Brian Sherman

The plaintiff, whose construction lien was previously vacated by a different judge, brought a motion seeking a Certificate of Pending Litigation (CPL) or, alternatively, an order for sale proceeds to be paid into court, pending an appeal of the lien vacation order.

The court denied the CPL, agreeing with the defendants that it was not available and constituted a collateral attack on the prior order.

However, recognizing the potential merit of the appeal and the risk to the plaintiff if the property was sold, the court exercised its jurisdiction under Rule 63.01(a) to order that if the property is sold, $500,000 of the proceeds must be paid into court by the defendants as interim protection pending the Divisional Court's final determination.

The plaintiff brought an action for professional negligence, breach of contract, negligent misrepresentation, and breach of fiduciary duty against the defendants, who acted as her paralegal consultants following two motor vehicle accidents in 2001.

The plaintiff alleged the defendants failed to preserve the limitation periods for her accident benefits and tort claims.

The court found that the defendants were retained for the first accident but not the second.

Although the defendants breached the standard of care by failing to file a statement of claim and inform the plaintiff of limitation issues for the first accident, the court dismissed the action.

The court held that the plaintiff's claims against the defendants were statute-barred under the Limitations Act, 2002, as she knew or ought to have known of the potential claim more than two years before commencing the action.

Furthermore, the court found that the plaintiff's injuries from the first accident did not meet the permanent serious impairment threshold under the Insurance Act.

The plaintiff moved for summary judgment against the corporate defendants for unpaid amounts owing on equipment leases and against the personal defendants on their guarantees.

The defendants argued there were genuine issues for trial, including fundamental breach due to defective equipment, failure to mitigate, bad faith, and issues regarding insurance.

The court found no objective evidence to support the defendants' claims of defective equipment or bad faith.

The court also held that the plaintiff had no duty to mitigate given the liquidated damages clause and that the defendants were contractually responsible for insurance.

Summary judgment was granted for the outstanding amounts.

The defendants brought a motion to discharge a claim for lien and vacate a certificate of action, arguing the plaintiff was an owner, not a contractor, under the Construction Act.

The plaintiff claimed he was a contractor who provided labour and materials for a house construction.

The court found that the plaintiff and defendants had a partnership agreement to build and sell the house for profit, making the plaintiff an owner.

As an owner cannot lien their own property, the motion was granted, and the claim for lien was discharged.

Following a trial where the plaintiff succeeded in its construction lien and damages claims, the court determined the costs and interest payable.

The court found the defendant's settlement efforts unreasonable, noting she rejected a settlement conference recommendation and a reasonable Rule 49 offer from the plaintiff.

Applying the principles of proportionality and the factors under Rule 57.01, the court awarded the plaintiff costs of $135,000, representing a reduction from the $186,044.09 claimed, along with prejudgment and post-judgment interest.

The plaintiff contractor registered a construction lien and claimed breach of contract damages after the defendant owner terminated their residential construction contract.

The owner counterclaimed for damages, alleging the contractor abandoned the project and left numerous deficiencies.

The court found the contract was a fixed-price agreement with cost-plus ongoing compensation and shared supervision.

The court held the owner failed to prove fundamental breach by the contractor, as most alleged deficiencies were either changes necessitated by site conditions (like sandy soil) or unfinished work, and no proper notice to correct was given.

The owner's termination amounted to wrongful repudiation.

The contractor was awarded $74,259.32 for its lien, lost management fees, and lost profit, while the owner's counterclaim was dismissed.

The defendant, Nima Priyeshakbari, brought a motion to strike portions of the plaintiff's claim, which asserted allegations of fraud, conspiracy, fraudulent conveyance, and insufficient particularity regarding an interest in land and documents/conversations.

The plaintiff alleged that the defendants conspired to unlawfully convert a property in which she had invested, selling it below market value to deprive her of her investment.

The court applied the "plain and obvious" test for striking pleadings, accepting the plaintiff's alleged facts as true unless patently ridiculous.

The court found that the plaintiff's claim met the necessary particularity requirements for fraud and conspiracy, noting that knowledge can be alleged as a fact without pleading circumstances.

The court also clarified that the Land Titles Act does not ban trusts but rather defines how third parties deal with registered owners.

The motion to strike was dismissed.

This decision addresses costs following a complex summary judgment regarding the sale of counterfeit headphones.

Computron Systems International Inc. (Computron) and Husain Ladhani et al. (Ladhani) both achieved partial success in their respective summary judgment motions against Techlogics Canada Inc. and Faisal Rashid (Techlogics), while Techlogics was largely unsuccessful.

The court considered factors under Rule 57.01(1) and Rule 49.10 (offers to settle), declining to impose Rule 49.10 sanctions due to the conditional nature of the offers involving multiple parties.

The court also addressed the applicability of the Rule 76 simplified procedure and the conduct of the parties.

Ultimately, Computron was awarded $18,000 in costs, apportioned equally between Ladhani and Techlogics.

Ladhani was awarded $16,000 in costs from Techlogics.

The applicant sought a declaration of entitlement to a two-thirds share of his deceased mother-in-law's home, arguing that a previous joint tenancy transfer to his late wife severed the tenancy and made it a matrimonial home.

The respondents, the deceased's grandchildren, argued the transfer was a resulting trust.

The court found the applicant failed to rebut the presumption of resulting trust arising from the parent-to-child transfer.

The application was dismissed, and the respondents were awarded partial indemnity costs, reduced due to unnecessary separate representation.

The appellant appealed a summary judgment decision awarding damages for breach of an unconditional agreement of purchase and sale.

The appellant claimed the agreement was frustrated by a government policy announcement that caused real estate prices to drop 20-30 percent, preventing her from obtaining financing and selling her own home.

The Court of Appeal upheld the lower court's decision, finding that frustration did not apply because the appellant deliberately chose not to include financing or sale conditions in her offer to make it more attractive to the vendor.

The court held that the policy announcement did not constitute a "radical change" in the appellant's obligations and that the appellant knowingly assumed the risk of being unable to obtain financing.

The parties separated and the wife, who suffers from severe mental illness, sought to reconcile out of a delusional fear for her child's safety.

The husband agreed to reconcile only if she signed a Marriage Contract waiving all rights to spousal support and equalization.

The husband failed to disclose his purchase of a property and a significant withdrawal from their joint account.

The court found that the husband exploited the wife's vulnerability, that she signed the contract under duress, and that she did not understand its consequences due to the non-disclosure.

The court exercised its discretion under s. 56(4) of the Family Law Act to set aside the Marriage Contract.

The plaintiffs moved for summary judgment seeking damages for breach of contract and punitive damages.

The court found that a binding contract existed between the parties, allowing the plaintiffs to live rent-free on a farm property in exchange for duties, despite the absence of formal signatures and the defendant's later unilateral termination.

The court determined that the defendant breached this contract without grounds.

General damages were awarded to the plaintiffs based on the remaining rent-free period, but the claim for punitive damages was dismissed as the defendant's conduct did not constitute an actionable wrong independent of the breach of contract.

The plaintiffs and defendant entered into an unconditional agreement of purchase and sale for a residential property.

The defendant failed to close, claiming she could not obtain financing because she was unable to sell her existing home following a provincial government policy announcement that cooled the real estate market.

The defendant argued the contract was frustrated or contained an implied financing condition.

The court granted summary judgment to the plaintiffs, finding that a market decline is not an unforeseeable supervening event that radically changes the contractual obligation, and the entire agreement clause precluded any implied terms.

The plaintiffs were awarded $623,733.05 in damages for the difference in resale price and carrying costs.

The plaintiffs sued Queens Walk Inc. and several individual defendants for breach of contract, inducing breach of contract, deceit, misrepresentation, and negligence related to a commercial condominium purchase agreement.

The individual defendants moved to strike all claims against them, and Queens Walk Inc. moved to strike the punitive damages claim.

The court granted the individual defendants' motion to strike all claims without leave to amend, finding no reasonable cause of action for personal liability.

The court also granted Queens Walk Inc.'s motion to strike the punitive damages claim, but with leave to amend, as the plaintiffs failed to plead sufficient material facts to support it.

The plaintiff sold shares of a real estate brokerage to the defendant purchaser under a share purchase agreement and promissory note for $490,000.

After making several instalment payments, the purchaser stopped paying and alleged numerous misrepresentations and breaches of warranty relating to financial statements, agent rosters, liabilities, and business operations, seeking damages and repayment through a counterclaim.

The court found that the purchaser was a sophisticated businessperson who conducted limited due diligence and knowingly proceeded without contractual protections or price adjustments.

Alleged misrepresentations regarding financial statements, agent numbers, liabilities, and business practices were unsupported, and the purchaser did not rely on them when entering the agreement.

Although the vendor breached the agreement by failing to provide audited financial statements, the breach caused no damage and was effectively waived.

The vendor was therefore entitled to recover the outstanding balance under the promissory note and the counterclaim was dismissed.

The plaintiff objected to the admissibility of a proposed accounting expert retained by the defendants in a commercial dispute involving alleged irregularities in corporate financial records and the valuation of shares.

The objection was based on allegations that the expert lacked independence due to a professional relationship with a trustee in bankruptcy connected to the underlying corporation and that the expert lacked sufficient expertise in industry standards.

The court considered the effect of Rules 4.1 and 53.03 of the Rules of Civil Procedure and whether those provisions impose a higher duty of independence than at common law.

The court held that alleged institutional bias arising from professional connections generally affects the weight of expert evidence rather than its admissibility.

Finding the expert met the Mohan admissibility criteria and possessed sufficient expertise, the court permitted the expert to testify.