David A. Schatzker

The plaintiff sought a Mareva injunction against the defendants arising from the purchase of a business.

The plaintiff alleged the defendants made false representations through altered financial and business records.

The court found a strong prima facie case of fraud and a risk of asset dissipation, noting the defendants' litigation strategy of avoiding cross-examination on assets.

The court granted the Mareva injunction but limited the amount to $300,000 CDN, considering the plaintiff had mitigated its losses by reselling the business.

The applicant client sought payment of funds held in trust following an assessment of a solicitor's account at nil.

The respondent law firm brought a cross-motion seeking to rely on a previous notice of motion or, alternatively, an extension of time to appeal the Superseding Report and Certificate of Assessment.

The court held that the law firm could not rely on its previous motion, which had been fully disposed of.

However, applying the factors for extending the time to appeal, the court granted the law firm an extension on the conditions that it serve its notice of motion, transfer the disputed funds to the applicant's counsel in trust, and pay the costs of the motion.

The court granted Jason Allison's motion for production of financial documents from CMC Consumer Credit Limited, CMC Capital Inc., and Michael Smith.

Allison was found entitled to the documents as a shareholder under a Shareholders’ Agreement, as a trust beneficiary, or as an intended director.

The court rejected the defendants’ arguments regarding clean hands, limitation periods, and the status of Allison as a defaulting or beneficial shareholder.

The court also fixed costs in Allison’s favour.

The applicant, Harry Littler, a director of CMC Credit Ltd., sought an order compelling the respondents to provide access to CMC’s books and records, including loan agreements.

The respondent, Michael Smith, objected on the basis of privacy legislation (PIPEDA) and alleged improper purpose.

The court found that directors have an unconditional statutory right to inspect corporate records under the Ontario Business Corporations Act, and that PIPEDA does not prevent such access.

The application was granted, and costs were fixed in favour of the applicant.

The applicant brought a motion for the production of third-party medical, financial, and legal records in a will challenge, alleging his late mother lacked testamentary capacity and was unduly influenced by the respondent.

While the applicant's own evidence was largely speculative, the court found that the respondent's cross-examination and a video of the will signing ceremony provided an ample objective basis to meet the evidentiary threshold.

The video showed the mother being coached off-screen, and the respondent's evidence regarding the mother's finances was internally inconsistent and defied common sense.

The motion for production was granted.

The plaintiff brought a motion under Rule 45.02 for an order requiring the defendant to pay $180,000 into court from the proceeds of a property sale, pending the final disposition of the action.

The parties had previously entered into a joint venture to invest in real estate, and the plaintiff claimed a one-third interest in the proceeds based on a trust agreement.

The defendant argued the trust agreement was superseded by a subsequent agreement.

The court found that the plaintiff met the three-part test for an order under Rule 45.02, as there was a specific fund, a serious issue to be tried regarding the claim to the fund, and the balance of convenience favoured granting the relief to prevent dissipation of the funds.

The motion was granted.

The appellant, Vdopia Inc., appealed an order requiring it to pay US$373,731.23 to the court-appointed receiver of the respondents.

Vdopia Inc. argued that the motion judge erred by not considering its outstanding counterclaim for equitable set-off.

The Court of Appeal found no error, affirming that the motion judge's finding of indebtedness was well-supported by the record and that the appellant failed to adduce any evidence to support its set-off claim despite ample notice.

The appeal was dismissed, and costs were awarded to the receiver.

This appeal addresses whether a trustee in bankruptcy can initiate an equalization claim under the Family Law Act (FLA).

The Court of Appeal held that while an unexercised equalization entitlement constitutes "property" under the Bankruptcy and Insolvency Act (BIA) and vests in the trustee, the "personal as between the spouses" provision in s. 7(2) of the FLA prevents anyone other than a spouse from initiating such a claim.

The court found no operational conflict between the FLA and BIA, thus dismissing the trustee's appeal to initiate the claim.

The defendant, Amirhossein Barati, brought a motion to strike the statement of claim against him, arguing it disclosed no reasonable cause of action based on the "sealed contract" rule.

The plaintiffs alleged Barati was the undisclosed principal in a failed real estate transaction where the agreement of purchase and sale was signed by the co-defendant, Arash Maleki.

The court examined whether the standard OREA form, containing "IN WITNESS whereof I have hereunto set my hand and seal" and a pre-printed "seal" mark, constituted a contract under seal.

Applying Supreme Court and Court of Appeal jurisprudence, the court found that such pre-printed language alone does not invariably establish a conscious and deliberate act to create a contract under seal.

The motion to strike was dismissed, as was a contingent cross-motion by the co-defendant.

The moving party defendants brought a motion to vacate a Certificate of Pending Litigation (CPL) that had been registered against a commercial property.

The CPL was originally granted ex parte to Olympia Trust Company, but was never registered.

Instead, a new entity, Bald Eagle Inc., which was never formally added as a plaintiff, obtained and registered a CPL.

Relying on a recent related decision confirming the validity of the underlying mortgage sale, and noting the procedural irregularities in obtaining the CPL, the Master granted the motion and ordered the CPL vacated forthwith.

The respondent overpaid the appellants for construction work.

The parties agreed to the overpayment and the appellants issued a $150,000 cheque with a request not to cash it.

Subsequently, a demand promissory note was executed for the same amount with an irrevocable direction to a law firm to pay from proceeds of other properties.

When the appellants failed to pay after demand, the respondent brought an application for payment which was granted.

On appeal, the appellants argued that an oral agreement modified the written promissory note.

The Court of Appeal upheld the application judge's decision, finding no error in the application of the parol evidence rule and confirming that the written agreement prevails.

The plaintiff corporation, 6734111 Canada Inc. c.o.b. as Home Life Builders, brought a motion seeking leave for its director, Rakesh Mohan, a non-lawyer, to personally represent it in a construction lien matter.

The court dismissed the motion, finding that while Mr. Mohan had the authority to bind the corporation, he failed to demonstrate competence to fulfill the duties of a litigant under the Rules of Civil Procedure, citing a history of non-compliance with court orders and inadequate motion materials.

The court also determined that granting leave would be unfair to the defendants given the complexity of the case and the plaintiff's alleged financial difficulties.

The applicant brought a motion under Rule 21.01(1)(b) to strike portions of the statement of claim or dismiss the action against them, arguing it failed to disclose a reasonable cause of action.

The plaintiffs had invested in a syndicated mortgage and lost their investment, alleging breach of contract, negligence, negligent misrepresentation, and civil conspiracy against various defendants.

The court found the pleadings deficient for all claims against the moving party due to a lack of specific facts establishing proximity, duty of care, or particulars as required by Rule 25.06(8).

The claims against the moving party were struck, but leave was granted to the plaintiffs to amend their statement of claim within 30 days.

Costs were awarded to the moving party on a partial indemnity basis.

Blackjet Inc. sought summary judgment against Skyline Investments Inc. et al. for unpaid marketing fees under an Agency Agreement.

The defendants disputed the amount, alleging double-billing and Blackjet's breach of contract for failing to provide monthly reconciliations and appoint an account manager.

The court granted summary judgment, finding some double-billing by Blackjet but dismissing the defendants' breach of contract claim as they had waived their right to enforce it.

Blackjet was awarded a reduced amount for unpaid fees and late payment fees, along with pre- and post-judgment interest.

The applicant tenant operated an adult entertainment club and sought a declaration that a notice of termination from the respondent landlord was invalid.

The tenant argued the lease had been validly extended by oral agreement with the previous landlord, while the new landlord argued the extension violated the Statute of Frauds and was unregistered under the Land Titles Act.

The court found the lease extension was valid due to part performance and binding on the new landlord because it had actual notice of the tenancy.

However, the court held the landlord was not required to maintain the municipal owner's licence for the club.

The court declared the termination notice invalid and granted the tenant relief from forfeiture, providing a reasonable time to obtain its own licence.

The appellant, a non-party third party and sole shareholder, president and director of a plaintiff corporation, appealed a costs award made against him personally by the motion judge.

The motion judge had awarded costs on two grounds: (1) that the plaintiffs' action constituted an abuse of process, and (2) that the undertaking to damages provided on the application for an interlocutory injunction was fraudulent.

The Court of Appeal allowed the appeal and set aside the costs award, finding that there was insufficient evidence of exceptional circumstances (fraud or gross misconduct) required to justify costs against a non-party principal, and that costs should not be awarded merely because the principal directed the corporation's operations.

The defendants sought to vary previous cost orders to include Peter Merrill, a non-party and owner of the plaintiff corporations, on grounds of fraud and abuse of process.

The court found that the plaintiffs' underlying action was frivolous, vexatious, and an abuse of process, and that a fraudulent undertaking regarding financial capacity was given to the court during an interlocutory injunction motion.

The court granted the defendants' motion, amending the cost orders to include Peter Merrill personally, finding that the due diligence requirement for new evidence was dispensed with due to allegations of fraud.

Following a trial where the plaintiff was awarded $41,608.83 for unpaid invoices and the defendant's counterclaim was dismissed, the plaintiff sought costs of $87,103.50.

The defendant argued the amount was disproportionate for a simplified procedure action.

The court considered the plaintiff's successful offers to settle, which presumptively entitled it to substantial indemnity costs, but balanced this against the principle of proportionality under Rule 1.04(1.1) and the objectives of the simplified procedure.

The court fixed costs at $50,000 inclusive of disbursements and HST.

Two condominium corporations disputed responsibility for utility costs associated with shared cooling towers located on the respondent’s property but servicing the applicant’s building.

The applicant sought a stay of a Superior Court action commenced by the respondent and requested that the dispute proceed through mediation and arbitration pursuant to a Shared Facilities Agreement and s.132 of the Condominium Act, 1998.

The court held that the agreement and statute required disputes between condominium corporations concerning shared facilities to proceed through mediation and arbitration.

The respondent’s argument that the matter should remain in court due to an unjust enrichment claim was rejected, as arbitral tribunals may grant equitable remedies under the Arbitration Act, 1991.

The court stayed the Toronto action and directed the parties to follow the contractual and statutory dispute resolution process.