Brad Teplitsky

This endorsement addresses a procedural motion brought by the defendant, Li Ping Shao, seeking an order for the disbursement of funds from the net proceeds of a property sale, held in trust, to cover her living expenses and legal fees.

The plaintiffs, Shan Shan Xu and Jian Zhang, oppose this request.

The court, following a case conference, established a detailed timetable for the motion, including deadlines for motion records, responding records, cross-examinations, and factums, with the hearing scheduled for March 29, 2021.

The endorsement clarifies that the presiding judge is not seized of the matter.

Following a successful trial regarding the default of an asset purchase agreement, the plaintiffs sought costs on a full indemnity basis.

The court found that while both parties contributed to the lengthy litigation, the plaintiffs were entitled to costs on the higher end of the partial indemnity scale.

The plaintiffs' offer to settle did not trigger Rule 49 consequences as it was not as favourable as the judgment obtained.

The court fixed costs at $137,812.65 and waived the six-month waiting period to enforce the writ of seizure and sale, but declined to order that the judgment survive bankruptcy.

This trial decision addresses a complex dispute arising from the sale of a business, involving a promissory note default, failure to assume a lease, and subsequent seizure of assets.

The vendor (plaintiffs) sought to recover a deficit, while the purchaser (defendants) counterclaimed for unlawful seizure and damages.

The court found the purchaser in default of the promissory note and the lease assumption.

It determined that notice prior to seizure was not required under the Personal Property Security Act's exception for collateral customarily sold on a recognized market, and that the vendor's actions, while dishonourable, did not breach the duty of honest performance.

Damages were assessed, adjusting the plaintiffs' claim by reducing excessive storage fees and crediting the defendant for an undervalued asset sale.

A disciplinary appeal concerning allegations of professional misconduct and participation in mortgage fraud by a real estate lawyer.

The Law Society alleged that the lawyer failed to disclose credits to lenders in eight real estate transactions, thereby assisting in mortgage fraud.

The Hearing Panel found no fraud but found the lawyer fell below the standard of competent practice in seven transactions, imposing a two-month suspension.

The Appeal Panel reversed, finding the Hearing Panel applied an incorrect legal test for mortgage fraud and ordered a new hearing.

The Divisional Court upheld this decision by majority.

The Court of Appeal allowed the appeal, finding that while the Appeal Panel's articulation of the legal test was reasonable, ordering a new hearing was unreasonable given the Hearing Panel's clear factual findings that the lawyer lacked the requisite mental element for fraud.

The appellants appealed the dismissal of their action against the estate of their first cousin, Dr. Sherman, and others.

The appellants claimed that Dr. Sherman owed them an ad hoc fiduciary duty to look after their financial interests and that he breached this duty by failing to honour an option agreement that would have allowed them to acquire shares in the family businesses.

The motion judge dismissed the action on two grounds: first, that no genuine issue requiring trial existed regarding the fiduciary duty, and second, that the action constituted an abuse of process as it attempted to re-litigate issues already determined in a prior unsuccessful action against Royal Trust.

The Court of Appeal upheld the dismissal.

In an ongoing assessment of a solicitor's costs, the client sought to introduce evidence of an allegedly improperly commissioned 2015 affidavit and the solicitor's counsel's disciplinary history in Tennessee to attack the solicitor's credibility regarding a 2008 affidavit.

The court ruled the evidence inadmissible, enforcing a prior agreement between the parties not to litigate the 2015 affidavit.

The court also found the evidence failed the test for similar fact evidence and its admission would be highly prejudicial as it would force the solicitor's counsel to become a witness and remove himself from the record.

The appellant imported four Hereford cattle from the United States in 1996, three of which were later discovered to be infected with anaplasmosis due to falsified American health documentation.

The Canadian government quarantined the appellant's herd and ordered the destruction of seven infected cattle.

The appellant received compensation under sections 51 and 53 of the Health of Animals Act.

The appellant subsequently sued the Crown for negligence, claiming damages for business losses and reputational harm.

The motion judge granted summary judgment dismissing the action, finding that section 9 of the Crown Liability and Proceedings Act barred the claim.

The Court of Appeal upheld this decision, holding that section 9 operates to prevent actions for additional compensation arising from the same factual basis as the compensated loss.

The client brought a motion to permanently stay the assessment of its former solicitor's accounts, alleging the solicitor intentionally deleted relevant electronic files from her laptop in breach of a preservation order.

The court found that the allegations involved significant credibility issues and conflicting expert evidence regarding the spoliation of evidence.

Applying principles analogous to summary judgment, the court concluded that a stay was a draconian remedy that could not be granted without a full hearing with viva voce evidence.

The motion was dismissed without prejudice to the client's right to renew the arguments at a full hearing before a Superior Court judge.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action, which alleged that the defendant breached an ad hoc fiduciary duty owed to them regarding an option agreement and an equity position in a pharmaceutical company.

The court found that the defendant made no commitment or undertaking to the plaintiffs that would give rise to a fiduciary duty.

Furthermore, the court held that the action was an abuse of process, as it was an attempt to re-litigate issues concerning the option agreement that had already been decided against the plaintiffs in a previous proceeding against the estate's executor.

The defendants' motion for summary judgment was granted and the action was dismissed.

The appellant lawyer was found guilty of professional misconduct by a Law Society Hearing Panel for failing to advise lender clients of material facts in real estate transactions, but was cleared of mortgage fraud.

The Law Society appealed to the Appeal Panel, which found the Hearing Panel erred in law in its definition of mortgage fraud and ordered a new hearing.

The lawyer appealed to the Divisional Court.

The majority of the Divisional Court dismissed the appeal, finding the Appeal Panel reasonably concluded that the Hearing Panel erred by focusing on the lawyer's subjective belief about the honesty of his conduct rather than objectively assessing whether his failure to disclose constituted dishonest conduct under the Théroux test for fraud.

A dissenting judge would have allowed the appeal.

The appellant appealed a summary judgment dismissing its unjust enrichment claim against the respondents on the basis that the action was commenced outside the two-year limitation period under the Limitations Act, 2002.

The motion judge found that the appellant knew or ought to have known of all material facts giving rise to the claim by January 2012, when the respondent admitted under cross-examination that Silverwood had supplied flooring for the M5V Project.

The Court of Appeal allowed the appeal, finding that the respondent's testimony that profits were less than the management fee removed the possibility of damage from the appellant's mind, and that the appellant only discovered the actual damage when the respondent later admitted in 2015 that the project had made at least $200,000 in profit.

The action commenced in September 2015 was therefore within the limitation period.

The defendants brought a motion for summary judgment based on a two-year limitation period under section 45(1)(h) of the Former Limitations Act.

The plaintiff argued that the applicable period was a six-year period under section 45(1)(g) for 'actions upon a case.' The court, after its own research, agreed that section 45(1)(h) applies only to penal actions and was likely inapplicable.

The motion was adjourned, and the defendants were given detailed directions to amend their pleadings to rely on section 45(1)(g) and re-bring the summary judgment motion, with the court remaining seized of the matter.

The plaintiff vendor and defendant purchaser entered into an agreement of purchase and sale for a property.

The purchaser paid an $80,000 deposit.

On the closing date, the purchaser's lawyer emailed the vendor's lawyer stating the purchaser did not have financing and could not close.

The vendor's lawyer responded with a letter accepting the anticipatory breach, stating the deposit was forfeited and the vendor would sue for damages.

The purchaser argued the acceptance was not clear and unequivocal because the vendor had discussions with a real estate agent about extending the closing.

The court found the vendor's lawyer's letter was a clear and unequivocal acceptance of the anticipatory breach and the discussions did not constitute a waiver.

The court ordered the $80,000 deposit paid to the vendor as damages and dismissed the purchaser's counterclaim.

The appellant lawyer was investigated by the Law Society for alleged involvement in mortgage fraud.

After a five-year delay, the Hearing Panel dismissed the disciplinary application, finding the delay caused the appellant serious psychological harm.

The Appeal Panel overturned this decision, finding the Hearing Panel misapprehended evidence regarding the appellant's cross-examination and applied the wrong legal test.

On appeal to the Divisional Court, the court restored the Hearing Panel's decision, holding that the Appeal Panel failed to show deference and that the unchallenged expert evidence clearly established the appellant suffered significant psychological harm due to the inordinate delay.

The appellant appealed a Small Claims Court decision that enforced a private arbitration award of $5,757.75 in favour of the respondent.

The appellant argued that the Small Claims Court lacked jurisdiction to enforce arbitration awards under the Arbitration Act, 1991.

The Divisional Court dismissed the appeal, holding that the Small Claims Court has jurisdiction under section 23 of the Courts of Justice Act to enforce arbitration awards for amounts within its monetary limit, consistent with the goal of providing accessible and inexpensive justice.

Following dismissal of a motion seeking leave to issue a certificate of pending litigation (CPL), the successful party sought elevated and partial indemnity costs.

The court considered the discretionary authority under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing proportionality under Rule 1.04(1.1).

Allegations that the successful party had acted in bad faith were rejected, and the court found no basis for elevated costs because there was no reprehensible conduct.

Given the complexity of the motion, the extensive evidentiary record, and the significant commercial property interests involved, partial indemnity costs were found fair and reasonable.

Costs were fixed at $35,000 inclusive of HST and disbursements.

The plaintiff sought leave to issue a certificate of pending litigation (CPL) in relation to a commercial agreement of purchase and sale for a medical office property.

The plaintiff alleged breach of warranty regarding lease terms and sought specific performance with an abatement of the purchase price.

The court found there was a triable issue concerning breach of the agreement and that the plaintiff had a plausible claim to an interest in land.

However, applying the principles from Semelhago and Southcott, the court concluded that the property was acquired as a commercial investment and that damages would be an adequate remedy.

Considering equitable factors and the balance of convenience, the court declined to grant leave to issue the CPL.

Multiple related motions arose from litigation concerning the sale of assets of a mulch and container business.

The moving parties sought extensive relief including summary judgment, contempt findings, setting aside an Anton Piller order, injunctive relief, venue transfer, and procedural directions across three related proceedings.

The court set aside the Anton Piller order and ordered seized materials returned, transferred certain proceedings from Toronto to Barrie, and consolidated two related matters to streamline litigation.

Requests for summary judgment, contempt findings, removal of counsel, and additional injunctive relief were largely dismissed due to insufficient evidentiary foundation or procedural defects.

The court concluded that several issues required trial and directed administrative steps regarding prior orders.

Costs were ordered to be borne by each party due to mixed success.

The appellant appealed a partial summary judgment on a promissory note related to the sale of a business.

The motion judge had found the appellant in default, struck the Statement of Defence, and ordered a trial of an issue to determine the net amount owing, to be heard with a related injunction application regarding the seizure and sale of assets.

The Court of Appeal held that the appellant was not precluded from arguing that the seizure and sale were unlawful.

The Court found that striking the Statement of Defence was inconsistent with ordering a trial of an issue.

The appeal was allowed in part to reinstate the Statement of Defence and substitute an order finding the appellant in default.

Following a successful summary judgment motion on liability under a promissory note, the court determined costs of the motion.

The moving parties sought full indemnity costs based on alleged misconduct by the opposing party.

The court found that both counsel had engaged in problematic conduct during the motion and that any misconduct was mutual.

Applying the principle that costs generally follow the event absent exceptional circumstances, the court awarded partial indemnity costs to the successful moving parties.

Costs were fixed at $6,000 inclusive of HST and disbursements.