Arnold H. Zweig

Following a trial in a construction lien and breach of contract action with a divided result, the court determined the costs and prejudgment interest.

The plaintiff was marginally successful but had its costs significantly reduced due to the divided result, an exaggerated lien claim, and a reasonable offer to settle by the defendant.

The plaintiff was awarded $15,000 in partial indemnity costs, including a portion of its expert's fees.

Prejudgment interest was awarded at 3% per annum from the date the primary invoice was due.

The plaintiff contractor brought a construction lien action for unpaid invoices and extras related to a balcony repair project.

The defendant owner counterclaimed for delay costs and defective workmanship, including undersized balconies and damaged railings.

The court dismissed both parties' delay claims due to a lack of expert evidence and failure to comply with contractual notice provisions.

The court awarded the plaintiff its unpaid invoice, holdback interest, and extras for slab replacement, while granting the defendant partial backcharges for the undersized balconies and damaged railings.

Ultimately, the plaintiff was awarded a net judgment of $44,999.19 and a valid lien.

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 applicants, acting as attorneys under 2022 powers of attorney, sought to invalidate 2023 powers of attorney granted to the respondents (the incapable person's sons) on the basis of incapacity.

At a case conference, the court considered interim arrangements for the incapable person's care and discharge from the hospital.

Finding a strong prima facie case that the 2023 powers of attorney were invalid, the court granted an interlocutory injunction prohibiting the respondents from acting under them, thereby leaving the applicants with exclusive authority to move the incapable person to a private rehabilitation facility pending the final hearing.

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 respondents defaulted on a second mortgage held by the appellant.

Following a fire that rendered the property uninhabitable, the appellant took possession without notice.

The application judge found the appellant did not take 'peaceable possession' and ordered the appellant to return possession, fix the redemption amount, and assign the mortgage to a new lender.

The appellant appealed but failed to comply with the assignment order.

The Court of Appeal held that the application judge erred by applying the criminal law definition of 'peaceable possession' to a mortgage enforcement context.

The Court found the appellant did take peaceable possession because the property was uninhabitable and vacant.

Consequently, the appellant was entitled to property management fees.

However, due to the appellant's failure to comply with court orders, the Court exercised its discretion to uphold the requirement that the appellant assign the mortgage upon payment of the redemption amount.

The plaintiffs challenged the validity of a share transfer agreement entered into between two of the defendants, which resulted in one defendant becoming the majority shareholder of the corporation.

The court applied an objective test to determine the parties' intention to contract and found that the agreement contained all necessary elements of a contract.

The court rejected arguments that the agreement was merely an agreement to agree or that it was invalid due to technical deficiencies under the Business Corporations Act.

The share transfer agreement was declared valid and binding.

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.

The appellant appealed an interim order of the Landlord and Tenant Board terminating his tenancy and evicting him for rent arrears.

The appellant argued the Board lacked jurisdiction because he had commenced a Superior Court action claiming a 50% ownership interest in the property.

The Divisional Court dismissed the appeal, finding the Board had exclusive jurisdiction to determine if the appellant was a tenant and to order eviction, as he was not a registered co-owner and no final court determination of co-ownership existed.

The Court also upheld the Board's refusal to grant an adjournment, finding no denial of procedural fairness where the appellant voluntarily chose not to attend the hearing.

The appellant appealed a final order of the Landlord and Tenant Board terminating his tenancy and evicting him so the landlord could demolish the building.

The appellant argued the Board exceeded its jurisdiction by determining he was not a co-owner of the property, an issue he had raised in a concurrent Superior Court action.

The Divisional Court dismissed the appeal, finding the Board had exclusive jurisdiction to determine if the appellant was a 'tenant' under the Residential Tenancies Act, which required assessing if he occupied the unit as a co-owner.

The Court held the Board's conclusion was reasonable and would not cause a multiplicity of proceedings, as the Board only determined legal ownership for tenancy purposes, leaving the Superior Court to adjudicate the appellant's claim for an equitable interest.

The plaintiff obtained a judgment against the defendant debtor and subsequently brought an action alleging the debtor fraudulently conveyed properties to the other defendants.

The debtor later declared bankruptcy and was discharged.

The plaintiff brought a motion for summary judgment seeking damages against the transferees.

The court dismissed the motion, finding that the plaintiff failed to follow the correct procedure under the Bankruptcy and Insolvency Act, as the claim belonged to the bankruptcy estate and the plaintiff should have pursued remedies in bankruptcy court rather than seeking damages in civil court.

The defendant insurers brought a motion for security for costs against the corporate and individual plaintiffs following a dispute over insurance coverage for a flooded restaurant.

The court dismissed the motion against the individual plaintiff, finding no evidence of his assets and that his claim was not vexatious.

The court also declined to order security for costs against the corporate plaintiff, despite its lack of assets, because the plaintiff alleged its impecuniosity was caused by the defendants' failure to timely pay business interruption insurance proceeds.

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.

The applicant requested hearing accommodations, specifically to testify via videoconference from a separate room due to major depressive disorder and post-traumatic stress disorder allegedly resulting from the personal respondent's actions.

The respondents objected, arguing the disability was not conclusively linked to the allegations and emphasizing the need for in-person testimony for credibility assessment.

The Tribunal granted the accommodation, finding sufficient medical evidence supported the request and noting that the accommodation was required for Code-related needs regardless of whether the allegations were ultimately proven.

The applicant in a human rights proceeding requested orders to amend her application to increase the monetary remedy sought from $50,000 to $200,000, and for hearing accommodations including testifying via video from a separate room and having a support person present.

The respondents requested an adjournment of the hearing.

The Tribunal granted the applicant's requests, finding no prejudice to the respondents in the amendment and sufficient medical evidence to support the accommodations.

The Tribunal denied the respondents' adjournment request, finding no exceptional circumstances to justify delaying the scheduled hearing.