Daniel Waldman

The moving parties sought a panel review to set aside a motion judge's order requiring them to pay security for costs within 30 days, failing which their appeal would be dismissed.

The Court of Appeal found no legal error or misapprehension of material evidence in the motion judge's discretionary decision, agreeing that the appeal lacked merit and the justice of the case supported the order.

The motion to set aside the order, and an alternative request for an extension of time to post security, were dismissed.

Costs decision following the landlord's successful motion to stay the tenant's application for injunctive relief and relief from forfeiture pending arbitration.

The landlord sought partial indemnity costs of $20,183.47.

The tenant argued the costs were excessive, disproportionate, and should be reserved to the arbitrator.

The court declined to reserve costs, finding it controls costs of proceedings before it and the arbitration clause might not empower the arbitrator to award such costs.

The court reduced the hours claimed due to duplicative work by three lawyers and disallowed the articling student's attendance costs, awarding $13,500.00 inclusive of HST and disbursements.

The appellants appealed a judgment declaring the respondent the beneficial owner of 15% of a corporation's shares and finding their conduct oppressive under the OBCA.

The appellants narrowed their appeal to challenge only the order requiring production of financial statements dating back to 2014.

The Court of Appeal held that the production order was ancillary to the respondent's damages claim, not a standalone shareholder rights claim subject to a limitation period, and that compliance required only producing existing documents.

The appeal was dismissed with costs of $30,000.

The respondents and third parties brought a motion for security for costs against the appellants pending an appeal of a summary judgment order in a mortgage enforcement action.

The motion judge found that the appeal had a low prospect of success and that the appellants were unlikely to pay a costs award, satisfying the 'other good reason' requirement under Rule 61.06(1)(c).

The court ordered the appellants to post security for costs, though the amount for the plaintiff was reduced as a party should not have to give security simply to defend an order obtained below.

A commercial tenant operating a bar and nightclub sought an urgent application for an interim and permanent injunction to prevent termination of its tenancy and to obtain relief from forfeiture.

The landlord moved to stay the application, arguing that the parties had agreed to resolve disputes through mediation and arbitration.

The court found that the dispute fell squarely within the scope of the arbitration agreement in the lease and granted the landlord's motion to stay the application.

The court declined to grant interim injunctive relief or relief from forfeiture, finding that the alleged breaches—permitting armed individuals to enter the premises leading to a shooting incident and operating an unlicensed adult entertainment facility—were very serious in nature and that the landlord's interests could not be fully vindicated without resort to forfeiture.

The court granted summary judgment in favour of World Financial Solutions Inc. for possession and sale of a Toronto property under a collateral mortgage, dismissing the defences, counterclaim, and third party claims of 2573138 Ontario Ltd. and Marguerite Alfred.

The court found the mortgage was in default, rejected arguments of co-venturer status, conspiracy, and improper sale, and ordered a reference for accounting of sale proceeds.

The decision clarifies the application of summary judgment principles in mortgage enforcement and the limits of technical and equitable defences.

The court granted Alexander Shifrin a declaration that he is a 15% shareholder in LDF Frozen Foods Inc., along with related relief, including rectification of the share register, production of corporate documents, and a direction for a trial on damages.

The decision turned on the credibility of the parties and the existence of an enforceable agreement for Shifrin’s investment and shareholding.

The court found that Shifrin had not been repaid his investment and was entitled to the shares, and that his claim was not statute-barred.

The Applicants sought the appointment of a receiver over several respondent companies, including those jointly owned and those solely controlled by one of the individual respondents, due to alleged misappropriation of funds, mortgage defaults, and corporate oppression.

The court dismissed the application, finding that the statutory bases for appointing a receiver (Courts of Justice Act, Bankruptcy and Insolvency Act, Business Corporations Act) were not met.

The court determined there was no underlying action for interlocutory relief, no irreparable harm shown given the sufficient value of the secured property, and the request for relief against solely-owned companies was brought too late.

This appeal concerned an estate dispute where the appellant sought to exercise dissent rights under the Ontario Business Corporations Act (OBCA) in response to the liquidation of a family-owned holding company.

The application judge found these rights were waived by a Unanimous Shareholders Agreement (USA).

The Court of Appeal dismissed the appeal, affirming that the USA's provisions clearly waived dissent rights and that this interpretation was consistent with the company's purpose of managing estate assets.

The plaintiffs moved for default judgment against the Developer Defendants for alleged misappropriation of $9 million.

Concurrently, the Developer Defendants sought to set aside their noting in default and obtain leave to file a Statement of Defence, asserting they had purged previous contempt orders related to a Mareva and Disclosure Order.

The court reviewed the Developer Defendants' efforts to provide an accounting and disclosure, acknowledging remaining gaps but finding that they had done all that was reasonably possible given the circumstances and passage of time.

The court emphasized that perfect compliance was not required to purge contempt.

Consequently, the Developer Defendants' motion to set aside default and for leave to file defences was granted, and the plaintiffs' motion for default judgment was dismissed.

No costs were awarded to either party, as the plaintiffs were justified in bringing their motion given the history of non-compliance.

The plaintiff, 8174709 Canada Inc., brought a motion for partial summary judgment against the defendant, CBV Collection Services Ltd., for outstanding rent on a commercial lease.

The defendant brought a cross-motion to strike portions of an affidavit based on settlement privilege.

The court dismissed the plaintiff's motion for summary judgment, finding it was not an appropriate case for partial summary judgment due to genuine issues requiring a trial regarding the existence of a binding lease and breach of agreements.

The defendant's cross-motion was also dismissed without prejudice.

The Tenant (Bryfam Enterprises Inc.) brought an application seeking a declaration that its use of the premises was permitted under the lease.

The Landlord (Harbour Carrick Holdings Inc.) responded with a cross-application for a declaration that the Tenant was in breach of the permitted use clause and for an order terminating the lease.

The court found the Permitted Use Clause unambiguous and that the Tenant's expanded menu items (wraps, salads, soups) were not permitted or ancillary to the principal business of a quick service yogurt, smoothie, and waffle restaurant.

The Tenant's arguments of waiver and proprietary estoppel were rejected due to insufficient evidence of the Landlord's knowledge of the breach.

The lease was ordered terminated effective December 31, 2018.

The appellant, a fitness club operator, appealed a judgment declaring it had lost its right to extend its commercial lease with the respondent landlord.

The application judge found the appellant had breached the lease by: (1) operating a fitness club at Park Road in violation of geographic non-compete restrictions; and (2) failing to calculate and report gross revenue in accordance with lease provisions for percentage rental payments.

The appellant was given notice to cure but failed to do so.

The Court of Appeal dismissed the appeal, finding no overriding or palpable errors in the application judge's interpretation of the lease, rejection of waiver and promissory estoppel defences, and refusal to grant relief from forfeiture.

The defendants brought a motion to discharge a certificate of pending litigation (CPL) registered by the plaintiff buyer on a commercial property.

The plaintiff had failed to close the $75 million transaction on multiple extended closing dates due to lack of financing.

The plaintiff argued the 'time is of the essence' clause had been waived by the defendants' conduct.

The court found no triable issue that the clause was waived, as each extension reaffirmed it and the defendants' subsequent communications were settlement offers, not waivers.

The court discharged the CPL, declared the plaintiff had no interest in the property, and ordered the deposits forfeited.

The applicant sought to set aside an arbitral award, arguing that the arbitrator's failure to conduct a conflict search with his former law firm, which had acted for the underwriters of the project and a company whose CFO was a witness, created a reasonable apprehension of bias.

The court found it had jurisdiction to hear the challenge under Article 34 of the Model Law.

However, the court dismissed the application, holding that the connection between the arbitrator and his former firm's clients was too remote to establish a reasonable apprehension of bias, and that an arbitrator who has left a law firm does not have a duty to investigate potential conflicts with that former firm.

The appellant appealed a summary judgment ordering him to pay $814,318.26 and deliver possession of a residential property to the respondent mortgagee.

The appellant argued there were genuine issues for trial regarding the principal amount he assumed and the respondent's allocation of his mortgage payments.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusions that the appellant assumed the full mortgage amount and that his payments were insufficient to bring the mortgage into good standing.

The defendant vendor brought a motion for summary judgment seeking dismissal of the purchaser’s claim, discharge of a certificate of pending litigation, and permission to sell a commercial property to another buyer.

The dispute arose from an agreement of purchase and sale containing a due diligence condition allowing the purchaser to waive the condition after reviewing documentation and conducting inspections.

The vendor argued the conditional period had expired and that the purchaser was unable to obtain financing, rendering the agreement null and void.

The purchaser alleged the vendor failed to provide required documentation and obstructed due diligence, preventing completion of financing and waiver of conditions.

The court held that material facts were contested and that a full appreciation of the evidence required viva voce testimony and the full trial process.

Following a merits decision finding that Coventree Inc. and its senior officers, Geoffrey Cornish and Dean Tai, failed to disclose material changes in breach of the Securities Act, the Ontario Securities Commission held a hearing to determine sanctions and costs.

The Commission emphasized the fundamental importance of timely disclosure to the integrity of capital markets.

While noting mitigating factors such as the respondents' lack of intent to mislead and their cooperation with Staff, the Commission imposed significant administrative penalties to achieve specific and general deterrence.

Coventree was ordered to pay a $1 million penalty and $250,000 in costs, while Cornish and Tai were each ordered to pay a $500,000 penalty and were prohibited from acting as directors or officers of a reporting issuer for one year.

The appellants appealed a summary judgment declaring a franchise agreement validly rescinded under the Arthur Wishart Act and finding that the individual appellant and a subleasing entity were franchisor's associates.

The Court of Appeal upheld the finding regarding the individual appellant, as he owned 50% of the franchisor's shares and ran its day-to-day business.

However, the court allowed the appeal regarding the subleasing entity, finding no evidence that it exercised significant operational control over the franchisee, and directed that issue to proceed to trial.