David Chernos

The appellant retained the respondent to provide strategic advice for a hostile takeover of a competitor.

The contract included a success fee payable upon the appellant gaining control of the target's management.

After an initial meeting requisition strategy failed, the appellant pursued a consensual purchase transaction without the respondent's involvement.

The trial judge found the contract was goal-focused and awarded the success fee and management fee to the respondent.

On appeal, the Court of Appeal found no extricable errors of law or palpable and overriding errors in the trial judge's interpretation of the contract.

The appeal was dismissed.

The moving parties brought motions to quash appeals from an order authorizing a court-appointed Sales Officer to enter into agreements to separate joint venture interests in real estate projects as part of a corporate wind-up.

The Court of Appeal granted the motions to quash, finding that the order was interlocutory because it was a step in implementing the wind-up and sale process, not a final determination of substantive rights.

Furthermore, the Court held that the order was made pursuant to the Business Corporations Act, meaning any appeal lies to the Divisional Court.

The court fixed costs following trial in favour of Kingsdale Partners LP, the successful party, in the amount of $475,000.00 on a partial indemnity basis.

The decision reviews the factors relevant to the exercise of discretion under section 131 of the Courts of Justice Act and Rule 57.01, including the complexity of the litigation, the conduct of the parties, and the reasonableness of the costs claimed.

The court reduced the amount sought due to concerns about duplication of work and high hourly rates, but found the overall claim proportionate to the litigation and the parties' resources.

The moving parties brought motions for leave to appeal a decision of Conway J. dated April 4, 2025.

The Divisional Court dismissed the motions for leave to appeal and awarded costs of $10,000 to each of the responding parties, Sheldon Libfeld and Jay Libfeld.

The court considered whether Kingsdale Partners LP was entitled to a success fee from Sprott Asset Management LP under an engagement agreement relating to Sprott’s acquisition of Central Fund of Canada Ltd. (CFCL).

The court found that the agreement was not limited to a single strategy and was not terminated prior to Sprott’s acquisition of CFCL’s assets.

The court held that Kingsdale was entitled to the success fee and an additional management fee, rejecting Sprott’s arguments that the fee was not triggered or should be de minimis due to the structure of the transaction.

The moving parties brought motions for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motions for leave to appeal without costs.

The Court of Appeal heard motions to quash an appeal from a trial judge's order approving a sale process for a family business.

The court found the approval order to be interlocutory, serving as a mechanism to implement remedies from the trial judgment, and thus not determining substantive issues.

The correct appeal route for such an order is to the Divisional Court with leave.

Consequently, the motions to quash the appeal were allowed, and the appellants were granted an extension to seek leave to appeal to the Divisional Court.

This costs endorsement followed grouped appeals concerning a wind-up order.

The appeals brought by Mark Libfeld and Corey Libfeld regarding the exclusion of the Shanontown transaction were unsuccessful.

The appeals brought by Jay Libfeld and Sheldon Libfeld concerning a procedural provision in the wind-up order were successful.

Consequently, Jay Libfeld and Sheldon Libfeld were entitled to costs from Mark Libfeld and Corey Libfeld.

The court found the amounts sought by Jay and Sheldon to be excessive due to duplication of materials and disproportionality to the necessary work for the appeals, and ordered a reduced costs schedule.

Four brothers who equally owned a complex real estate development partnership experienced a complete breakdown in their business relationship, leading to a court-ordered wind-up and sale of the business.

Two brothers appealed the trial judge's decision to exclude a specific real estate transaction from the wind-up order, arguing breach of fiduciary duty.

The other two brothers appealed a provision in the judgment requiring them to certify compliance with the wind-up and disclosure orders.

The Court of Appeal dismissed the appeals regarding the excluded transaction, deferring to the trial judge's factual findings that it was conducted outside the partnership.

However, the Court allowed the appeal regarding the certification provision, striking it on the basis that requiring certification of vague obligations in a highly hostile environment would unfairly expose the parties to unwarranted contempt proceedings.

The Tribunal convened a Case Management Conference regarding an appeal of a Zoning By-law Amendment passed by the Town of Bracebridge.

The amendment would permit the conversion of a hunt camp to a seasonal dwelling.

The Tribunal scheduled a two-day video hearing and directed the parties to submit a draft Procedural Order and Issues List.

The applicants, daughters of the respondent, sought a declaration that their father's transfer of his interest in a $4.3 million mortgage to a family trust was a valid gift.

The father argued he lacked donative intent, believing he controlled and was a beneficiary of the trust, and alternatively claimed his daughters unduly influenced him.

The court found the father had donative intent, understanding the estate freeze and trust terms after receiving independent legal and accounting advice.

The court also found no undue influence, as the father acted freely and the daughters were not in a position to dominate his will.

The transfer was upheld as a valid gift.

The applicant brought a motion to appoint replacement estate trustees for the estate of her late husband, following the resignation of the previous trustees amidst a highly fractious family dispute.

The applicant sought the appointment of three family members, while the responding parties sought the appointment of a neutral third party, either Scotiatrust or a senior lawyer.

The court found that the extreme animosity between the two family camps necessitated a neutral institutional trustee to prevent further litigation and ensure the estate's administration.

Scotiatrust was appointed as the Estate Trustee During Litigation.

The four Libfeld brothers, equal owners of The Conservatory Group (a multi-billion dollar real estate development business), experienced a complete and irreparable breakdown of their personal and professional relationships.

The applicants sought various remedies including a restructuring protocol or a restricted wind-up, while the respondents sought a buy-sell process or a structured buyout.

The court found no actionable oppression by any party, attributing the disputes to extreme mutual dysfunction.

Concluding that the brothers could no longer work together and that none of their proposed remedies were workable or fair, the court ordered a court-supervised wind-up and sale of the business under the OBCA and Partnerships Act, permitting all brothers to participate as bidders.

Inzola Group Limited appealed a trial decision dismissing its claims for breach of contract and bias against the City of Brampton regarding a multi-million-dollar construction Request for Proposals (RFP).

Inzola was disqualified for breaching RFP terms, including failing to sign a confidentiality agreement, communicating outside the sole point of contact, and making public disclosures to the media.

The Court of Appeal upheld the trial judge's findings that Inzola's breaches were fundamental and threatened the integrity of the RFP process.

The court also rejected Inzola's argument that the City breached a duty of fair and equal treatment by handling a different alleged breach by another bidder (Dominus) differently, finding Dominus's breach inconsequential compared to Inzola's.

The appeal on liability was dismissed, and leave to appeal costs was denied.

In an ongoing estate dispute between a widow and her children, the applicant widow brought a motion to add two corporate parties, admit a late affidavit regarding her health, substitute written interrogatories for oral cross-examination, and determine the scope of cross-examination.

The court added the corporate parties, finding one to be a necessary party.

The court admitted the late affidavit but excluded the attached medical reports as inadmissible hearsay.

The court declined to dispense with oral cross-examination, finding insufficient evidence of serious harm, but ordered specific accommodations for the 93-year-old applicant.

Finally, the court limited the scope of cross-examination to the three issues previously deemed urgent to conserve judicial resources.

The applicant brought a motion for leave to appeal the unreported decision of Hood J. dated October 31, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondent and $5,000 to the trustee.

Following a 38-day trial where the plaintiff's claim was dismissed, the successful defendant sought costs of over $2.2 million on a partial indemnity basis, but argued for substantial indemnity costs from the date the plaintiff amended its pleadings to allege bias and conspiracy.

The court denied substantial indemnity costs, finding the plaintiff's allegations were not made recklessly or without evidentiary foundation.

The court upheld the defendant's significant e-discovery disbursements as reasonable but ordered the defendant to produce redacted dockets for the plaintiff's review before finalizing the fee award.

The plaintiff, a construction company, sued the defendant municipality after being disqualified from a Request for Proposals (RFP) process for a City Hall expansion.

The plaintiff alleged that the municipality acted in bad faith and with bias when it disqualified the plaintiff for refusing to sign a confidentiality agreement and for communicating directly with City Council.

The Superior Court of Justice dismissed the action, finding that the plaintiff had breached the clear terms of the RFP and that the municipality's decision to disqualify the plaintiff was fair, made in good faith, and based on the advice of an independent fairness advisor.

The court also held that even if the municipality had breached the RFP, the plaintiff would only be entitled to reliance damages, not expectation damages for lost profits.

The appellant appealed a trial judgment finding him liable for payments under a family agreement.

The respondent estate cross-appealed the dismissal of its claim for return of a $13 million payment characterized as a gift.

The appellant argued that an oral agreement made after the family agreement was signed should be enforceable and would excuse his payment obligations.

The court upheld the trial judge's finding that the oral agreement preceded the family agreement and was therefore superseded by its integration clause.

The court also upheld the finding that the $13 million was a valid gift with no resulting trust.

Both the appeal and cross-appeal were dismissed with no costs awarded.

The appellant appealed a decision finding his conduct in connection with a family business was oppressive and removing him as a director, officer, and trustee.

The appellant had emptied the company's bank account, attempted to exclude his daughters from the account, and used corporate funds for personal purposes.

The Divisional Court dismissed the appeal, finding no error in the application judge's conclusion that the appellant breached his fiduciary duties.

The court held that the remedy of removing him from his roles was appropriate and consistent with the parties' reasonable expectations, given his conduct and the divisive family relationship.