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 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 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 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.

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.

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, 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 sought leave to appeal an order granting the respondent exclusive possession of the matrimonial home under s. 24(3)(f) of the Family Law Act based largely on hostile and threatening text messages sent during the parties’ separation.

The appellant argued the motion judge misapplied the law and that conflicting case law required more than text messages to establish “violence.” The court held that differing outcomes in other cases reflected discretionary factual determinations rather than conflicting legal principles.

The court found no reason to doubt the correctness of the original order and held that intimidation or psychological abuse conveyed through text messages can constitute violence depending on the factual context.

Leave to appeal was therefore denied.

Following a family law motion in which the applicant obtained exclusive possession of the matrimonial home, the court considered the appropriate costs award.

The applicant sought full recovery alleging bad faith arising from the respondent’s failure to provide timely financial disclosure.

The court declined to find bad faith, holding that the evidentiary record did not establish an intent to deceive or conceal information.

Although the applicant was the successful party, the court found her conduct partially unreasonable for failing to serve an offer to settle and for serving key affidavit evidence only two days before the motion.

Costs were reduced accordingly and a partial recovery awarded.

The applicant sought interim spousal and child support, section 7 expenses, and a preservation order.

The parties lived a lavish lifestyle during the marriage, funded by a mix of income and capital.

Due to the respondent's inadequate financial disclosure, the court imputed an income of $250,000 for child support purposes and ordered combined interim support of $20,000 per month, recognizing the respondent would need to encroach on capital to pay it.

The request for a preservation order was dismissed to allow the respondent to utilize capital for support.

An investor sued a discretionary portfolio manager and its representatives for breach of fiduciary duty, negligence, and breach of contract after the manager failed to promptly diversify an inherited, highly concentrated equity portfolio heavily weighted in Nortel, BCE, and TD shares.

The court found the manager knew diversification was the client's objective but failed to implement it or clearly communicate any staged diversification strategy or associated risks.

The court held that maintaining the concentrated portfolio for several months without proper disclosure or client agreement breached the manager’s duties of care and contractual obligations.

However, individual defendants without trading authority were not liable.

Damages were assessed based on a diversified portfolio consistent with the client’s Investment Policy Statement.

On a motion for interim spousal support following a 24‑year marriage, the court considered how to determine income where the payor spouse’s earnings fluctuated significantly due to cyclical real estate development projects.

The applicant argued that support should be based on a multi‑year average exceeding $2 million annually, while the respondent claimed current income of approximately $214,000.

The court rejected both extremes, finding the unusually high income in certain years was anomalous but also concluding the claimed post‑separation income decline was not adequately supported.

Considering historical earnings patterns, capital gains history, and the respondent’s own spending levels, the court imputed income in the range of $700,000–$800,000 for interim purposes.

Interim spousal support was fixed at $25,000 per month and made retroactive to January 1, 2012.

The plaintiff brought an urgent motion seeking injunctive relief and an Anton Piller order against former employees and a competing corporation.

Evidence indicated that one former employee downloaded thousands of confidential corporate files prior to leaving employment and that the defendants were using the information to compete for the plaintiff’s principal customer.

Applying the three‑part test for interlocutory injunctions under the Courts of Justice Act and the Rules of Civil Procedure as articulated in RJR‑MacDonald Inc. v. Canada (Attorney General), the court found a serious issue to be tried, irreparable harm to the plaintiff’s business, and that the balance of convenience favoured the plaintiff.

The court held that the defendants’ conduct arguably breached contractual confidentiality obligations, restrictive covenants, and duties of confidence.

Injunctive relief restraining the defendants’ conduct was granted.

The applicant mother brought an interim motion seeking sole custody, exclusive possession of the matrimonial home, and substantial retroactive child and spousal support based on an imputed income of $700,000 to the respondent father.

The court declined to determine custody on the limited interim record but confirmed that the child would primarily reside with the mother in the matrimonial home.

The request for exclusive possession was denied because the evidence did not establish that the father’s continued presence posed a threat to the child’s best interests under s. 24 of the Family Law Act.

The court assessed the father’s interim income at $325,000 and ordered table child support and high-range spousal support under the Spousal Support Advisory Guidelines, retroactive to November 1, 2011.

Requests for section 7 expenses and further disclosure were deferred.