Christopher S. Spiteri

The applicants sought to set aside an arbitral award under section 46 of the Arbitration Act, 1991, and moved for leave to introduce fresh evidence.

The court found that the fresh evidence was not relevant to the issues before the arbitrator and would not have affected the outcome.

The application was dismissed as an impermissible appeal of the merits of the arbitration, as the parties had excluded any right of appeal in their agreement.

The court confirmed that section 46 provides only limited grounds for setting aside an award and is not a substitute for an appeal.

Costs were awarded to the respondent.

Lukus Abraham, the successful applicant in a prior arbitration enforcement application, sought substantial indemnity costs.

The respondents, Andrew Abraham and A. Abraham Holdings Ltd., argued for partial indemnity costs.

The court declined to award substantial indemnity costs based on the respondents' conduct, finding it not egregious.

However, the court awarded partial indemnity costs up to the date of Lukus's Rule 49.10 offer to settle, and substantial indemnity costs thereafter, as the result obtained was as favourable as the offer.

The court fixed costs at $34,000, all-inclusive, to be paid by the respondents within 30 days.

Lukus Abraham applied to enforce an arbitration award against Andrew Abraham and A. Abraham Holdings Ltd. The award stemmed from a settlement agreement breach, where Andrew ceased payments.

Andrew sought to set aside the award and appeal, alleging procedural unfairness and errors in quantum calculation.

The court found Andrew's arguments to be substantive attacks on the arbitrator's findings, which were immune from appeal under the arbitration agreement, rather than valid procedural fairness issues under s. 46 of the Arbitration Act, 1991.

The court also dismissed Andrew's attempts to introduce new evidence and an equitable set-off argument due to different parties.

The application to enforce the award was granted, with the court noting the relative hardship weighed in favor of enforcement.

The plaintiff sought critical illness insurance benefits after being diagnosed with cancer, two months after he had requested cancellation of his policy.

Both parties moved for summary judgment.

The court found that the policy unambiguously required a diagnosis to occur while coverage was in force.

Since the diagnosis occurred after the policy was cancelled due to the plaintiff's own initiative and non-payment of premiums, there was no coverage.

The court also denied relief from forfeiture, as the policy had terminated due to non-payment, not a breach, and thus no property was forfeited.

The plaintiff's motion was dismissed, and the defendant's motion for summary judgment was granted.

The plaintiffs, commercial tenants, obtained an interim interlocutory injunction prohibiting the defendant landlord from forfeiture actions.

The landlord subsequently sought to set aside the injunction, while the tenants sought its continuation pending a summary judgment motion regarding the enforceability of minutes of settlement that purportedly amended the lease.

The court applied the RJR-MacDonald test, finding a serious issue to be tried regarding the minutes of settlement, irreparable harm to the tenants if the injunction was not continued, and that the balance of convenience favoured continuation.

The court dismissed the landlord's motion to set aside the injunction and ordered its continuation until the summary judgment motion, with the tenants providing undertakings for damages.

The appellants purchased a rural property in late 2009 and subsequently discovered that an adjoining property had an option to purchase registered in favor of a solar farm company.

The appellants claimed they would not have purchased the property had they known of this option.

They sought damages from the respondent, a real estate professional, for negligence.

The motion judge dismissed the claim on the basis that the two-year limitation period had expired before the claim was instituted.

The appellants appealed, arguing the limitation period did not begin to run until construction of the solar farm commenced in February 2013.

The Court of Appeal upheld the dismissal, finding that the appellants discovered their cause of action by February 2010 when they learned of the solar farm option and its negative impact on property value.

The defendants brought a motion to set aside a default judgment, noting in default, and notice of garnishment obtained by the plaintiff in a mortgage enforcement action.

The defendants' counsel had inadvertently failed to file a statement of defence.

The court found that the plaintiff's counsel engaged in sharp practice by noting the defendants in default without providing fair warning, despite knowing the defendants were represented by counsel.

Applying the Kisel factors, the court set aside the default judgment, noting in default, and notice of garnishment, and awarded costs to the defendants.

This endorsement addresses the costs arising from the dismissal of the Plaintiff's motion for summary judgment.

The Defendants, as the successful parties on the summary judgment motion, sought costs in the range of $17,000-$19,000.

The Plaintiff argued for deferral of costs to the trial judge or a significantly lower award, citing that some defence materials would be used at trial and the limited value/complexity of the motion.

The court found the Defendants' costs claim reasonable, noting the Plaintiff's own higher costs outline for the original motion and the "pay-as-you-go" principle for interlocutory motions.

The court awarded the Defendants $12,000 in all-inclusive costs, plus an additional $500 for preparing the costs submissions.

The appellants appealed a trial judgment upholding a Sharia Law-based arbitration award rendered in Iran regarding a property dispute between brothers.

The trial judge found that the appellants had clearly agreed to be bound by the arbitrator's judgment, all four conditions for a binding Sharia Law ruling had been met, and the appellants were estopped from relitigating the same issues in Ontario.

The appellants argued the International Commercial Arbitration Act should apply, but the trial judge found the application was out of time and, in any event, there was no unfairness in the arbitral proceeding.

The Court of Appeal upheld the trial judgment, finding no error and deferring to the trial judge's factual findings.

This is a costs endorsement following a successful summary judgment motion brought by the defendant, Tanya Lemcke, on the grounds that the plaintiffs' action for damages was prescribed by the statutory limitation period.

The defendant claimed partial indemnity costs, which the plaintiffs opposed, raising concerns about the amount, the timing of the summary judgment motion, and costs already received.

The court applied Rule 57.01(1) factors, acknowledging the defendant's success but reducing the claimed fees due to unnecessarily incurred mediation costs.

Disbursements were awarded in full.

The defendant Tanya Lemcke brought a motion for summary judgment to dismiss the action against her, arguing that the plaintiffs' claim was statute-barred by the two-year limitation period.

The plaintiffs, Louis Sirois and Chandra Martens, alleged that Ms. Lemcke, their real estate agent, failed to disclose plans for a solar farm on an adjacent property, which they became aware of in early 2010.

The court found that the plaintiffs discovered their cause of action by February 2010, as they knew they had suffered damage, even if the full extent was unknown.

Consequently, the two-year limitation period expired in February 2012, prior to Ms. Lemcke being added as a defendant in November 2013.

The motion for summary judgment was granted, dismissing the action against Ms. Lemcke.

The plaintiff, G.M. French Construction Co., sought leave to bring a summary judgment motion and summary judgment for unpaid invoices totaling $74,454.79, less a Tarion defect amount, arising from a cost-plus contract to build a new home.

The plaintiff also sought to dismiss or stay the defendants' counterclaim.

The court, applying the test from Hryniak v. Mauldin and s. 67 of the Construction Lien Act, found that there were genuine issues requiring a trial, including disputes over change orders, the value of unapproved changes, work performance, project delays, and the consultant's payment approvals.

Consequently, leave for the summary judgment motion and the motion for summary judgment were denied.

Following a judgment in favour of the defendant, the parties were unable to agree on costs.

The plaintiffs argued no costs should be ordered because they were relatively successful at case conferences and the case was precedent-setting regarding the recognition of a Sharia Law arbitration decision.

The court found that while the litigation was not completely unfounded, the defendant was entirely successful at trial and awarded partial indemnity costs of $53,116.82.

This motion sought to set aside a Certificate of Pending Litigation (CPL) registered against property owned by Anita Ricci, which Stephen Jaworski, as co-executor, claimed was part of their father's estate.

Anita Ricci argued material non-disclosure by Stephen Jaworski when obtaining the ex parte CPL.

The court found no material non-disclosure and upheld the CPL, concluding that the estate had a triable interest in the property due to the presumption of resulting trust for gratuitous transfers to adult children.

The defendant brought a motion seeking to apply the doctrine of res judicata to an arbitral award rendered under Sharia Law in Qom, Iran, which had addressed a dispute over the distribution of proceeds from a jointly owned property in Lebanon.

The plaintiffs, who initiated the Ontario proceedings, argued the arbitration was merely advisory.

The court found that the arbitration was a binding judicial decision by a competent jurisdiction, meeting the preconditions for issue estoppel.

It dismissed the plaintiffs' statement of claim, concluding that the dispute had been finally resolved by the arbitrator and that the International Commercial Arbitration Act's time limits for challenging an award had passed, with no "real unfairness" warranting setting it aside.

The applicant sought to enforce an arbitration award against the respondents by way of an application.

The court previously converted the application into an action because material facts were in dispute, and directed the parties to make written submissions on costs for the preliminary motion.

The court denied costs to both parties.

The applicant was denied costs because it should have known an application was inappropriate given the disputed facts.

The respondents were denied costs due to egregious deficiencies in their responding affidavit and delays in satisfying undertakings.

The applicant sought to enforce a 2013 arbitration award against individual respondents associated with a dissolved corporation that had been the party to the arbitration.

The applicant argued that the arbitration clause bound administrators or assigns, that the corporate veil should be pierced, and that personal liability or oppression remedies justified enforcement against the individuals.

The court held that enforcement proceedings under the Arbitration Act are limited to enforcing the award itself and do not authorize determining new liability against non‑parties to the arbitration.

Because resolving the applicant’s claims would require complex factual and legal determinations, including corporate veil and oppression issues, the matter could not proceed by application.

The court ordered that the claim proceed by way of an action.

The plaintiff tenant brought a motion seeking various remedies including contempt findings, striking the statement of defence, sequestration, and other relief arising from alleged repeated breaches of court orders by the defendant landlord and its principal.

The court reviewed a lengthy procedural history involving numerous orders related to lease obligations, discovery compliance, and remediation work at the leased premises.

The defendants repeatedly failed to comply with several court orders, including orders requiring document production, attendance at examinations and cross‑examinations, and completion of repair obligations.

The court held that the defendants’ persistent non‑compliance and disregard for court orders justified the extraordinary remedy of striking the statement of defence.

The remaining requested relief, including contempt findings, was dismissed due to procedural deficiencies.

A bankrupt applicant sought an order under s. 178(1.1) of the Bankruptcy and Insolvency Act declaring that the statutory non-dischargeability of student loan debt under s. 178(1) did not apply.

The court considered the applicant’s circumstances, including long‑term financial hardship, limited earning capacity, and significant personal and medical challenges.

Applying the statutory two‑part test, the court was satisfied the applicant had acted in good faith in connection with the student loans and continued to experience financial difficulty that would prevent repayment.

The court concluded the statutory criteria were met and granted relief permitting the discharge of the student loan debt.