David A. Taub

The plaintiff, a condominium resident, sought statutory and tort-based injunctive and declaratory relief against the defendant, an underground venue operating in his building.

The plaintiff alleged the venue was operating as an unlicensed nightclub, causing severe noise and vibrations constituting a nuisance.

The court found that the defendant was indeed operating as an "entertainment establishment/nightclub" without the proper license, based on its functional activities (e.g., providing dance facilities, minimal seating, ancillary food sales) despite being licensed as an "eating or drinking establishment." The court granted a declaration to this effect and issued both a statutory injunction requiring the defendant to cease operations in contravention of its licensing status, and an interim/interlocutory injunction based in tort, prohibiting the emission of sound audible beyond the lot limit between 10:00 p.m. and 9:00 a.m.

The Court of Appeal for Ontario heard an appeal concerning a "Lender Fee" in a multimillion-dollar loan agreement.

The motion judge had ruled that the balance of the fee was an unenforceable penalty clause and granted relief against forfeiture, also suggesting it was not earned as the loan was not advanced.

The Court of Appeal reversed this decision, holding that the Lender Fee was consideration for obtaining the loan commitment, not a stipulated remedy for breach, and therefore the doctrines of unenforceable penalty clauses and relief against forfeiture did not apply.

The court further clarified that the fee was not contingent on the loan being advanced based on the contract's terms.

The appeal was allowed, ordering the balance of the fee to be paid to the lender.

Dag Hrvoic appealed a trial judgment that found equal shareholdings between him and Melissa Hrvoic in a co-founded company and ordered him to purchase Melissa's shares.

The appeal challenged the trial judge's findings on the shareholding agreement, company valuation, the application of the "clean hands" doctrine, and the commencement of the limitation period for Melissa's claim.

The Court of Appeal dismissed all grounds of appeal, affirming the trial judge's factual findings and legal conclusions, including the existence of an agreement for equal shareholdings and the proper application of the Limitations Act.

The appellant sought a review of a chambers judge's order that partially lifted an automatic stay pending appeal, arguing the judge erred in finding financial hardship without sufficient evidence.

The Court of Appeal dismissed the appellant's motion for review, finding no error in principle or unreasonable result in the chambers judge's exercise of discretion under Rule 63.01(5).

The court affirmed that the chambers judge correctly applied the factors for lifting a stay, including financial hardship, ability to repay, and appeal merits, and that the appellant's own admission regarding the minimum amount owed supported the decision.

This case involved cross-motions for summary judgment concerning a terminated mortgage commitment letter.

The plaintiffs (developer) sought the return of a lender fee, alleging the defendants (lender) made unreasonable demands and acted in bad faith, leading to the termination.

The defendants sought the outstanding balance of the fee.

The court determined that a $100,000 deposit paid by the developer was a valid liquidated damages clause and could be retained by the lender.

However, the remaining $326,500 of the lender fee was deemed an unenforceable penalty, as the lender provided insufficient evidence of damages incurred for work not performed.

The court granted the plaintiffs' motion for summary judgment for the $326,500 and dismissed the defendants' motion.

This appeal concerned a certified class action against Ford Motor Company regarding allegedly false or misleading fuel consumption estimates on EnerGuide labels and in marketing materials for 2013 and 2014 vehicles.

The class action alleged breaches of the federal Competition Act and provincial consumer protection legislation.

The Court of Appeal upheld the motion judge's dismissal of the class action, finding that Ford complied with mandatory federal guidelines for fuel consumption testing (2-Cycle Test) and that the representations were not false or misleading.

The court also addressed the "credulous and inexperienced consumer" standard, noting its applicability varies by statute, and found no deceptive non-disclosure.

The Court of Appeal for Ontario heard two motions arising from an appeal of a trial decision concerning the division of a business.

The appellant sought to file an extended factum, which was unopposed and granted.

The respondent moved to lift an automatic stay of enforcement for a portion of the trial judgment, arguing financial hardship and that the amount represented the appellant's "best position" even if successful on appeal.

The court granted the motion to lift the stay for $1,874,400, finding demonstrable hardship to the respondent, minimal risk of non-recovery for the appellant given his admitted liability, and that the appeal on factual findings was not strong.

The order included a proportional transfer of shares to the appellant upon payment.

This certified class action concerned allegations of misleading advertising by Ford regarding fuel consumption estimates on EnerGuide labels for 2013 and 2014 model year vehicles, claiming breaches of the federal Competition Act and provincial consumer protection statutes.

Both parties brought cross-motions for summary judgment.

The court dismissed the plaintiff's claims, finding no contravention of the Competition Act due to Ford's compliance with federal guidelines and a lack of evidentiary support for a misleading general impression.

While provincial consumer protection laws allow for non-disclosure claims, the court found no legal obligation for Ford to provide additional disclosures (a "Second Label") beyond the EnerGuide Label and the referenced Fuel Consumption Guide, as there was no evidence that car buyers were deceived.

The defendants' cross-motion for summary judgment, dismissing the class action, was granted.

The appellant appealed a summary judgment decision in which the motion judge found that the respondent vendors breached an Agreement of Purchase and Sale by failing to deliver unencumbered title.

However, the motion judge limited damages to the deposit amount of $25,000 and refused to award damages for loss of bargain, finding that the benefit was illusory.

The Court of Appeal allowed the appeal, holding that there was a real bargain and that the appellant was entitled to damages for the difference between the agreed purchase price and the higher price eventually paid for the property, totalling $187,500.

The respondents' cross-appeal was dismissed.

The Court also addressed the costs of both the motion and the appeal.

The plaintiff sought certification of a class action against Ford Motor Company and related entities, alleging false, misleading, or deceptive representations regarding the fuel consumption of 2013 and 2014 model year vehicles.

The claim, for $1.5 billion, was based on violations of the Competition Act and the Consumer Protection Act, asserting that Ford understated fuel consumption by using an outdated 2-Cycle Test instead of the more accurate 5-Cycle Test.

The court certified the action, finding that the pleadings disclosed viable causes of action, there was an identifiable class, common issues existed, a class proceeding was the preferable procedure, and the representative plaintiff was suitable.

This endorsement addresses the costs of a summary judgment motion where the plaintiff, Birchcliffe Core-Harbour Inc., was partially successful in recovering its $25,000 deposit but failed in its claim for $187,500 in loss of bargain damages.

The defendants' counterclaim was dismissed.

The defendants, Stella and Stainton Pinnock, sought substantial indemnity costs of over $95,000 or partial indemnity of over $82,000, arguing the complexity of novel legal arguments.

The plaintiff argued for no costs or a maximum of $2,475.

The court, applying Rule 57.01 factors and the principle of proportionality, found the defendants' claimed hours disproportionate to their partial success and awarded them $20,000 in fees plus $3,250 in disbursements, plus HST, to be paid by the plaintiff.

The plaintiff, Birchcliffe Core-Harbour Inc., sought summary judgment against the defendants, Stella Pinnock and Stainton Pinnock, for breach of an agreement of purchase and sale, claiming damages for loss of bargain and return of a deposit.

The defendants failed to deliver clear title due to an outstanding mortgage with substantial arrears.

The plaintiff subsequently purchased the property from the mortgagee via a power of sale.

The court found the defendants breached the agreement, entitling the plaintiff to the return of the deposit.

However, the claim for loss of bargain was dismissed, as the defendants had no equity in the property, and the "bargain" was deemed illusory.

The defendants' counterclaim for bad faith was also dismissed.

The appellants appealed from a motion judge's decision that dismissed their motion for summary judgment to dismiss the plaintiff's action and granted the plaintiff's motion for summary judgment for a declaration that three agreements of purchase and sale were valid and enforceable.

The central issue was the interpretation of handwritten amendments to the agreements that used the terms "verdict" and "official verdict" in place of the defined term "OMB Decision." The appellants argued that the use of different terms presumptively indicated different meanings were intended.

The Court of Appeal upheld the motion judge's conclusion that the terms had the same meaning, finding that the parties' clear intention was to condition the agreements on receipt of a final decision from the Ontario Municipal Board regarding a proposed development.

Conterra Restoration Ltd. (Conterra) claimed $109,451.35 from Irving Moishe Kirsch (Kirsch) for additional concrete work and waterproofing performed on his property.

Kirsch argued that these additional works required written change orders under their contract.

The court found that the contract was not a fixed-price agreement and that the additional concrete work fell within the scope of work priced on a per-unit basis, thus not requiring a written change order.

While the waterproofing work was outside the original contract scope, the court found that Kirsch had orally authorized it.

The court also held that Kirsch's oral approvals constituted a waiver by conduct of any strict contractual requirement for written change orders.

Consequently, Kirsch was found liable to Conterra for the claimed amount.

Kirsch's third-party claim against Pancon Engineering Ltd. for contribution and indemnity was dismissed.

The plaintiff brought a motion for summary judgment seeking specific performance of an agreement to lease a commercial property for a car dealership.

The defendant landlord argued the agreement was null and void due to the failure to waive certain conditions, including a solicitor review condition and a due diligence condition, within the stipulated timeframes.

The court found that the defendant, through its conduct and communications, had represented that it would not rely on its strict legal rights regarding the conditions, and the plaintiff had relied on these representations to its detriment.

Applying the doctrine of promissory estoppel, the court held the agreement was binding.

Finding the property to be unique for the plaintiff's intended use, the court granted summary judgment and ordered specific performance.

The moving party law firm sought permission to withdraw as counsel of record for the plaintiffs mid-trial due to non-payment of legal fees and an alleged breakdown of the solicitor-client relationship.

The clients opposed the motion, arguing that withdrawal would cause significant prejudice.

The court dismissed the motion, finding that despite a prior consent agreement, the court retained discretion to refuse withdrawal.

The court held that the clients would suffer serious prejudice as it was not feasible for them to self-represent in complex commercial litigation, they had already paid substantial fees, and the law firm held security on the clients' properties.

Following a Rule 57.07 motion concerning potential personal liability of counsel for costs, the law firm and a lawyer sought recovery of their legal costs incurred in defending the motion.

The responding party had sought to impose more than $100,000 in costs against counsel personally.

The court held that the requested full indemnity costs were excessive and that the responding party’s conduct was not reprehensible.

However, given the seriousness of the allegations and the work required to defend the motion, the court awarded partial indemnity costs.

Costs of the Rule 57.07 motion were fixed at $15,000 payable by the responding party, and no additional costs were awarded between the original litigants for the costs hearing.

The defendant sought approximately $100,000 in costs on a full indemnity basis against the plaintiff and its lawyers following the dismissal of the action against it and the discharge of a certificate of pending litigation registered against property.

The court considered the principles governing costs under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, including the high threshold for awarding elevated costs or personal costs against counsel.

The court held that although the defendant was successful, the plaintiff’s decision to include the defendant in the claim was reasonable given the timing of the mortgage transfers and allegations of misappropriation.

The plaintiff withdrew its claim promptly after receiving evidence establishing the legitimacy of the defendant’s mortgage interest.

Partial indemnity costs of $35,000 were awarded against the plaintiff, and the request for costs against the plaintiff’s lawyers was dismissed.

Following an earlier endorsement on the merits, the court determined the issue of costs between the commercial landlord applicant and tenant respondent.

The applicant sought costs on a substantial indemnity basis pursuant to a lease provision.

The court accepted that the contractual clause justified substantial indemnity costs but reduced the claimed amount because the respondent achieved some limited success on the application and the hours claimed by counsel and a law clerk were considered high.

The court awarded a reduced lump-sum costs amount inclusive of certain disputed disbursements.

Following motions for security for costs brought by two defendants, the court addressed the costs of those motions.

The defendants had obtained security for costs orders but in amounts lower than requested.

The court considered the factors under s. 131 of the Courts of Justice Act and Rules 1.04, 56.01, and 57.01 of the Rules of Civil Procedure.

While the moving parties were largely successful, reductions were warranted due to incomplete success and procedural issues related to timing of a statement of defence.

The court declined to award substantial indemnity costs and instead fixed fair and reasonable partial indemnity costs payable by the plaintiff.