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.

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.

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 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 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.

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.

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.

The plaintiffs moved for summary judgment to enforce a promissory note executed in connection with an asset purchase agreement for a recycling business.

The defendant admitted signing the note and acknowledged the outstanding balance but argued that the plaintiffs had waived default, improperly seized collateral, and failed to account for the sale of secured assets.

The court held that no clear waiver or agreement to forbear from enforcing the note was established and that the defendant failed to produce evidence supporting allegations of improper seizure under the Personal Property Security Act.

However, due to ongoing litigation regarding the seizure and disposition of secured assets, the precise amount owing under the note remained uncertain.

Summary judgment on liability was granted, the defence was struck, and the quantum of the debt was ordered to be determined at trial together with the related injunction proceedings.

The moving party sought an order appointing a computer forensic expert to inspect the responding party’s computer systems to determine the authenticity of certain emails allegedly exchanged between employees.

The motion alleged a lack of transparency in the responding party’s investigation and requested inspection of servers and archived email systems.

The court accepted the responding party’s evidence that no trace of the emails existed in its live exchange system or archival vault and that prior internal and forensic reviews found no record of the communications.

Applying a threshold requirement that there be a real likelihood the emails once existed and were deleted, the court held the moving party’s request was based on speculation.

Given the intrusive nature of inspecting a competitor’s computer systems and the principle of proportionality in discovery, the court refused the requested order.

Following a prior decision granting declaratory relief for infringement under the Trade-Marks Act and Competition Act, the court addressed whether costs should be awarded before the quantification of damages on a reference.

The respondent argued that costs should be deferred until damages were determined in order to respect the principle of proportionality.

The court held that s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure confer discretion to award costs for a proceeding or a step in a proceeding even before damages are quantified.

Given the applicant’s substantial success on liability and the final nature of the declaratory relief, the court ordered that costs be payable forthwith on a partial indemnity basis, while allowing the respondent to make written submissions on the quantum of costs.

The defendant director brought a motion for summary judgment dismissing claims against him personally in a commercial dispute arising from a proposed hotel development joint venture.

The plaintiff alleged the director breached fiduciary duties and induced breach of contract and trust after removing the plaintiff from negotiations with a municipal authority.

The court held there was no genuine issue requiring trial regarding the director’s personal liability.

Directors owe fiduciary duties to the corporation, not to third-party stakeholders, and the plaintiff failed to establish a fiduciary relationship or any trust asset arising from the letter of intent.

The court further held that the director’s actions were taken bona fide on behalf of the corporation and were protected by the Said v. Butt principle.

The applicant alleged that the respondent distributed a brochure containing false and misleading statements about the applicant’s water heater rental services.

The court considered whether the brochure breached s. 7(a), s. 22, and s. 53.2 of the Trade-Marks Act and s. 52 of the Competition Act by discrediting a competitor and depreciating the value of goodwill attached to registered trade-marks.

The court found the brochure contained inaccurate and misleading representations and improperly reproduced the applicant’s trade-mark and logo.

The court concluded the respondent’s conduct breached the Trade-Marks Act and the Competition Act.

A declaration of breach was issued, a permanent injunction granted restraining further distribution of the brochure, and a reference ordered to determine damages.