Daniel F. Chitiz

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.

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 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 plaintiffs, judgment creditors of the defendant Sandy DiFlorio, brought a motion for leave to issue a certificate of pending litigation against a property owned by Sandy's son.

The plaintiffs alleged that a $300,000 mortgage advance from Sandy to his son was a fraudulent conveyance designed to defeat creditors.

The court applied the criteria under section 103(6) of the Courts of Justice Act and found the plaintiffs had a reasonable claim to an interest in the land.

The motion for a certificate of pending litigation was granted.

A secondary motion to strike a statement of defence for unpaid costs was dismissed with leave to renew if costs remained unpaid.

Following a dispute over costs after the underlying proceeding, the applicants sought costs on a substantial indemnity basis, while the respondents argued for a significantly reduced amount and objected to certain disbursements.

The court held that substantial indemnity costs were not warranted because there was no reprehensible conduct in the litigation.

On a partial indemnity basis, the court reviewed the hours claimed by counsel and rejected arguments that the applicants’ legal team engaged in excessive duplication, although some preparation time was considered excessive.

The court also allowed disbursements for professional witnesses, finding that accountants called as fact witnesses were entitled to compensation for their time in preparing affidavits, attending cross‑examinations, and testifying.

Total costs payable were fixed at $58,034 inclusive of HST.

The applicants sought an order permitting their accountants to finalize draft closing statements following the sale of shares in a technology company.

The respondents argued that an adjustment for allegedly obsolete inventory should be considered and requested appointment of a third accountant under the purchase agreement.

The court found that the respondents failed to raise the inventory issue within the contractual 15‑day period for commenting on draft closing statements and had not engaged their own accountants to trigger the dispute‑resolution mechanism.

The court rejected arguments of waiver and declined to grant equitable relief from forfeiture under s. 98 of the Courts of Justice Act, finding the respondents’ conduct unreasonable and unsupported by evidence of a valid claim.

The application was granted and the draft closing statements were ordered finalized.

The applicant brought a motion seeking reconsideration and variance of a prior order requiring the respondent to produce a redacted shareholder agreement.

The applicant argued that Schedule “A” contained additional information about the type and number of shares held by shareholders which was necessary to assess corporate power dynamics and share value.

The court reviewed the schedule but held that the additional information did not justify altering the prior ruling.

The court found the information confidential to the private company and of little relevance to the applicant’s claims.

Concluding that the motion was an attempt to re‑litigate issues previously decided, the court dismissed the motion and awarded costs to the respondent.

The court determined costs following the dismissal of a defendant’s motion for summary judgment.

The plaintiff sought costs on a full indemnity scale or alternatively on a partial indemnity scale, arguing the motion should never have been brought.

The court declined to award full indemnity costs, noting that summary judgment jurisprudence was still developing following amendments to the Rules of Civil Procedure and the decision in Combined Air Mechanical Services Inc. v. Flesch.

While the court found the time spent by counsel generally reasonable given the factual complexity and cross‑examinations, it concluded the amount sought exceeded what the defendant could reasonably have expected to pay.

The plaintiff was awarded $65,000 in fees and disbursements.

The defendant brought a motion for summary judgment arguing that the plaintiff’s action to recover funds advanced during a former romantic relationship was barred by the applicable limitation period.

The dispute concerned whether substantial funds used for the renovation of the defendant’s law office constituted a loan or a gift and whether the defendant, a lawyer who had professional dealings with the plaintiff’s business, owed and breached a fiduciary duty.

The court held that the nature of the parties’ personal and professional relationship, the characterization of the transactions, and the existence of any fiduciary duty or conflict of interest required credibility findings that could not be made on a summary judgment motion.

The court also noted that the resolution of these issues could affect whether a limitation period applied.

The motion for summary judgment was therefore dismissed.