Benjamin Salsberg

The appellant sued the directors and auditors of a credit union after losing his $5 million investment, alleging misrepresentations in an offering statement.

Midway through the trial, the appellant sought to amend his statement of claim to allege a new misrepresentation regarding the credit union's failure to obtain property appraisals.

The trial judge refused the amendment, finding it asserted a new cause of action that was discoverable years earlier and was therefore statute-barred.

The Court of Appeal upheld the trial judge's decision, confirming that the proposed amendment relied on a different act and a separate failure to disclose, which was not encompassed by the original pleadings.

The plaintiff brought a motion under Rule 60.12 to strike the defendants' Statement of Defence for failing to comply with a prior court order to pay costs forthwith.

The defendants claimed they intended to appeal the prior order but failed to file the notice of appeal or take concrete steps for months, citing health issues and the COVID-19 pandemic.

The court found the defendants' explanations unconvincing and their delay deliberate.

Applying the principles for striking pleadings, the court granted a 'last chance' order, giving the defendants 30 days to comply with the prior order or obtain a stay, failing which their Statement of Defence would be struck.

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.

The plaintiff invested $5 million in preferred shares of a financially troubled credit union pursuant to an offering statement.

The credit union was subsequently placed into administration and liquidation following the discovery of a complex mortgage fraud and the issuance of large, improper loans.

The plaintiff sued the credit union's directors and external auditors, alleging a material misrepresentation in the offering statement regarding the use of 'appraised values' for mortgage approvals.

The Superior Court of Justice dismissed the action, finding no material misrepresentation, no causation, and that the defendants had established a statutory defence.

The court also denied the plaintiff's mid-trial motion to amend the pleadings, ruling the new allegation was statute-barred.

The defendant, Douglas Hallett, brought a motion to set aside a partial default judgment obtained by the plaintiff, Natural Energy Systems Inc. (NES), for $170,000 related to alleged misappropriated funds.

The court considered the promptness of the motion, the defendant's plausible explanation for default (lack of direct notice, financial and health challenges), and whether an arguable defence existed.

The court found that the defendant had established an arguable defence regarding the financial transactions and that the interests of justice favored setting aside the default judgment.

The defendant's claims for injunctive relief and security for costs were dismissed as abandoned or not established.

The claim for a stay based on an arbitration clause was dismissed without substantive determination, without prejudice to the defendant seeking this relief after the close of pleadings.

The defendant was awarded partial indemnity costs of $12,000.

The plaintiff, 864401 Ontario Limited, brought a breach of contract and breach of trust claim against 944952 Ontario Limited and its directors (Dan, Ryan, and Ian McGill) concerning a property management contract.

The plaintiff alleged that 944 misappropriated funds from a trust account.

The defendants counter-claimed for airfare and argued the plaintiff repudiated the contract, entitling them to accelerated management fees.

The court found that the plaintiff did not repudiate the contract, but rather 944 breached the contract and committed a breach of trust by unilaterally transferring funds from the trust account.

Dan and Ryan McGill were found personally liable for knowingly assisting in the breach of trust, while Ian McGill was not.

The plaintiff was awarded $43,100.00, which had been paid into court, plus prejudgment and post-judgment interest.

The applicants sought to discharge a second mortgage on their property and challenged the validity of a Notice of Sale and the amounts claimed by the respondent mortgagee.

The respondent had issued a Notice of Sale claiming over $153,000, including significant administrative, legal, and late fees, one day after the mortgage matured.

The court found the Notice of Sale was premature and invalid, and struck down several inflated and unjustified fees, including an unenforceable 39.99% interest rate on default.

The court determined the approximate amount owing and directed the respondent to provide a proper statement for final determination, declining to issue an order under section 12 of the Mortgages Act at this stage.

The appellants appealed a summary judgment dismissal of their action against a construction management company for alleged overpayments and damages under a penalty clause for construction delays.

The motion judge had rejected the overpayment claim and found the penalty clause did not apply to a feature wall.

The Court of Appeal allowed the appeal, finding that the motion judge's credibility assessment of the appellant was impaired by serious misapprehensions of evidence, including confusing testimony between witnesses and erroneously finding a non-existent invoice.

The court also found the motion judge erred by dismissing the action entirely despite the respondent's concession of a modest overpayment.

The appellant, Invecom Associates Limited, appealed a decision forfeiting a $400,000 deposit under an agreement of purchase and sale for three properties in Waterloo, Ontario.

The agreement contained conditions of closing in favour of Invecom, which could be waived by written notice to the vendors by a specified condition date.

Invecom sent a draft extension agreement proposing to extend the condition date but did not send proper written notice that the conditions had not been satisfied or waived by the deadline.

The court found that Invecom was in default and the deposit was forfeited to the vendors.

The appeal was dismissed.

The defendants successfully defended a summary judgment motion in a simplified procedure action where the plaintiffs claimed approximately $50,000.

The court dismissed the action and requested written submissions on costs.

The defendants sought costs on a partial and substantial indemnity basis, citing an unaccepted settlement offer and the plaintiffs' pursuit of the corporate director personally.

The plaintiffs argued for reduced costs due to the defendants' late production of documents and unnecessary examinations.

The court awarded the defendants $22,500 in costs, applying a hybrid scale that credited the settlement offer but made downward adjustments for both parties' cost-inefficient conduct.

The appellant appealed a judgment granting the respondent lawyers their claim for unpaid legal fees and dismissing his counterclaim for solicitor's negligence.

The appellant argued the trial judge erred in his findings regarding the necessity of the legal services and the lawyers' alleged negligence in handling settlements and a Mareva injunction.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusions were fully supported by the evidence and there was no error in principle.

The appellants appealed a summary judgment decision, arguing that ambiguities in the written agreement required viva voce evidence and credibility findings at trial.

The Court of Appeal dismissed the appeal, upholding the motion judge's interpretation of the contract and security terms, which rejected the appellants' claim that they never intended to guarantee the principal amount.

The court found no genuine issue for trial requiring further evidence.

The parties were unable to agree on costs following a two-hour motion.

The court noted that the responding party's submissions suffered from hyperbole and caused unnecessary rancour, while the moving parties' costs request was wildly excessive and unsubstantiated.

The court fixed costs at $5,000 in the cause.

The plaintiffs brought a motion for summary judgment claiming the return of alleged overpayments and late penalties for delays in a commercial office renovation project.

The court dismissed the motion and the action, finding that the corporate plaintiff and individual defendant were improperly added as parties.

The court held that the delay penalty clause did not apply to the specific items claimed, and the delays were not the sole fault of the defendant.

The claim for overpayment was also dismissed as the plaintiff failed to establish that any payments were made under a mistake of fact or law.

The respondents brought a motion to vary a consent order, which the court determined was an interlocutory injunction, to remove restraints on their ability to deal with the assets of 1889072 Ontario Limited.

The applicant sought the continuation of this injunction.

The court found that the applicant failed to satisfy the prerequisites for an interlocutory injunction as established in RJR-MacDonald Inc. v. Canada (Attorney General), specifically regarding a strong prima facie case, irreparable harm, and an undertaking as to damages.

Consequently, the respondents' motion was granted, and the interlocutory injunction was not continued.

The applicant sought a declaration that its perfected security interest in amounts payable by the City of Toronto to Selectore Ltd. had priority over a garnishment notice served by the respondent Globealive Wireless Management Corp. Globealive argued that the applicant's loan was not in default when the receivable became due, thus precluding the applicant's right to the funds.

The court, relying on section 20(1)(a)(ii) of the Personal Property Security Act, held that a perfected security interest takes priority over a later notice of garnishment, irrespective of whether the secured loan was in default at the time the receivable became due.

The applicant's motion was granted, affirming its priority, and Globealive was ordered to pay costs to both the applicant and the City of Toronto.

The moving parties sought leave to appeal an order dismissing their second motion for a Mareva injunction.

The underlying dispute involved allegations that a corporate opportunity to purchase a real estate development property was misappropriated.

The court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's conclusion that there was no evidence of fraud or a real risk of asset dissipation.

The motion for leave to appeal was dismissed with costs.