Christopher Anthony Lawrence Caruana

The appellant challenged refusal to set aside a struck defence and a default judgment imposing trust-based liability for unpaid construction invoices.

The court upheld the motion judge’s findings on delay, credibility, and absence of arguable defence, and confirmed quantum based on deemed admissions under default rules and Construction Act trust obligations.

The decision concerns an application by Sherif Gerges Pharmacy Professional Corporation and Sherif Gerges for the appointment of an inspector under the Ontario Business Corporations Act to investigate the business and financial affairs of Seva Drug Mart Inc. and Eglinton Drugs Inc., as well as for leave to bring derivative actions on behalf of those corporations and Woodbine Downs Healthcare Realty Inc. The court granted the appointment of an inspector and leave to bring the proposed actions, rejecting the respondents' arguments that arbitration provisions applied and that certain claims were statute-barred.

The court also addressed the allocation of costs for the investigation and the proposed actions.

The court considered an application by Sherif Gerges and related entities for a Mareva injunction, a preservation order, and a production order regarding the proceeds of sale of certain real estate.

The court found that while there was a strong prima facie case, the requirements for a Mareva injunction and a preservation order were not met, as the funds in question had already been disbursed and were not readily identifiable.

The court also declined to order further production of documents at this stage.

Costs were fixed against the applicants.

This is a costs endorsement following the dismissal of a motion for reconsideration.

The Court of Appeal for Ontario awarded costs of the motion for reconsideration on a partial indemnity basis in the amount of $2,389.95, inclusive of disbursements and applicable taxes, payable by 6044402 NB Ltd. to Anouk Benzacar.

6044402 NB Ltd. ("604") brought a motion to the Court of Appeal for reconsideration of a previous decision (Benzacar v. Terk, 2023 ONCA 773) concerning its obligations in a garnishment proceeding. 604 sought to recalculate the amount payable to the sheriff, arguing for a lower sum based on new mathematical arguments.

The Court dismissed the motion, finding no arguable merit in the request, that it was an attempt to reargue matters already in issue during the original appeal, and that the interests of finality strongly favoured rejection, especially given 604's unsuccessful application for leave to appeal to the Supreme Court of Canada.

The appellant, Anouk Benzacar, appealed a motion judge's decision regarding the enforcement of a judgment debt against her former spouse, Ira Terk, through garnishment of debts owed by his associated corporations, 6044402 NB Ltd. and 4106971 Canada Inc. The motion judge had found the garnishee statements filed by the corporations, prepared by Terk, to be deficient but not null and void, thus limiting the garnishment.

The Court of Appeal found that 6044402 NB Ltd.'s garnishee statement was materially false and lacked reasonable justification, rendering it equivalent to no statement at all under Rule 60.08(17) of the Rules of Civil Procedure.

This entitled the appellant to an order against 6044402 NB Ltd. for the full amount stated in the notice of garnishment.

The appeal was allowed, and the order below was varied accordingly.

The adult children of the parties brought a motion to be added as third parties to a long-standing family law application, asserting that their interests as discretionary beneficiaries in a family trust (Newlands Family Trust) could be prejudiced by decisions made at the upcoming trial.

The motion was filed on the eve of a six-week trial.

The court dismissed the motion, finding no compelling explanation for the significant delay in bringing the application, and noting the uncertainty regarding the children's standing and the prematurity of their purported cause of action, as discretionary beneficiaries do not possess a direct property interest in trust assets prior to appropriation.

The court emphasized that adding parties late in proceedings should be exercised sparingly and only when demonstrably necessary for the just determination of the litigation.

Costs were awarded against the moving parties.

The Richmond Hill Zone Hockey Association (RHZHA) sought an urgent interlocutory injunction against the Ontario Minor Hockey Association (OMHA) and the Ontario Hockey Federation (OHF).

The RHZHA aimed to prevent the OMHA from dissolving its AAA Level hockey zone and to compel the OHF to reopen its application to transfer membership to the Greater Toronto Hockey League (GTHL).

The court dismissed the motion, finding that while the RHZHA would suffer irreparable harm, much of it had already occurred due to delay.

The court also determined that the balance of convenience favored the OMHA's decision to consolidate zones for the overall benefit of minor hockey, and that the Hockey Canada National Appeals Committee's adverse decision on the OHF's policy interpretation weakened the applicant's case for a mandatory injunction.

The respondent, Camtac, moved for costs of an abandoned application brought by the applicant, Fatigue.

Fatigue had sought to enforce letters rogatory for patent litigation in the U.S. Camtac sought $73,119.59 in costs for the abandoned application and $14,000 for the costs motion itself.

Fatigue conceded $7,500 for the abandoned application.

The court, applying Rule 57.01, found Camtac was entitled to costs but deemed the hours spent and rates charged by Camtac's Canadian and U.S. counsel excessive and unreasonable for an application that did not proceed past the notice stage.

The court awarded Camtac $7,500 in costs for the withdrawn application and interim motion, payable by Fatigue.

In complex litigation arising from a MURB real estate investment and foreclosure action, investor defendants sought a preliminary determination that the development had never achieved a cash flow positive position before the foreclosure proceeding was commenced.

They argued that accounting adjustments relied upon by the developer improperly imputed notional rental income and altered expenses, which if rejected would demonstrate that the mortgage was never in default.

The court held that the competing accounting methodologies, contractual interpretation of the offering memorandum and cash flow guarantee, and disputed factual issues regarding market conditions, vacancies, and management could not be resolved summarily.

These matters required full examination through the reference previously ordered in the case management process.

The applicants, as landlords and mortgagees in possession, sought declaratory relief concerning a commercial lease and possession of the premises.

The central issue was whether the lease had expired in January 2013 or remained in force pursuant to alleged amendments extending the term and providing automatic renewal.

The court found that no proper notice of the purported amendments had been provided to the applicants after they became landlords.

As a result, the amendments were not binding, the lease terminated on January 14, 2013, and the tenant became an overholding tenant subject to a month‑to‑month tenancy.

The month‑to‑month tenancy was validly terminated under s. 28 of the Commercial Tenancies Act, entitling the applicants to possession and a writ of possession.

The plaintiff brought a motion to amend its statement of claim to substitute the individual carrying on business under certain style names as the proper plaintiff instead of the corporate plaintiff.

The defendants opposed the amendment, arguing that it constituted the addition of a new party after the limitation period had expired and that the matter had already been set down for trial.

The court held that the amendment was properly characterized as the correction of a misnomer under s. 21(2) of the Limitations Act and not the addition of a new party.

As the defendants knew the identity of the contracting party and suffered no prejudice that could not be remedied, the amendment was permitted.

The motion was granted, but the plaintiff was denied costs due to delay and ordered to pay costs to the defendants.