Daniel Bernstein

The appellant husband appealed an arbitrator's award dismissing his claim to a 50 percent beneficial ownership interest in the matrimonial home.

The husband had transferred his jointly-held interest in the home to the respondent wife to protect it from potential creditors.

The arbitrator found the transfer was a gift, not a resulting trust.

The Superior Court of Justice dismissed the appeal, finding the arbitrator correctly applied the presumption of resulting trust, properly considered the husband's intention to defeat creditors, and made no palpable and overriding error in concluding the husband intended to gift his interest and divested himself of control over the property.

The Ontario Securities Commission approved a settlement agreement with Royal Mutual Funds Inc. (RMFI) regarding breaches of mutual fund sales practices.

RMFI paid its representatives enhanced compensation for selling proprietary funds over third-party funds, contravening NI 81-105, and failed to maintain adequate compliance systems under NI 31-103.

The Commission approved the settlement, which included a reprimand, a $1,100,000 administrative penalty, and $20,000 in costs, finding it reasonable and in the public interest given RMFI's cooperation and remedial steps.

The third party brought a motion for summary judgment to dismiss the defendants' third party claim for contribution and indemnity as statute-barred under s. 18 of the Limitations Act, 2002.

In a previous motion in the same action, another third party successfully struck the defendants' third party claim on the basis that the two-year limitation period commenced upon service of the statement of claim, without regard to discoverability.

The court held that the defendants were precluded by the doctrine of issue estoppel from relitigating the limitation period issue.

The motion was granted and the third party claim was dismissed.

The third parties, EMK, brought a motion for summary judgment to dismiss the defendants' third party claim for contribution and indemnity arising from a fire at a poultry processing plant.

EMK also sought a declaration that Belgian law governed the contract for the sale of a boiler to the defendants.

The court applied the closest and most substantial connection test and determined that Belgian law governed the contract.

However, the court dismissed the motion for summary judgment, finding that a fair and just determination of whether EMK had knowledge of the alleged defects under the Uniform Law on the International Sale of Goods could not be made prior to the trial of the main action, as it risked inconsistent findings of fact.

The applicant brought an application under the Solicitors Act for an order directing the assessment of the accounts of her former law firm.

The applicant had paid the final bill and brought the application more than one month after its delivery, requiring her to establish special circumstances.

The court found that special circumstances existed, noting the applicant's lack of sophistication in litigation, the large amount of the accounts, her expressions of concern regarding the bills, and her reasonable belief that she had to pay the accounts for her file to be transferred.

The application was granted and the accounts were ordered to be assessed.

The appellant appealed a Master's decision refusing to set aside an administrative dismissal for delay and refusing to add further defendants.

The Divisional Court found no error of legal principle or palpable and overriding error of fact in the Master's application of the four-part Reid test.

The Master had correctly concluded that the appellant failed to adequately explain the delay, failed to prove inadvertence, and failed to rebut the presumption of prejudice.

The appeal was dismissed with costs awarded to the respondents.

The plaintiff initiated an action alleging fraud, deceit, and misrepresentation against the defendants concerning a property transaction and mortgage.

Despite early settlement offers from the defendants, the plaintiff did not accept them.

The action was ultimately dismissed on consent immediately prior to a scheduled summary judgment motion.

The court, in this costs ruling, awarded the defendants full indemnity costs, determining that the plaintiff's allegations were ill-founded and significantly detrimental to the defendants' professional reputations, thereby justifying a higher scale of costs.

The moving party sought leave to appeal an interim order that reduced the responding party's child and spousal support obligations based on a material change in circumstances following his loss of employment.

The moving party argued the motions judge erred in finding a material change and failing to impute income.

The Divisional Court dismissed the motion for leave to appeal and the motion for a stay, finding no conflicting decisions, no good reason to doubt the correctness of the interim order, and noting that the issue of imputing income was not raised before the motions judge.

The appellant lawyer appealed an order dismissing his motion to enforce a settlement agreement reached with the respondents.

The Divisional Court found the motions judge's one-sentence endorsement lacked adequate reasons, preventing appellate review.

Exercising its jurisdiction under the Courts of Justice Act, the Divisional Court heard the motion on its merits.

The court found that the parties' counsel had reached a binding settlement agreement via email, agreeing on the essential terms of a $15,000 payment and a full and final release.

The respondents' subsequent refusal to sign the documents was an improper attempt to resile from the agreement.

The appeal was allowed and the settlement enforced.

The plaintiff moved to set aside a registrar's order dismissing his professional negligence action for delay and sought leave to amend his statement of claim to add his former lawyers as defendants.

The court dismissed the motion to set aside the dismissal, finding the plaintiff made a deliberate decision not to pursue the litigation and failed to rebut the presumption of prejudice.

The court also dismissed the motion to add the former lawyers as defendants, concluding that the proposed claims were either statute-barred under the Limitations Act, 2002 or legally untenable.

The plaintiff moved to set aside a registrar's order dismissing his solicitor negligence action for delay and sought leave to amend his statement of claim to add his former lawyer and law firm as defendants.

The court dismissed the motion to set aside the dismissal, finding the plaintiff failed to adequately explain the delay, failed to prove inadvertence, and failed to rebut the presumption of prejudice to the defendant.

The court also dismissed the motion to add the former lawyer as a defendant, concluding that the proposed claims were either untenable or barred by the two-year limitation period under the Limitations Act, 2002.

In a group of related civil proceedings involving multiple plaintiffs and the same defendants, the court considered a request concerning the deadline for filing third party claims.

Following a prior order, the parties jointly sought an extension of time to file all third party claims.

The court granted the request on consent and extended the deadline to September 25, 2015.

The endorsement reflects a procedural timetable adjustment rather than a substantive determination of the underlying claims.

The Ontario Securities Commission issued its decision on sanctions and costs following a merits decision that found the respondents contravened the Securities Act by engaging in insider trading and tipping.

The respondents included a mergers and acquisitions lawyer who instigated the tipping scheme and several investment advisors who traded on and further disseminated the material non-public information.

The Commission imposed 10-year trading bans, permanent or 10-year director and officer bans, and 10-year registration bans for the investment advisors.

The Commission also ordered disgorgement of profits totaling $84,698, administrative penalties totaling $2,150,000, and costs of $500,000 apportioned among the respondents based on their respective culpability and involvement in the proceedings.

Following the dismissal of a defendant’s summary judgment motion, the successful plaintiffs sought substantial indemnity costs exceeding $85,000.

The moving party argued the amount was excessive, disproportionate to the damages claimed, and that substantial indemnity was unwarranted, also challenging inclusion of an expert report cost that the court previously found unhelpful.

The court confirmed that substantial indemnity costs are generally reserved for Rule 49 settlement consequences or reprehensible conduct, neither of which was present.

Applying the Rule 57.01 factors and proportionality, the court awarded partial indemnity costs and removed the expert report expense from recoverable disbursements.

The moving party sought leave to appeal to the Divisional Court from an order dismissing a motion to enforce a settlement agreement.

The motion judge had dismissed the motion with a single-sentence endorsement.

The court granted leave to appeal, finding that the motion judge's failure to provide adequate reasons constituted an error of law, satisfying the test that there is reason to doubt the correctness of the decision and that the issue is of general importance to the administration of justice.

The applicant lawyer sought leave to appeal an interlocutory order dismissing his motion for summary judgment.

The underlying action involved claims by investors that the applicant breached duties and knowingly assisted in breaches of trust related to mortgage investments.

The Divisional Court dismissed the application for leave to appeal, finding that the motions judge's decision to require a trial for complex factual and legal issues did not give rise to a question of broad significance or general application affecting the development of the law.

The appellant appealed an order striking his pleadings on certain issues for non-compliance with various disclosure orders.

The Court of Appeal found no error in the motion judge's exercise of discretion, noting ample evidence that the appellant remained in default and that the default was wilful.

The motion judge had mitigated the drastic remedy by allowing the appellant to move to reinstate his pleadings on proper evidence, which he failed to pursue in a timely fashion.

The appeal was dismissed.

The applicant filed an application alleging sexual harassment in employment.

She also commenced a civil action in the Superior Court of Justice against the respondents based on the same facts and issues.

The respondents requested that the application be dismissed pursuant to s. 34(11) of the Human Rights Code.

The Tribunal found that the civil action sought remedies for the same alleged Code infringements.

To prevent duplication of proceedings, the Tribunal dismissed the application under s. 34(11).

The moving party, a lawyer who acted for a mortgage lending company, sought summary judgment dismissing claims by multiple investor plaintiffs alleging solicitor negligence, breach of fiduciary duty, and knowing assistance in a fraudulent scheme involving second mortgages.

The plaintiffs alleged the lawyer failed to identify their interests as investors and facilitated transactions that diverted mortgage proceeds to the company’s principal.

The court found material conflicts in the evidence, including disputes regarding independent legal advice, knowledge of the investors, and potential conflicts of interest.

Given credibility issues and complex questions regarding scope of retainer, duty of care, fiduciary obligations, and professional standards, the court held the matter unsuitable for summary judgment under Rule 20.

The motion for summary judgment and the request for security for costs were both denied.

The appellant builder appealed a trial judgment ordering the return of the respondents' deposit and upgrade payments for a new home.

The trial judge found that the appellant's letter extending the closing date amounted to an anticipatory breach of the agreement of purchase and sale, which the respondents accepted, terminating the agreement.

On appeal, the appellant argued the trial judge erred by deciding the case on the unpleaded issue of anticipatory breach.

The Divisional Court dismissed the appeal, holding that the finding of repudiation was a natural consequence of interpreting the documentary evidence and the appellant suffered no unfairness.

The court also upheld the trial judge's costs award to the third-party lawyer.