Ben Vladlen Hanuka

The appellants appealed a trial judgment that required them to pay a real estate commission.

The primary issue at trial was whether Sandeep Jhutty had initialed an acknowledgement on a Buyer Representation Agreement, which the trial judge found he had.

On appeal, the appellants argued the trial judge erred by reversing the onus of proof and by finding the individual appellants jointly and severally liable without providing reasons.

The Court of Appeal dismissed the appeal, affirming that the standard of proof applies to the final evaluation of liability, not piecemeal, and that the joint and several liability was consistent with a prior consent order.

The Court of Appeal dismissed an appeal concerning the rescission of a franchise agreement.

The trial judge had found that the franchisees were entitled to rescind the agreement under the Arthur Wishart Act due to the franchisor's failure to provide a signed and dated disclosure certificate, and held the franchisor's sole director personally liable as a "franchisor’s associate." The appeal court affirmed that the absence of a proper certificate is a fatal flaw in disclosure, not requiring proof of an inability to make an informed investment, and upheld the finding of personal liability based on the director's representations.

The plaintiff franchisee and its officers sought statutory compensation and damages under the Arthur Wishart Act (Franchise Disclosure), 2000, alleging a fatally flawed disclosure certificate.

The defendant franchisor and its principal counterclaimed for wrongful rescission and damages.

The court found the franchisor's disclosure certificate was fatally flawed, entitling the franchisee to rescind the agreement.

The principal was found to be a franchisor's associate, personally liable for statutory compensation.

The counterclaim was dismissed.

On appeal from a Superior Court order granting relief under section 135 of the Condominium Act, the Court of Appeal considered whether the application judge erred in granting discretionary relief based on facts that changed after the hearing.

The respondent had sought relief based on a pending sale of two condominium units for the purpose of operating an Indian and Mughlai restaurant.

Fresh evidence disclosed that the sale did not proceed and the units were subsequently leased to other tenants.

The Court of Appeal found that the equitable relief granted would provide no practical benefit and set aside portions of the order.

The Court also addressed issues regarding the production of records showing exclusive business uses and the assessment of damages.

This decision addresses an application for leave to appeal an arbitrator's decision and a cross-application to enforce arbitral awards.

The central issue was whether a franchisee is entitled to damages under section 7(2) of the Arthur Wishart Act (Franchise Disclosure), 2000 (AWA) for misrepresentation in a disclosure document voluntarily provided by a franchisor, but not legally required under section 5 of the AWA.

The court found that the arbitration agreement's "final, conclusive and binding" language excluded a right of appeal.

Even if leave to appeal were possible, the court was not satisfied that the importance of the matters at stake justified an appeal.

The court upheld the arbitrator's decision, finding it reasonable and correct, that section 7(2) of the AWA only applies to misrepresentations in disclosure documents *required* by section 5, not those voluntarily provided, especially for commercially sophisticated franchisees.

Consequently, the application for leave to appeal was dismissed, and the application to enforce the arbitral awards was granted.

2214416 Ontario Inc. (221), a unit owner in a commercial condominium plaza, sought to sell its units for the operation of an Indian restaurant, an exclusive business use under the condominium's Declaration.

The condominium corporation (PSCC 937) refused permission, citing existing exclusive uses by other unit owners. 221 alleged that PSCC 937 failed to produce records of exclusive uses and acted oppressively by denying its request and by relying on a Declaration article that purported to absolve the corporation of enforcement duties.

The court found that the dispute primarily concerned compliance with the Condominium Act, thus granting jurisdiction.

It declared Article 2.01(i) of the Declaration inconsistent with the Act and therefore amended.

The court further found PSCC 937's refusal to produce records and permit the proposed business use to be oppressive and unfairly prejudicial to 221, ordering PSCC 937 to produce the records and permit the exclusive business use.

Damages for the breach of the Act were adjourned for assessment.

The appellants were successful on appeal from a summary judgment decision.

The Court of Appeal addressed costs following the appeal.

Counsel for the respondent agreed that the appellants' claimed costs of $18,686.25, comprising $17,132.50 in fees on the partial indemnity scale and $1,553.75 in disbursements, were reasonable.

The court ordered that amount in costs, inclusive of HST, be paid by the respondent to the appellants.

Appellants purchased a franchise from the respondent and sought rescission under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000 on the basis that no proper disclosure document was provided.

The motion judge found the disclosure deficient but held that the appellants received sufficient information to make an informed decision and that deficiencies were not significant or misleading.

The Court of Appeal allowed the appeal, finding that material deficiencies in the disclosure document—specifically the absence of two required director signatures and failure to provide current audited financial statements—rendered the purported disclosure document invalid under the Act and Regulation.

The appellants were entitled to rescission under section 6(2).

Endura Manufacturing Company Ltd. (Endura) brought a motion to set aside service of a claim ex juris and stay an action initiated by Benefact Consulting Group Inc. (Benefact) in Ontario.

Endura argued that a forum selection clause in their contract, which designated Ontario courts, was unconscionable or obtained through unfair tactics, and that Ontario lacked a real and substantial connection to the dispute or was *forum non conveniens*.

The court found the forum selection clause to be valid and binding, rejecting Endura's claims of unconscionability or improper inducement.

Consequently, the court upheld Ontario's jurisdiction based on the clause, dismissing Endura's motion.

The moving party sought certification of a proposed class proceeding on behalf of present and former franchisees of a pizza franchise system alleging excess advertising contributions, excessive order‑processing fees, and failure to share supplier rebates.

The proposed claims included breach of contract, breach of statutory duty of fair dealing under the Arthur Wishart Act (Franchise Disclosure), 2000, misrepresentation in disclosure documents, and related equitable remedies.

The court held that the pleadings disclosed viable causes of action, that an identifiable class and common issues existed, and that a class proceeding would be the preferable procedure.

However, the proposed representative plaintiff was found unsuitable due to evidence of serious contractual breaches, insolvency, and potential conflicts with the class.

The certification motion was adjourned to permit substitution of a new representative plaintiff.

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 defendants brought a motion to strike the plaintiffs’ motion seeking production of documents from non-parties and to quash a summons requiring a non-party to attend for examination.

The action had already been set down for trial after the plaintiffs served a trial record.

The court held that under Rule 48.04(1) of the Rules of Civil Procedure, a party who has set an action down for trial cannot initiate further discovery or related motions without leave of the court, absent exceptional circumstances.

The plaintiffs failed to seek leave and did not establish any substantial or unexpected change in circumstances justifying further discovery.

The summons to the non-party was also non‑compliant with Rule 34.03 because it required attendance in a different region from the witness’s residence.

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.