Benjamin Salsberg

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 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 applicants sought a declaration that the respondent breached a purchase agreement for three properties, leading to the forfeiture of a $400,000 deposit.

The agreement made time of the essence and specified strict notice requirements for waiving or satisfying conditions.

The respondent failed to provide timely written notice that conditions were not waived or satisfied, instead proposing an extension.

The court found that the proposed extension did not constitute proper notice and that the vendors did not breach their duty of good faith by not responding to the extension offer.

Consequently, the conditions were deemed satisfied, the respondent was in default, and the deposit was forfeited to the applicants.

The plaintiff sought an interim injunction against the defendants for alleged breaches of an oral retainer/employment agreement, fiduciary duties, and confidentiality.

The court found serious issues to be tried regarding whether Mr. Macklin and his company breached their agreement, owed fiduciary duties as a "de facto general manager," and took confidential property.

The balance of convenience plainly favoured the plaintiff, as the potential harm to its business was deemed irreparable and difficult to quantify, while the defendants' inconvenience was less significant.

An interim injunction was granted, prohibiting the defendants from accepting business from specific entities related to the plaintiff's flower transport business until a further interlocutory motion hearing.

Following a six‑day trial in which the plaintiffs successfully recovered unpaid legal fees and defeated a counterclaim alleging solicitor’s negligence, the court determined the issue of costs.

The plaintiffs had obtained judgment for $90,454.81 and dismissal of the defendant’s counterclaim seeking over $428,000.

The court considered the discretionary framework under s. 131 of the Courts of Justice Act, Rules 49 and 57.01 of the Rules of Civil Procedure, and the effect of a prior Rule 49 offer to settle for $60,000.

Finding the plaintiffs were entirely successful and that their settlement offer was more favourable than the ultimate result, the court awarded partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

Costs were fixed in all‑inclusive amounts for both the main action and the counterclaim.

The plaintiff lawyer and his professional corporation sued a former client for unpaid legal fees.

The client counterclaimed for solicitor's negligence, alleging the lawyer failed to collect settlement funds and mishandled an ex parte Mareva injunction, forcing an improvident settlement.

The court found the lawyer's services were necessary, beneficial, and in accordance with instructions, though it slightly reduced the accounts for excessive time.

The counterclaim was dismissed, as the court found no breach of the standard of care and concluded the client's settlement decision was based on damaging evidence from a co-party, not the lawyer's actions.

The moving party sought summary judgment for repayment of $650,000 advanced under a joint venture agreement for the purchase and resale of motor vehicles.

The responding party argued the agreement was ambiguous and did not expressly guarantee repayment of the capital investment, asserting that contractual interpretation required a trial.

Applying the summary judgment framework and principles of contractual interpretation, the court found the agreement clearly required that the initial capital investment not be used to absorb losses and be returned upon termination of the venture.

Considering both the contractual language and surrounding circumstances, including collateral mortgages granted as security, the court concluded there was no genuine issue requiring a trial.

Summary judgment was granted for the return of the $650,000 investment.

The defendants brought motions for security for costs against the plaintiffs.

The plaintiffs sought leave to file a supplementary affidavit regarding their alleged impecuniosity, which was served six months after the deadline set by a court-ordered timetable.

The court denied leave, finding that plaintiffs' counsel failed to provide a reasonable, good faith explanation for the delay and had ignored the court's explicit direction to research the evidentiary requirements for impecuniosity before drafting the initial materials.

The plaintiff brought a motion seeking interim dependent’s support from the estate under the Succession Law Reform Act while pursuing claims for constructive or resulting trust over estate property.

The estate trustees sought directions regarding the possible sale of a farm property where the plaintiff resided.

The court held that interim support requires evidence that the deceased failed to make adequate provision for the dependent under s. 58 of the Succession Law Reform Act, and found the plaintiff provided no evidence addressing the adequacy of a $150,000 bequest.

The claim for general interim support was therefore dismissed.

However, the court ordered the estate to reimburse and fund reasonable property maintenance expenses for estate properties occupied by the plaintiff pending trial.

Following a four-day family law trial involving divorce, the validity of a marriage contract, equalization, and spousal support, the court addressed costs.

The respondent had succeeded in setting aside the marriage contract and obtaining both equalization and spousal support, though she failed on claims for damages and to set aside a conveyance of property to the applicant’s sons.

The court rejected both parties’ submissions that substantial indemnity costs were warranted, finding neither the alleged disclosure issues nor purported fraud allegations justified such an award.

Applying partial indemnity principles and considering the respondent’s greater success on the major issues, the court fixed costs in her favour but reduced them to reflect partial success.

The applicant husband sought a divorce, and the respondent wife claimed equalization, spousal support, tort damages, and the setting aside of their marriage contract.

The court set aside the marriage contract, finding the wife did not understand its nature or consequences and lacked meaningful independent legal advice.

The court dismissed the wife's claim that the husband's sons held the matrimonial home in trust for him, finding a valid gift was made.

The husband was ordered to pay an equalization payment of $20,373.67 and ongoing spousal support of $200 per month, along with retroactive arrears.

The wife's claim for tort damages was dismissed.