Daniel F. Chitiz

The plaintiff sought specific performance of a commercial real estate transaction that failed to close in April 2020, arguing that pandemic-related financing delays prevented closing and that the vendor acted unreasonably in refusing a further extension.

The court found the vendor tendered on closing and was ready, willing, and able to complete the transaction, while the purchaser lacked funds and had only conditional financing that was not available on the closing date.

The court held that COVID-19 did not create a free-standing legal excuse for contractual non-performance and distinguished authorities where pandemic conditions formed only part of the factual matrix or where the opposing party was not ready to close.

The action for specific performance was dismissed, and the vendor's counterclaim for a declaration of forfeiture of the $200,000 deposits was granted.

Relief from forfeiture was refused.

The appellants appealed a trial judgment that required them to pay a real estate commission.

The primary issue at trial was whether Sandeep Jhutty had initialed an acknowledgement on a Buyer Representation Agreement, which the trial judge found he had.

On appeal, the appellants argued the trial judge erred by reversing the onus of proof and by finding the individual appellants jointly and severally liable without providing reasons.

The Court of Appeal dismissed the appeal, affirming that the standard of proof applies to the final evaluation of liability, not piecemeal, and that the joint and several liability was consistent with a prior consent order.

The plaintiff brought a motion to examine representatives of two non-party corporate shareholders (Lake and JLA) under Rule 31.03(8), arguing the action was being defended for their immediate benefit due to an indemnification agreement and litigation accrual fund.

The plaintiff also sought a further and better affidavit of documents.

The court found that the non-parties had a direct financial interest in the outcome and were beneficial parties.

The court ordered the examinations of the non-parties' principals, limited to 10 hours total, and ordered the defendant to serve a further and better affidavit of documents.

The plaintiff real estate brokerage sued the defendants for a $250,000 commission under a Buyer Representation Agreement (BRA) after the defendants purchased a commercial property.

The sole issue at trial was whether the defendant signed a specific initial on the BRA extending its term to one year, which would cover the date of the purchase.

Both parties called forensic document examiners to testify on the authenticity of the initial.

The court found the plaintiff's expert more reliable and concluded on a balance of probabilities that the defendant did sign the initial.

The plaintiff was awarded the $250,000 commission.

Following their separation, the parties disputed the ownership and value of their jointly built business, Holdco.

The applicant claimed he owned 70% of the common shares, while the respondent claimed a 50% ownership based on their post-separation conduct and equal dividend payments.

The court found the respondent owned 50% of the shares, noting that the corporate records were inaccurate and the applicant had treated the respondent as an equal owner.

The court also held that the claim was not statute-barred and valued the business at $10,800,000, ordering the applicant to pay the respondent $5,400,000 for her shares.

The applicant brought a motion for summary judgment to dismiss the respondent's action regarding the allocation of shareholdings in a holding company.

The parties, former spouses, disputed whether the respondent owned 30% or 50% of the shares, with the respondent claiming a constructive trust over 20% of the shares due to family law and unjust enrichment principles.

The court found that the corporate records were deficient and that the intertwined family law complexities, including the respondent's decision not to seek an equalization payment, created critical factual disputes.

The court concluded there was a genuine issue for trial and denied summary judgment.

The moving party sought leave to appeal the order of Dow J. dated March 10, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 for the stay motion and $5,000 for the motion for leave to appeal to the responding party.

The respondent moved for a stay pending leave to appeal an adjournment order by Dow J., which required her to repay $500,000 of $600,000 drawn on a line of credit.

The court expressed concerns about the meta-motions, the connection to family law proceedings, the likelihood of obtaining leave to appeal a discretionary order, and the potential for the respondent to consume the funds.

The court decided to convene a case conference to discuss process issues for the urgent application, inviting family law counsel, and noted that a judge might be designated to ensure efficient handling.

This endorsement addresses a procedural case conference concerning ongoing litigation between separated spouses.

The applicant, Mr. Hrvoic, initiated an application for Ms. Hrvoic to sell her shares in a family business.

Following Mr. Hrvoic's termination of Ms. Hrvoic's employment, Ms. Hrvoic "borrowed" $600,000 from a line of credit.

Dow J. subsequently ordered Ms. Hrvoic to repay $500,000 of this amount.

Ms. Hrvoic now seeks leave to appeal this term and an urgent stay pending appeal.

The court noted the parties' contentious approach and set a schedule for the motion for a stay pending appeal, declining to grant an interim stay.

This is a costs endorsement following a successful summary judgment motion where the defendants' action was dismissed as statute-barred.

The defendants, as the successful parties, sought costs on a partial indemnity scale.

The plaintiffs opposed, arguing for a reduction based on the defendants' limited success on all grounds of the summary judgment motion and alleged conduct that lengthened the proceeding.

The court found no reason to depart from the usual rule that costs follow the event, rejecting the plaintiffs' arguments regarding distributive costs and alleged conduct.

The court fixed costs of the action at $156,599.20, inclusive of fees, disbursements, and HST, to be paid by the plaintiffs to the defendants.

The plaintiffs, Michael and Solbyung Coveley, brought a professional negligence action against their former law firm, Thorsteinssons LLP, and several lawyers, alleging negligent advice regarding tax appeals.

The defendants moved for summary judgment, arguing the action was statute-barred under the Limitations Act, 2002.

The court found that the plaintiffs knew or ought to have known of their claim by October 27, 2010, when they received advice that fundamentally contradicted earlier assurances about the strength of their tax appeals.

As the action was commenced on November 2, 2012, more than two years after discovery, the claim was statute-barred.

The defendants' motion for summary judgment was granted, and the action was dismissed.

This application addressed which of two innocent parties, Bank of Montreal (BMO) or Asia Pacific International Inc. (API), should bear the loss from a third-party fraud.

An imposter fraudulently obtained a wire transfer of $428,000 from a BMO client's account to API's account for a gold purchase.

API subsequently released the gold to the fraudster.

BMO sought recovery based on a mistake of fact.

The court applied the "two innocent victims" framework, finding BMO was in a better position to prevent the fraud due to its lack of diligence in verifying the imposter's identity.

The court also determined that API could rely on the change of position defence, as its conduct, while lacking diligence, did not constitute wrongful or illegal activity under the Proceeds of Crime Act that would preclude recovery.

BMO's application was dismissed, and the funds were ordered released to API.

Gabor Horvath, founder and majority shareholder of Securefact Inc., brought an application under the Ontario Business Corporations Act to rescind a resolution removing him as a director.

Horvath had previously agreed to vote his shares as instructed by the principal lender, 2283074 Ontario Inc. (228), with an exception for matters "relating to the redemption" of 228's Class A shares.

Horvath argued that the resolution to remove him, and his counter-proposals, related to a potential transaction that would redeem 228's shares, thus falling under the exception.

The court dismissed the application, finding that the "relating to" exception was not intended to gut the primary purpose of the voting undertaking, which was to give 228 control over the company's management.

The court also found the oppression remedy claim premature.

The appellant appealed a summary judgment order enforcing an indemnity agreement for $1,170,312.47.

She argued her signature was forged and relied on the defence of non est factum, while also claiming the motion judge should have drawn an adverse inference from a witness's refusal to answer questions during cross-examination.

The Court of Appeal dismissed the appeal, finding no evidence of forgery or misrepresentation, and concluding the appellant was careless in signing documents without reading them.

The plaintiff surety brought a motion for summary judgment against an individual defendant based on an indemnity agreement guaranteeing reimbursement for payments made under lien bonds issued for several corporate defendants.

The defendant denied signing the agreement and alternatively asserted the defence of non est factum, alleging she had not understood the nature of the document.

The court found on the evidence, including the testimony of a subscribing witness and the defendant’s cross‑examination, that the defendant had signed the agreement.

The court held the defence of non est factum was unavailable because there was no evidence of misrepresentation and the defendant had been careless in signing documents without inquiry.

Summary judgment was granted for the amount paid under the bonds, while the claim for additional fees and expenses was not granted due to lack of evidentiary support.

The appellants appealed a Registrar's order requiring a family farming corporation to disclose documents and its directors to submit to examinations under the Bankruptcy and Insolvency Act.

The trustee sought the information to value the bankrupt's shares in the corporation.

The appellants argued the trustee's access should be limited to shareholder rights under the OBCA.

The court dismissed the appeal, finding the trustee is entitled to information relevant to valuing the shares and that there is no conflict between the BIA and directors' duties under the OBCA.

The court granted the trustee's cross-appeal, holding the Registrar lacked authority to order written interrogatories in lieu of an oral examination under s. 163 of the BIA, and awarded costs to the trustee.

This was a costs endorsement following dismissal of an application seeking appointment of a sole arbitrator under a 2009 agreement.

The successful party sought $32,896.93, including partial indemnity fees to December 7, 2012 and substantial indemnity thereafter based on an offer to settle.

The court rejected substantial indemnity costs, found some of the successful party's arguments and cross-examination unhelpful or irrelevant, and reduced the requested amount.

Fair and reasonable costs were fixed at $22,000 all-inclusive, payable forthwith.

Following an appeal and cross-appeal where success was divided, the parties made written submissions on costs.

The Divisional Court ordered no costs for the appeal due to the divided success, noting the significant finding of oppressive conduct by the appellants.

The court also set aside the application judge's costs award of $25,000 due to the altered outcome, but upheld the award of $14,790 plus HST for accounting fees, as the appellants' conduct necessitated retaining accountants.

A partnership sought the appointment of an arbitrator under the Arbitration Act, 1991 following the withdrawal of a former partner and the issuance of a notice of arbitration alleging breaches of the partnership agreement.

The former partner moved to stay the arbitration pending resolution of a separate civil action involving other former partners and raised counterclaims challenging the validity of provisions in the partnership agreement.

The court held that the arbitration clause in the partnership agreement was broad and that the disputes raised by the partnership clearly fell within its scope.

The court found that the respondent’s counterclaim in the civil action was a colourable attempt to sidetrack the arbitration and that the issues could properly be determined by an arbitrator.

The motion to stay the arbitration was dismissed, the respondent’s counterclaim in the civil action was stayed, and the court appointed an arbitrator pursuant to the Arbitration Act, 1991.

The appellant, a tobacco farmer with a 40-year unblemished record, appealed a decision by the Ontario Flue-Cured Tobacco Growers' Marketing Board that denied his 2014 licence to produce tobacco.

The Board had found that the appellant contravened the General Regulations by failing to immediately affix stickers to bales of tobacco, resulting in the seizure and sale of the unlabelled bales.

The Tribunal upheld the finding that the appellant violated the regulations and found the seizure of the tobacco to be an appropriate penalty.

However, considering mitigating factors such as the appellant's unblemished record and cooperation, the Tribunal found the refusal to issue a 2014 licence to be too severe and ordered that the licence be granted.