Benjamin Salsberg

The moving party sought leave to register a certificate of pending litigation over residential property in support of a claim arising from an alleged unpaid private loan advanced for construction and improvements.

The court held the asserted restriction on sale pending repayment was purely contractual and did not create a proprietary interest in land.

The claim was characterized as one for debt or damages, not constructive trust, resulting trust, or specific performance.

In the alternative, the court held the equitable factors governing certificates of pending litigation also weighed against relief because damages were an adequate remedy, the amount outstanding remained uncertain, and registration could impede financing needed to complete construction.

The court granted summary judgment in favour of Stacey Lee Crawford, declaring her the owner of her former family home and setting aside a default judgment obtained by Veeru Kantoor.

The decision addresses the validity of a second mortgage registered by Dinesh Khanna and Metro Financial Planning Limited, finding that the mortgage amount was altered without Crawford’s consent and that the business practices of Khanna and Metro were essentially illegal.

The court found that the default judgment and subsequent transfer of the property were tainted by fraud and lack of proper accounting, and ordered the property returned to Crawford, with remaining accounting issues to proceed to trial.

The plaintiff landlord sought summary judgment against the corporate tenant and its individual directors/managers for alleged breaches of a lease agreement.

The court found numerous substantive factual disputes and significant evidentiary gaps, including the validity of a personal guarantee, access to the premises during renovations, the commencement date of rent, property damage, and the circumstances of the tenancy termination.

Due to the fundamental nature of these evidentiary gaps, the court determined that summary judgment was not appropriate and that a full trial was required to resolve the issues.

The Court of Appeal dismissed an appeal summarily as an abuse of process.

The appellant, Donald Hughes, had appealed the dismissal of his motion to vary a default judgment granted in a mortgage action.

The Court of Appeal found that while the order dismissing the motion to vary was a final judgment, making it appealable to the Court of Appeal, the appeal itself constituted an abuse of process due to lengthy and unexplained delay, prejudice to the respondent, and a lack of judicial economy, especially given that the proper venue for disputing the debt was the bankruptcy court.

The plaintiffs brought a motion for an injunction and were unsuccessful.

The successful defendants sought costs of approximately $121,882 on a partial indemnity basis.

The plaintiffs argued the defendants' costs were excessive and suggested an award of $40,000 to $50,000, despite their own partial indemnity costs outline totaling over $172,000.

The court rejected the plaintiffs' argument, finding that the best evidence of reasonable expectations is the opposing side's bill.

The court fixed costs payable to the defendants at $120,000 inclusive of disbursements and HST.

The plaintiffs, Home Coffee Solutions Ltd. and 2079162 Ontario Ltd., sought an interlocutory injunction against the defendants, their former business associates, alleging appropriation of work product, copying product descriptions, customer scooping, breach of fiduciary duties, and irreparable harm in a competing "home coffee solutions" e-commerce business.

The court, applying the RJR-MacDonald test, found that the plaintiffs failed to establish a strong prima facie case, irreparable harm, or that the balance of convenience favored them.

The court noted the lack of non-competition/non-solicitation agreements and the absence of evidence of actual or imminent misuse of confidential customer data, dismissing the motion for an injunction.

Tara Atkinson, a fitness instructor, sued her employers for injuries.

Her minor daughter, Maya Atkinson, also made a Family Law Act claim.

Tara Atkinson settled her personal claim and sought court approval under Rule 7.08 of the Rules of Civil Procedure for the settlement of Maya's derivative claim.

The court found the proposed $5,000 settlement for the minor fair and reasonable, noting that the loss of care and companionship was largely attributable to pre-existing family dynamics rather than the mother's injuries, and the overall settlement reached the defendants' policy limits.

The court approved the settlement for the minor.

This is an appeal from a motion judge's order finding Henia Gefen lacked capacity to manage property or instruct counsel, appointing a litigation guardian and guardian of property, and removing her counsel.

The appellant, Harvey Gefen, challenged the findings of incapacity and the procedural validity of appointing a guardian of property by motion.

The Court of Appeal found no extricable legal error or palpable and overriding error in the motion judge's capacity assessment or the appointment of a neutral guardian.

The court also affirmed that a guardian of property can be appointed by motion within an application, rejecting the argument that a full application process is mandatory, emphasizing the liberal construction of the Rules of Civil Procedure.

The appeal was dismissed with costs.

The moving parties, Henia Gefen and Harvey Gefen, sought a review of a single judge's dismissal of their motions to stay a motion judge's order.

The underlying order had declared Henia Gefen incapable of managing her property and instructing counsel, appointing a litigation guardian.

The Court of Appeal dismissed the review motions, finding no legal error or misapprehension of evidence in the single judge's decision.

The court also addressed costs, fixing Harry Gefen's costs at $5,000 and ordering Ronald B. Moldaver, K.C., Henia Gefen's counsel, to bear personal responsibility for costs related to the review motion he brought on her behalf without authority, disallowing him from charging Henia Gefen for these costs.

This urgent motion was scheduled to be heard but the parties reached a settlement, leading to an adjournment pending implementation.

The plaintiffs also informally requested an order sealing the court file due to personal information, but the court declined to grant it without a formal motion and factum, advising the parties to bring a proper motion if they wished to pursue it.

The Court of Appeal for Ontario heard a motion for a stay of a lower court order pending appeal.

The lower court had appointed a litigation guardian and guardian of property for an incapable 100-year-old individual, removed her counsel, and ordered costs.

The moving parties (the incapable individual and her son) sought to stay this order.

The court applied the three-part test for a stay, finding no serious issue to be tried regarding the incapacity finding or the guardian's appointment, especially given prior findings of unconscionable procurement of assets by the son.

The court also found no irreparable harm would be suffered by denying the stay, as the appointed guardian is accountable to the court.

The balance of convenience favored allowing the lower court's order to take effect.

Consequently, the motion for a stay was dismissed.

The applicant brought a motion seeking declarations that his 99-year-old mother was incapable of managing property and instructing counsel, and seeking the appointment of a litigation guardian and guardian of property.

The court reviewed competing capacity assessments and preferred the assessment finding incapacity, noting the mother's confusion and inability to understand the litigation.

The court appointed a neutral third-party lawyer as litigation guardian and guardian of property, passing over the mother's other son due to extreme family conflict and a prior finding of unconscionable procurement.

The court also ordered the mother's counsel to pay $3,500 in costs personally for taking unreasonable positions and failing to address his client's lack of capacity.

The plaintiffs, collectively known as the "Groves Group," sought summary judgment for an "earn out" payment of $1,333,333.33, plus interest, from the defendant, UTS Consultants Inc. (UTS), under a Share Purchase Agreement.

In the alternative, they sought partial summary judgment for $491,010.83.

UTS argued that genuine issues requiring a trial existed, including a limitation period defense, waiver, and bad faith, and that the evidentiary record was insufficient for summary disposition.

The court dismissed the motion for summary judgment, finding that the plaintiffs failed to demonstrate there were no genuine issues requiring a trial, particularly given the need for credibility assessments and the inadequacy of the documentary evidence.

Partial summary judgment was also deemed inappropriate as it would not shorten the trial or avoid the risk of inconsistent findings.

This is an appeal from a motion judge's decision refusing to set aside a noting of default against the appellants, Jovy's Bar and its owner.

The appellants were noted in default in 2014 after failing to file a statement of defence following a 2011 assault incident.

The motion judge found significant, unexplained delays and rejected the appellants' justification of erroneous legal advice.

The Court of Appeal upheld the motion judge's discretionary decision, finding no misdirection or clear error.

While acknowledging an arguable defence, the court emphasized the appellants' strategic decision not to defend and the non-compensable prejudice to the respondents due to the extensive delay and loss of evidence.

The appeal was dismissed with costs.

The plaintiffs, residential tenants of a luxury property, sought an interim injunction to regain possession after the defendant landlords unilaterally terminated the tenancy, changed the locks, and moved back in.

The plaintiffs had been absent from the property since December 2020 due to the pandemic.

The court applied the RJR-MacDonald test and dismissed the motion, finding that while there was a serious issue to be tried, the plaintiffs would not suffer irreparable harm as the corporate plaintiff could operate elsewhere and the individual plaintiff remained abroad.

The balance of convenience favoured the landlords, who could better maintain the property pending resolution of the disputes before the Landlord and Tenant Board.

The Landlord appealed an order granting relief from forfeiture to the Tenant, who failed to provide timely notice to renew a lease.

The application judge found the Tenant made diligent efforts to renew and that the Landlord "studiously avoided" contact, motivated by racial stereotyping.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's factual findings or the exercise of discretion, including the relevance of anti-Black racism in the Landlord's refusal to negotiate.

The appellant, Gerard Lee, former CEO of Lalu Canada Inc., appealed the dismissal of his application for advance funding of legal costs to defend a fraud action.

The application judge denied funding, finding a strong prima facie case of fraud against Lee regarding "acquisition fees" he had received.

The Court of Appeal dismissed the appeal, upholding the application judge's interpretation of the consulting agreement and assessment of evidence regarding concealment.

The court also affirmed the application judge's application of the "strong prima facie case" test for denying advance funding, finding it commensurate with the stringent standard required.

The appellants appealed a Superior Court decision granting the condominium corporation an order to enter and inspect a unit following a complaint about noise emanating from the staircase.

The appellants denied entry and issued a trespass notice.

The appellants raised seven grounds of appeal in their factum but narrowed their argument at hearing to a single contention that there was no evidentiary basis for the condominium board to carry out an inspection.

The Court of Appeal dismissed the appeal, finding that the condominium corporation had a right and duty under the Condominium Act to ensure compliance with legislation and to inspect the unit to gather information about the nature and extent of the suspected problem.

The plaintiff brought a motion to set aside the dismissal of an action arising from Minutes of Settlement regarding a failed partnership investment.

The settlement required arbitration to conclude by March 31, 2012, but the parties continued to negotiate and schedule arbitration dates well past this deadline.

When the defendants retained new counsel in 2016, they argued the arbitrator was not properly appointed and the deadline had passed.

The court applied the doctrine of promissory estoppel, finding the defendants' conduct impliedly promised not to rely on the strict limitation period.

The motion was granted, the dismissal was set aside, and partial indemnity costs were awarded to the plaintiff.

The respondents granted a second mortgage on their Richmond Hill home to secure a $120,000 loan from the appellant.

Upon maturity, the appellant issued a discharge statement and subsequently a Notice of Sale with significantly inflated charges.

The respondents challenged the amounts and the premature notice in a Superior Court application under section 12 of the Mortgages Act.

The application judge determined the proper discharge amount and disallowed certain charges, including an illegal interest penalty and unsupported professional fees.

The appellant appealed, arguing the application judge lacked jurisdiction and that the matter should have been assessed by an assessment officer under section 43 of the Mortgages Act.

The Court of Appeal upheld the application judge's decision, finding he had jurisdiction to address all issues and that the respondents' application was a justifiable response to the appellant's unreasonable conduct.