David A. Taub

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.

Following a successful trial where the plaintiff obtained judgment for the full amount claimed, the plaintiff sought costs on a partial indemnity scale up to the date of its offer to settle, and on a substantial indemnity scale thereafter pursuant to Rule 49.10(1).

The defendant argued the claimed costs were excessive and disproportionate.

The court found the time expended was not excessive given the procedural history, including summary judgment motions, but reduced the senior counsel's hourly rate.

Costs were fixed at $60,291.35 inclusive of fees, disbursements, and HST.

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, a minority shareholder seeking oppression remedies, sought leave to appeal an order that denied production of financial documents necessary for a business valuation until after liability for oppression was determined.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order as it effectively bifurcated the trial without consent, contrary to Rule 6.1.01.

The court also found the issue of bifurcation in oppression cases to be a matter of general importance warranting appellate guidance.

Following the dismissal of the moving parties' motion for a Mareva injunction, the respondents sought their costs.

The court awarded substantial and full indemnity costs to the respondents, totaling over $126,000, finding that the moving parties had made serious, unfounded allegations of fraud and breach of trust, and had engaged in inappropriate conduct by raising unrelated regulatory issues to smear certain respondents.

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 appellants, shareholders in two deadlocked corporations, sought a stay of a winding-up order pending appeal and leave to introduce fresh evidence.

The court dismissed the motion for fresh evidence, finding it irrelevant because the appellants had not requested an adjournment or objected to proceeding without cross-examinations before the application judge.

The court also denied the stay, applying the RJR-MacDonald test, concluding there was no serious issue to be tried, no irreparable harm as funds would be held in trust, and the balance of convenience favoured the respondent who sought to end the corporate deadlock.

The appellant receiver sought to appeal an interlocutory order refusing to cancel a letter of credit posted as security in a civil action.

The receiver argued the Court of Appeal had jurisdiction under s. 193 of the Bankruptcy and Insolvency Act because the motion was styled in both the civil action and the receivership proceedings.

The Court of Appeal quashed the appeal, holding that the substance of the order was a refusal to vary an order in a civil action, not an order in bankruptcy proceedings.

The proper route of appeal was to the Divisional Court with leave.

The plaintiffs were successful at trial, receiving an award of over $2.2 million USD based on findings of active misrepresentations and material non-disclosures by the defendants.

The plaintiffs sought full indemnity costs of $960,432.26, while the defendants argued for substantial indemnity costs of $500,000.

The court found that the defendants' continued deceit during the litigation and trial constituted reprehensible conduct justifying an extraordinary award.

The court awarded the plaintiffs full indemnity costs in the fixed amount of $960,432.26.

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.

The plaintiffs invested $1.25 million USD in the defendants' rehabilitative shoe insert business, Barefoot Science, based on representations that the company owned its intellectual property.

The plaintiffs later discovered the principal defendant secretly owned the patents and had forged documents to protect his reversionary interest.

The court found the defendants liable for deceit, fraudulent misrepresentation, and oppression.

The court awarded the plaintiffs $2.2 million USD, varied the security agreements to capture the intellectual property, and declared the forged agreements void.

Competing summary judgment motions arose from a debt restructuring in which the moving parties released a collateral mortgage and personal guarantees in exchange, in part, for two off-plan Dubai condominium units.

The court held that the amended agreement, read together with the incorporated reservation forms and Dubai law evidence, required that the purchase price for the units be paid into escrow.

The responding parties used closing documents that falsely represented the escrow accounts had been funded when no such funds existed, thereby inducing the release of valuable Canadian security.

Applying the summary judgment framework and the test for fraudulent misrepresentation, the court found no genuine issue requiring trial and granted judgment to the moving parties.

The court also ordered substantial indemnity costs, with further submissions on interest and costs quantum.

The moving party sought an interlocutory injunction restraining the landlord from dealing with commercial property and sought leave to issue a certificate of pending litigation in a dispute over whether an agreement to lease remained binding after conditional periods and alleged waivers.

The court held there was a serious question to be tried on enforceability, including estoppel arising from the landlord's conduct, timing of waiver under a tenant diligence clause, and the landlord's delayed reliance on a financial-condition termination clause.

The court also found a serious question to be tried regarding specific performance because the property was arguably unique for the intended automobile dealership use.

Injunctive relief was continued only until the disposition of an expedited summary judgment motion, subject to $150,000 security and expanded undertakings as to damages.

Leave to issue a certificate of pending litigation was refused as unnecessary in light of the injunction.

The moving parties, construction lien creditors of the Mady Group of Companies, brought a motion seeking to lift a CCAA stay of proceedings, amend their statements of claim, and obtain a Mareva injunction against several individuals and corporations.

The court dismissed the motion, finding that the moving parties failed to make full and fair disclosure, failed to establish a strong prima facie case of fraud or breach of trust, and provided no evidence of a risk of dissipation or removal of assets from the jurisdiction.

The court heard a receiver's motion to vacate a Letter of Credit posted as security in a civil action arising from a commission claim connected to a real estate development.

Applying r. 59.06(2) of the Rules of Civil Procedure, the court held the moving party had not shown changed circumstances sufficient to justify cancelling the security, particularly given ongoing management concerns, accumulating expenses, and subsequent lien registrations.

The court found the plaintiff's underlying claim appeared strong and declined to leave any eventual recovery to the receiver's court-approved distribution process.

The motion was dismissed on the request to cancel the Letter of Credit, but granted as to reimbursement of the carrying costs of the Letter of Credit and discharge of the plaintiff's mortgage.

The appellants achieved substantial success on appeal regarding the respondents' claim for commission earned and the personal liability of Ms. Mascall.

The Court of Appeal awarded costs to the appellants for both the trial and the appeal, with a slight reduction to account for the respondents' subsidiary success on their quantum meruit claim.

Costs were fixed at $20,000 for the appeal and $130,000 for the trial.

The appellants appealed a trial judgment awarding a real estate broker commission on the sale of a property pursuant to a holdover clause in a listing agreement.

The Court of Appeal allowed the appeal, finding that the broker's failure to provide written notice of the introduction of the purchaser, as required by the holdover clause, was a bar to the contractual claim for commission.

However, the Court allowed the broker's cross-appeal in part, awarding $20,000 on the basis of quantum meruit for services provided to the vendor after the listing agreement had expired.

The Court also found that the corporate principal was not personally liable for the compensation.

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.