Brett David Moldaver

The plaintiff, Janeric Engineering Inc., sought summary judgment for $400,000 plus interest based on a promissory note given by the defendant, 2496110 Ontario Inc., in the context of an asset purchase agreement.

The defendant argued that conditions precedent for payment were not met and asserted a right of setoff.

The court granted summary judgment, finding the promissory note enforceable as amended by an addendum, dismissing the defendant's arguments regarding banking documents and the right of equitable setoff against a promissory note.

The court also denied a stay of judgment as no counterclaim was filed.

The Estate Trustee During Litigation (ETDL) for the estate of Elias Gefen brought a motion seeking payment of his significant fees and disbursements from disputed estate assets, a priority charge on these assets, and permission for interim payments.

The motion was supported by Harry Gefen and the estate of Yehuda Gefen, and opposed by Henia Gefen, Harvey Gefen, and a non-party co-tenant.

The court found that the ETDL was entitled to payment from the 'Property Interest' (disputed assets) and a charge on it, interpreting the original appointment order broadly to include assets with contingent estate interests.

The court denied the ETDL's request to further mortgage the properties to raise funds, citing potential adverse effects on non-parties.

The ETDL was granted the right to make interim payments from available distributions, subject to a final passing of accounts.

Costs were awarded against the opposing parties personally and the balance from the Estate.

The appellants appealed an order enforcing a settlement agreement.

The respondents had commenced an action claiming specific performance of an agreement to purchase shares and damages for misrepresentation, alleging they had invested $283,500 to purchase shares that were never delivered.

The appellants made a written settlement offer on September 9, 2016 for $428,537.

The respondents countered on October 5, 2016 with an offer for $900,000.

On November 23, 2016, the appellants' solicitor wrote indicating the shares had been registered in the respondents' names.

On December 22, 2016, the respondents accepted the September 9, 2016 offer.

The motion judge found a settlement had been reached and enforced it.

The appellants appealed, arguing enforcement would result in double recovery.

The Court of Appeal dismissed the appeal, finding the appellants failed to lead evidence establishing double recovery.

The plaintiffs moved to enforce a settlement agreement for $428,537 against the defendants.

The defendants argued their offer was terminated by a counter-offer and that enforcement would be unjust due to alleged double recovery from both shares and the monetary settlement.

The court found a binding settlement under Rule 49.07(2) of the Rules of Civil Procedure, noting that a counter-offer does not automatically terminate an original offer under the Rules.

The court also determined that the defendants failed to demonstrate a real risk of clear injustice to warrant declining enforcement, as the plaintiffs' claims extended beyond share ownership to substantial damages.

The motion to enforce the settlement was granted, and the plaintiffs were awarded $6000 in partial indemnity costs.

The plaintiffs sought damages from the vendor for alleged deficiencies in a renovated home they purchased.

The defendant vendor, who was self-represented and failed to appear at trial, was sued for costs incurred to rectify the issues.

The court examined whether alleged oral agreements and various deficiencies constituted warranties that survived the completion of the Agreement of Purchase and Sale (APS) or were merely conditions of closing.

The court found that most claims related to conditions of completion and did not survive closing, except for specific warranties regarding chattels and an undertaking for a $10,000 holdback.

The plaintiffs were awarded the $10,000 holdback and a limited amount for specific breaches of surviving warranties, totaling $3,563.31 plus pre-judgment interest.

The plaintiff, Muskoka Minerals & Mining Inc., supplied sand for indoor volleyball courts and was not paid in full.

It registered a lien and sued the property owner, Gorge Holdings Inc., and the operators.

The court found Gorge Holdings Inc. contractually liable because its employee signed the supply agreement as a purchaser, actively supporting the venture.

Gorge Holdings Inc. was also deemed a "statutory owner" under the Construction Lien Act due to its interest in the premises, request for improvement, and consent/credit provided.

Judgment was granted against Gorge Holdings Inc. for the outstanding amount plus interest, and the lien was upheld.

The appellant general contractor appealed a trial judgment allowing part of the respondent subcontractor's construction lien claim.

The appellant argued the trial judge erred in denying a credit for PST, in his treatment of extras and back charges, and in treating the owner's legal costs as a costs issue rather than a charge back under the subcontract.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and agreeing that equitable estoppel applied to the PST issue and that the legal costs were properly treated as a costs matter.

The appellant franchisor appealed a Small Claims Court judgment awarding the respondent franchisee a return of their initial franchise fee.

The Deputy Judge had found that the franchise agreement was frustrated because the franchisor failed to secure a lease for the specific location contemplated in the agreement.

On appeal, the Divisional Court upheld the decision, finding no palpable and overriding error in the application of the doctrine of frustration.

The court also rejected the argument that frustration could not be found because it was not explicitly pleaded, noting that strict pleading standards do not apply in Small Claims Court.

Following a construction lien trial where the plaintiff subcontractor obtained judgment against the general contractor, the court determined the costs of the action.

The issues included whether success was divided, the appropriate scale of costs following a rejected offer to settle under Rule 49.10 of the Rules of Civil Procedure, and whether the defendant could recover costs associated with the owner’s legal expenses and the removal of a lien from title.

The court held that the plaintiff was the more successful party and had beaten its pre‑trial offer, entitling it to partial indemnity costs up to the offer date and substantial indemnity thereafter.

However, because the plaintiff unnecessarily kept the owner in the action after the lien was vacated, the court allowed a set‑off representing the reasonable portion of the owner’s legal costs.

Final costs were fixed in favour of the plaintiff after deductions.

The plaintiff subcontractor brought a construction lien action against the defendant general contractor for unpaid contract amounts and extras on a school renovation project.

The defendant argued that no amounts were due under the contract's 'pay when paid' provisions and claimed back-charges for uncompleted work and a PST credit.

The court held that the Construction Lien Act supersedes the contract's payment terms.

The court allowed most of the plaintiff's claims for extras, dismissed the defendant's claim for a PST credit, but allowed the defendant's back-charge for uncompleted brickwork.

The plaintiff was awarded a net judgment of $27,450.95.

The appellant appealed a trial judgment dismissing its claims for maintenance fees and unjust enrichment.

The Court of Appeal upheld the trial judge's findings that the claim for maintenance fees under an oral contract was statute-barred, as the appellant knew or ought to have known of the non-payment years prior.

The Court also upheld the finding that the appellant's acquiescence barred recovery for unjust enrichment regarding management services.

The appeal was dismissed with costs.

Following a trial in which the defendant was entirely successful, the court determined the issue of costs.

The plaintiff had failed to obtain any judgment and had not accepted a clear settlement offer prior to trial.

The court considered proportionality, the relatively straightforward nature of the matter, and the limited documentary record and discovery conducted.

Substantial indemnity costs were declined because the plaintiff had not unnecessarily prolonged the proceeding and could not reasonably have expected exposure to the level of costs claimed.

The defendant was awarded partial indemnity costs fixed at $16,500 inclusive of disbursements and HST.

The appellant developer appealed a trial judgment finding it was not entitled to bill respondent builders for certain repairs in a residential building project due to failure to comply with a contractual notice provision.

The developer argued the provision was ambiguous and relied on promissory estoppel.

The respondent builders cross-appealed an order requiring them to post security for potential municipal repairs.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that the notice provision was unambiguous, promissory estoppel was not established, and the builders had a clear contractual obligation to maintain the security deposit.

The appellant successfully defended a claim for trespass and damage to property at trial, but the trial judge dismissed the claim without costs and without giving the appellant an opportunity to make costs submissions.

On appeal, the Divisional Court held that while a trial judge has discretion to refuse costs, procedural fairness requires hearing submissions first.

The court considered the matter afresh and awarded the appellant costs of the trial on a partial indemnity scale, as well as $7,000 for the appeal.

The moving party, 2205305 Ontario Inc., was unsuccessful on an urgent motion to stay an order approving a receiver's sale of properties.

The respondents sought costs against the moving party's parent corporation, Romspen Investment Corporation, arguing it was the real moving party and the moving party was a shell corporation.

The Court of Appeal dismissed the request for costs against the non-party, finding no fraud or abuse of process to justify lifting the corporate veil, and fixed costs against the moving party on a partial indemnity scale.

The appellant appealed a decision regarding jurisdiction over its fraud claim.

The Court of Appeal allowed the appeal, finding that the fraud claim was linked to Ontario because the alleged harm was suffered there through the receipt of invoices, and the business dealings were governed by a contract containing an Ontario forum selection and governing law clause.

The plaintiff, a shareholder and creditor of a closely held corporation, brought an oppression action alleging that another shareholder and director misappropriated corporate funds.

The defendant moved to dismiss the claims, arguing they were derivative in nature and required leave under s. 246 of the Business Corporations Act.

The motion judge dismissed the motion, finding the claims were properly advanced under the oppression remedy in s. 248.

The Court of Appeal upheld the decision, noting the overlap between derivative actions and oppression claims, particularly in closely held corporations where the risk of frivolous lawsuits is minimized.

The appellants appealed an order staying their entire proceeding pending the corporate revival of one of the plaintiffs.

The Court of Appeal dismissed the appeal, holding that the motion judge had the discretion to stay the entire proceeding in the interests of efficiency, as it was preferable for both plaintiffs' actions to proceed together.

The appellant, Bank of Montreal, appealed an order granting the respondent, Royal Bank of Canada, priority over the proceeds of the sale of a property and collected rents.

The respondent's registered mortgage was void due to a violation of the Planning Act.

However, the Court of Appeal upheld the motion judge's decision that the respondent was entitled to priority based on the equitable doctrine of subrogation, as it had advanced funds to pay off prior valid encumbrances and municipal taxes.

The Court also upheld the respondent's priority regarding the assignment of rents, which was validly registered under the Personal Property Security Act.

The respondent's cross-appeal seeking an equitable mortgage was dismissed.

The appellants appealed a trial judgment finding that fees paid to the respondent bank were non-refundable valuation and processing fees, rather than refundable commitment fees.

The Court of Appeal upheld the trial judge's interpretation of the commitment letters, noting the appellants accepted the terms and paid the fees without reservation before refusing to proceed with the financing.

The appeal was dismissed.