded within the two‑year statutory period and were entitled to repayment of amounts paid to the franchisor and its associate, including rent and related expenses, as well as damages for breach of the duty of fair dealing.