Brett David Moldaver

The plaintiff environmental remediation company sued the defendant property owner for $157,941.43 in unpaid invoices.

The defendant counterclaimed for $650,000, alleging the plaintiff over-remediated the property to a higher environmental standard than necessary.

The court found the property was highly contaminated due to a broken sewer pipe and lack of interceptor maintenance by the defendant's tenant.

The court accepted the plaintiff's evidence that the extensive remediation was required and dismissed the over-remediation counterclaim.

Judgment was granted for the plaintiff for the full amount claimed, plus contractual interest of 26.7% per annum based on the parties' course of dealing.

Following an appeal that was allowed in part with divided success, the parties made written submissions regarding costs in the court below.

The appellants sought to set aside a $20,000 costs award against them, while the respondent argued the costs order should remain.

The Court of Appeal held that the divided success on appeal informed the appropriate disposition of costs below.

The court set aside the $20,000 costs award and ordered no costs of the motion in the court below.

The appellants appealed a motion judge's order that permanently stayed their action against a law firm (A&B) on the basis that it constituted an abuse of process for not having been added to an existing 'Main Action' involving the same factual circumstances.

The Court of Appeal found that the motion judge erred in concluding that commencing a separate action was an abuse of process, as it is not always abusive to start a new action instead of amending an existing one, especially when distinct claims or privilege concerns are involved.

However, the Court upheld the procedural direction that the claims should proceed in a single action.

The appeal was allowed in part, setting aside the permanent stay and replacing it with a temporary stay, allowing the appellants to bring a motion to add A&B as a defendant to the Main Action, with the ultimate determination of a permanent stay to be made by the motion judge hearing that application.

The Corporation of the City of Ottawa moved to set aside a Registrar's order dismissing its action for delay and to reinstate the action.

The motion was opposed by some third parties.

The court applied the test for setting aside a dismissal order for delay, finding that the City provided a satisfactory explanation for the delay, consistently intended to prosecute the action, and acted promptly to address the dismissal.

The court also determined that the opposing parties would not suffer significant prejudice from the reinstatement.

The motion was granted, reinstating the main action and automatically reviving derivative third-party claims.

The appellant, an unsecured creditor, appealed a motion judge's order authorizing a pooled distribution of assets under a receivership, which included both individual and corporate debtors.

The appellant objected to sharing corporate assets with creditors of only the individual debtors.

The Court of Appeal upheld the motion judge's decision, finding no error in piercing the corporate veil to pool assets, as the corporate assets were derived from fraudulent transfers by the individual debtors to defeat creditors.

The court also found no procedural unfairness in determining the issue on a motion for directions and upheld the disallowance of certain interest charges claimed by the appellant.

The moving party tenant sought an extension of time to file a Notice of Appeal from a Landlord and Tenant Board order terminating his tenancy for the landlord's own use.

The tenant had requested a review of the original order, but due to an administrative error, the LTB's review order dismissing the request was not released until months later.

Applying the Enbridge Gas factors, the court found that the tenant demonstrated a bona fide intention to appeal, the delay was reasonably explained by waiting for the review order, and the proposed appeal raised a question of law regarding the statutory affidavit requirements.

The motion for an extension of time was granted.

The appellant, a U.S. law firm, appealed an order declaring mortgages it held over six Ontario properties, granted by its clients (the Hutchens) to secure legal fees, void ab initio as fraudulent conveyances under the Fraudulent Conveyances Act.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that the judgment creditors had standing, were "creditors or others" under the Act, and that the mortgages were not granted in good faith, thus not falling under the statutory exceptions.

The court also rejected arguments of res judicata or abuse of process.

The Applicants, judgment creditors of the Respondents (Hutchens), brought a motion seeking a declaration that $2M mortgages registered by Adroit Advocates LLC against the Hutchens' Ontario properties were void ab initio.

The mortgages were registered shortly after a significant US judgment was rendered against the Hutchens for mortgage financing fraud.

The Applicants argued that the mortgages were intended to defeat creditors and were given for insufficient consideration.

Adroit, the responding non-party, challenged the Applicants' standing and asserted the mortgages were granted in good faith for good consideration.

The court found the Applicants had standing and, applying the Fraudulent Conveyances Act and the Assignments and Preferences Act, determined that the mortgages were intended to give Adroit an unjust preference over other creditors and were given for inadequate consideration, primarily consisting of future, unbilled legal fees.

The motion was granted, declaring the mortgages void and directing their discharge.

Honeycomb Hospitality Inc. sought a stay pending its application for leave to appeal a Divisional Court decision that affirmed summary judgment for wrongful dismissal and damages in favour of the employee.

The motion judge applied the three-part test for a stay, finding that while a serious issue was raised regarding pregnancy's role in Bardal factors, the employer failed to demonstrate irreparable harm if required to pay the judgment and costs into trust.

The balance of convenience also favored denying the stay.

The appellant employer appealed a summary judgment decision awarding the respondent employee five months' reasonable notice for wrongful dismissal.

The respondent was terminated without cause after four and a half months of employment while five months pregnant.

The Divisional Court dismissed the appeal, holding that the motion judge did not err in considering the respondent's pregnancy as a factor under the Bardal framework when determining the reasonable notice period, nor did the motion judge err in the costs award.

The appellants appealed a decision concerning damages from an interim injunction they obtained against the respondents and compensation for work the respondents were obliged to complete under a 2010 court order.

The Court of Appeal dismissed the appeal, upholding the trial judge's assessment of damages, which included interest rate differentials and lender's amendment fees due to the injunction, and the compensation for expenditures related to the 2010 order.

The court found no palpable and overriding error in the trial judge's factual findings and deferred to his interpretation of the 2010 order.

The plaintiffs, having succeeded in the action, sought costs.

They argued that their February offer to settle entitled them to elevated costs under Rule 49.

The court found that the offer contained no real compromise on the principal amount and that the fixed costs offer could not be evaluated as a compromise.

Consequently, the court awarded the plaintiffs their costs on a partial indemnity scale, fixed at $54,000 all-inclusive.

The plaintiffs, real estate brokers, sued the defendant for unpaid commission on a $17 million property purchase.

The parties disagreed on whether the defendant had orally accepted the plaintiffs' offer to reduce their commission from 1.5% to 0.75%.

On cross-motions for summary judgment, the court utilized its enhanced fact-finding powers, including hearing oral evidence, to assess credibility.

The court found the plaintiffs' evidence more reliable and consistent with the documentary record, concluding that the defendant had not accepted the reduced commission offer.

The plaintiffs were awarded judgment for the full commission amount of $288,150.

This decision addresses the costs of a wrongful dismissal action following a successful summary judgment motion where the plaintiff was awarded five months' notice.

The plaintiff sought partial indemnity costs of $47,519.40, while the defendant sought costs related to abandoned claims for punitive, aggravated, moral, and Human Rights Code damages.

The court awarded the plaintiff $22,000 in all-inclusive costs, finding that while the recovery was within Small Claims Court limits, commencing the action in Superior Court was initially appropriate due to the complexity of claims and defences.

The court declined to make a cross-award for costs related to abandoned claims, emphasizing that abandoning claims can be a reasonable litigation step and that proportionality and fairness are key considerations in costs awards.

The plaintiff, Sarah Nahum, was terminated without cause by the defendant, Honeycomb Hospitality Inc., after four and a half months of employment while five months pregnant.

On a summary judgment motion, the court addressed the reasonable notice period, specifically considering the impact of pregnancy on its calculation.

The court found pregnancy to be a Bardal-type factor affecting employability and awarded the plaintiff five months' notice, resulting in damages of $34,194.87.

The plaintiffs brought a motion to enforce a prior order prohibiting the defendants from dealing with a property, arguing that the defendants' default on Minutes of Settlement allowed them to continue the action under Rule 49.09(b).

The plaintiffs also sought a contempt order.

The third-party purchasers of the property sought to intervene.

The court dismissed the motion to intervene, finding it would not make a useful contribution.

The court also dismissed the plaintiffs' motion, holding that Rule 49.09(b) does not apply to negotiated Minutes of Settlement, and that the prior prohibition order had been set aside and was no longer in effect.

The plaintiffs' remedy was to move for judgment on the settlement.

The moving party defendant in a receivership proceeding brought a motion to compel the receiver to comply with a final order and distribute the remaining funds.

The receiver sought directions to approve additional fees and disbursements that it had mistakenly omitted before the final order was entered.

The court held that the final order subsumed the initial receivership order and could not be amended under Rule 59.06(1) of the Rules of Civil Procedure, as the error was made by the receiver, not the court, and the facts were known before the order was entered.

The moving party's motion was granted, and the receiver's request for additional fees was denied.

This case concerns an atypical receivership where the court-appointed receiver sought approval for its activities, including a cash collateral arrangement with Tarion Warranty Corporation and the payment of unsecured creditors' proven claims.

The debtor and a related party objected, arguing that the unsecured claims were statute-barred under the Limitations Act, 2002, and that Tarion was not an unsecured creditor or not entitled to full indemnification for legal fees.

The court approved the receiver's reports, finding that the Limitations Act, 2002 bars the remedy of commencing a proceeding but does not extinguish the underlying debt.

It held that a court-authorized claims process in a receivership is a separate remedy not barred by the Act.

The court also approved the cash collateral arrangement and Tarion's claim for indemnified legal fees, confirming its status as an unsecured creditor.

The plaintiffs, a hair salon tenant and its principals, brought a motion for injunctive relief and access to commercial leased premises after the landlord locked them out due to alleged rent arrears and property damage concerns during the COVID-19 pandemic.

The landlord had purported to exercise a right of distress for an inflated amount including by-law infraction costs.

The court found the landlord's actions constituted a forfeiture of the lease and an illegal distraint.

The court granted the plaintiffs' requested access to retrieve chattels and ordered the landlord to pay substantial indemnity costs due to its "reprehensible, scandalous or outrageous conduct" in holding the chattels hostage during a vulnerable time.

This endorsement addresses the quantum of costs following the Applicants' success in an application to reduce a mortgage from over $5,000,000 to $10,000.

The Applicants sought $139,642.93 on a partial indemnity basis, while the Respondent proposed a maximum of $70,000.

The court considered the high stakes, the urgency of the matter exacerbated by COVID-19, and the Respondent's delaying tactics.

Despite finding the Applicants' bill somewhat high due to senior counsel's involvement, the court awarded costs of $100,000.00 inclusive of disbursements and taxes to the Applicants, emphasizing their full success and the Respondent's conduct.