Daniel Zacks

The appellant sought leave to amend his statement of claim to correct a misnomer by substituting the proper defendant after the expiry of the limitation period.

The motion judge refused the amendment.

The Court of Appeal allowed the appeal, finding that the appellant satisfied the "litigation finger test" for misnomer established in Lloyd v. Clark.

The appellant knew the proper defendant but failed to sue the proper party, and the intended defendant knew it was the intended defendant before the limitation period expired.

The court granted leave to amend and awarded costs.

A realtor appealed a motion judge's decision dismissing a summary judgment motion in a negligence and improvident sale claim.

The key issue was when a two-year contractual limitation period commenced: at the time the Agreement of Purchase and Sale was signed or at closing.

The motion judge found the limitation period began at closing because no damage occurred prior to that time.

The Court of Appeal upheld this decision, holding that while negligent acts may have occurred before the agreement was signed, damage is an essential element of negligence and did not accrue until title transferred at closing.

The appellant appealed a summary judgment dismissing his action for a declaration that his daughter holds assets in a numbered company in trust for him.

The motion judge had characterized the claim as involving a resulting trust and found it statute-barred.

The Court of Appeal allowed the appeal, finding that no limitation period applies to claims against a trustee of a resulting trust for property still in the trustee's possession.

The court also found it appropriate to entertain the appellant's new argument on appeal, as it raised a pure question of law and the record provided a complete evidentiary basis for determination.

York University sought security for costs of an appeal brought by Michael Markicevic, who was found at trial to have defrauded York of over $1.8 million and made fraudulent conveyances of property.

Markicevic appealed on two grounds: the validity of a mutual release signed upon his termination and whether York's claims were statute-barred.

The motion judge ordered security for costs of $75,000 under Rule 61.06(1)(c), finding that while the appeal was not frivolous and vexatious, the unchallenged findings of fraud and asset dissipation constituted compelling "other good reason" to order security despite Markicevic's impecuniosity.

The estate of a deceased tenant brought an action in Superior Court for $500,000 in damages for injuries suffered when the deceased allegedly slipped and fell over a damaged carpet in a residential rental unit.

The motion judge dismissed the action, concluding the Superior Court lacked jurisdiction because the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board and was outside the one-year limitation period prescribed under the Residential Tenancies Act, 2006.

The Court of Appeal allowed the appeal, holding that the Act does not grant the board exclusive jurisdiction over all claims of non-repair.

Where damages exceed the board's monetary jurisdiction, a party may commence proceedings in Superior Court.

Additionally, the one-year limitation period for board applications does not apply to Superior Court actions for non-repair; instead, the two-year limitation period under the Limitations Act, 2002 applies.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action claiming ownership of a family corporation on the basis that it was statute-barred.

The plaintiff argued that the limitation period was suspended under s. 7 of the Limitations Act, 2002 due to his mental incapacity.

The court found that the plaintiff knew or ought to have known the material facts of his claim for a resulting trust by 2002, when he began demanding the corporation back.

As the claim was discovered well before the action was commenced in 2012, the action was statute-barred and dismissed.

The appellant condominium corporation sought to appeal a Master's order denying leave to amend its statement of claim to add a structural engineering firm as a defendant.

The Master found the claim was statute-barred.

The Divisional Court dismissed the appeal, finding that the appellant knew of the water leakage issues and the engineering firm's involvement in the waterproofing design more than two years before seeking to add them to the action.

The court affirmed that certainty of liability is not required to trigger the limitation period, only prima facie grounds to infer responsibility.

This endorsement addresses the costs of an action brought by CIT Financial Ltd. against several defendants, which was dismissed on summary judgment as statute-barred.

The defendants sought costs on a partial indemnity scale, including legal and expert fees.

The court considered the complexity, importance, and reasonable expectations of the parties.

While the court found the defendants were diligent in bringing their summary judgment motion after discoveries, it significantly reduced the claimed expert fees for Zeifmans (to one-third) and Duff & Phelps (to 50%).

This reduction was due to the defendants' experts' unreasonable refusal to cooperate with the plaintiff's expert, leading to unnecessary duplication of work in calculations.

Ultimately, CIT Financial Ltd. was ordered to pay the defendants legal fees totaling $1,706,147.92 and reduced disbursements (including expert fees) totaling $550,182.34.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiff's action for indemnity under a share purchase agreement.

The action was based on alleged breaches of a tax representation and warranty.

The defendants argued the action was statute-barred and that the plaintiff's claim for "loss of use of funds" was limited by contract.

The court granted summary judgment, finding the action was statute-barred because the six-year limitation period began when the plaintiff knew the material facts of the breach and the resulting "claim" (Revenue Canada's reassessment), not upon a demand for indemnity or its refusal.

The court also dismissed the claim for loss of use of funds beyond the contractually agreed prime rate.

On motions under Rule 21, the court considered insurance coverage issues arising from alleged failures of valves installed in condominium HVAC systems that led to flooding claims.

The court held that the duty to defend could be determined on the pleadings and policy wording, notwithstanding unresolved factual disputes relating to waiver, estoppel, misrepresentation, fortuity, and exclusions.

Reading the underlying claims broadly and drawing reasonable inferences, the court found a mere possibility that the defective valves deteriorated progressively from installation through failure, thereby constituting property damage during both insurers' policy periods.

Continental's motion denying any duty to defend was dismissed, and declarations were granted that the claims potentially fell within both policies, with Continental bound to defend.

The appellant appealed a Small Claims Court judgment finding her personally liable for unpaid paralegal invoices.

The Divisional Court upheld the finding of personal liability because the appellant failed to disclose she was contracting on behalf of a corporation.

However, the court allowed the appeal on the basis that the two-year limitation period had expired before the appellant was added as a defendant.

The court held that the limitation period began to run 30 days after the invoice date, not after subsequent demands for payment.

The action against the appellant was dismissed.

The appellants challenged an order dismissing their claim for delay, arguing that the respondent's consent to a June 2012 order requiring the action to be set down for trial by a specified date implicitly represented trial readiness and engaged Rule 48 of the Rules of Civil Procedure.

The court rejected that submission, holding that the respondent had merely agreed to a scheduling requirement directed at the appellants' longstanding delay and made no representation about its own readiness for trial or the fairness of a future trial.

The court also held that consent to the scheduling order did not waive the respondent's right to later rely on prejudice arising from delay predating the order.

The appeal was dismissed with fixed appeal costs to the respondent.

The appellants appealed an order dismissing their statement of claim.

The motion judge struck the pleading because the appellants failed to file affidavit evidence despite multiple opportunities, failed to honour outstanding costs orders, and failed to respond to undertakings.

The Court of Appeal found no basis to interfere with the motion judge's discretionary ruling, noting the appellants had received considerable indulgence from the court.

The applicant developer brought a motion for summary judgment seeking forfeiture of condominium purchase deposits after the respondent purchaser failed to pay a required third deposit and did not complete the transaction.

The respondent argued that forfeiture would be unconscionable and that the applicant suffered no damages.

The court held that the agreement of purchase and sale clearly provided for forfeiture upon default and that proof of damages is not required to enforce a forfeited deposit.

Finding the case document-driven with no genuine issue requiring trial and insufficient evidentiary response from the respondent, the court granted summary judgment and dismissed the counterclaim seeking return of the deposits.