David Fenig

The appellants appealed a Small Claims Court decision dismissing their motion to set aside default judgments totaling approximately $115,000.

The appellants argued they were victims of identity theft, were never served with the claims, and that a fraudster had taken out the loans and hired a paralegal to negotiate on their behalf.

The Divisional Court found no palpable and overriding errors in the Deputy Judge's findings that the appellants were properly served and that their fraudster theory defied logic.

The appeal was dismissed.

The plaintiff brought a motion for leave to register a certificate of pending litigation (CPL) against a property owned by the defendants, one of whom was her former common-law spouse.

The plaintiff claimed an equitable interest in the property, alleging significant investments and mortgage payments.

The court dismissed the motion, finding that the plaintiff's statement of claim did not assert a direct interest in the land, nor did the evidence establish a triable issue for such an interest.

The court also determined that damages would be a satisfactory remedy and that a CPL is not intended to secure a claim for damages.

Costs were awarded to the defendants.

The plaintiffs purchased a residential property from the defendants.

After moving in, the plaintiffs discovered the property had previously been used as a marijuana grow-op.

The plaintiffs sued the vendors, their real estate agent, and the brokerage for misrepresentation and negligence.

The vendor defendants brought a motion for partial summary judgment to dismiss the action against them, claiming they had no knowledge of the grow-op.

The court dismissed the motion, finding that there was a genuine issue for trial regarding the vendors' credibility and knowledge, and that granting partial summary judgment would risk inconsistent findings given the intertwined claims against the real estate agent and brokerage.

The appellant appealed a default judgment obtained by the respondents in a real estate dispute.

The respondents, as purchasers, alleged that the appellant, as vendor, made negligent misrepresentations regarding property taxes in MLS listings for two properties.

The motion judge declined to set aside the default judgment.

On appeal, the appellant argued the judgment was irregularly obtained.

The Court of Appeal upheld the default judgment, finding that the statement of claim provided a sufficient basis for the judgment as it included allegations of negligent misrepresentation and a plea that the respondents would not have entered into the transactions but for the misrepresentations.

The appellant, a lawyer who acted for a mortgagee in enforcement proceedings, appealed a Small Claims Court judgment that found him jointly and severally liable for $9,000 in punitive damages and $5,750 in costs.

The Divisional Court allowed the appeal, finding that the Deputy Judge erred in law by awarding punitive damages against the lawyer without finding any primary liability, independent actionable wrong, or duty of care owed to the mortgagor.

The judgment against the lawyer was set aside.

The defendant sought leave to appeal an order setting aside a noting in default and default judgment, which was granted on the condition that he pay half the judgment amount into court.

The defendant argued there was good reason to doubt the correctness of the order.

The Divisional Court dismissed the motion, finding the condition was an exercise of the motion judge's discretion and the issue was not of sufficient importance to the public or the administration of justice to warrant leave to appeal.

The plaintiff's action for $25 million in damages was dismissed in full against all defendants.

This endorsement addresses the defendants' claims for costs.

The court found the plaintiff's principal, Mr. Lagani, engaged in blameworthy conduct, including misleading the court, intimidating witnesses, and making unsubstantiated allegations of fraud, warranting substantial indemnity costs.

The court declined to award costs against Mr. Lagani personally due to lack of jurisdiction and insufficient notice.

The court also rejected the Berczy Group's claim for equitable set-off against funds owed to the plaintiff, stating set-off cannot be used as a "sword" to proactively claim funds.

Substantial indemnity costs were awarded to all defendants.

The defendants brought motions to dismiss the plaintiff's action for delay and for breach of a prior consent order.

The court declined to enforce the consent order's limitation on opposition, finding it would cause a clear injustice to the plaintiff due to counsel's failures.

However, the court found inordinate and inexcusable delay by the plaintiff's counsel over a period of six years, which created a substantial risk that a fair trial would no longer be possible.

The plaintiff failed to rebut the presumption of prejudice arising from the lengthy delay and the age of the underlying transactions (15-20 years old).

Consequently, the action was dismissed for delay.

The appellant sued the respondent for business losses allegedly caused when the respondent damaged a telephone cable, interrupting the appellant's phone service.

The trial judge dismissed the claim, entirely rejecting the evidence of the appellant's owner on credibility grounds.

On appeal, the appellant sought to introduce fresh evidence to explain document discrepancies and argued the trial judge's interventions during testimony rendered the trial unfair.

The Court of Appeal dismissed the appeal, finding that while some of the trial judge's questioning was improper, it did not compromise the overall fairness of the trial, and the fresh evidence would not have altered the trial judge's strong adverse credibility findings.

The defendants brought a motion for partial summary judgment to dismiss claims of breach of contract, fraudulent misrepresentation, unjust enrichment, and fraudulent conveyance.

The court dismissed the motion, finding that the defendants failed to establish there was no genuine issue for trial.

The absence of direct evidence from a key defendant (Weber), whose credibility was central to the claims, prevented a fair determination without a full trial.

The court also noted the risk of inconsistent findings if the fraudulent conveyance claim was dismissed while the related oppression claim proceeded to trial on similar facts.

The appellants agreed to purchase a home from the respondent for $2.9 million, but the transaction failed to close.

The trial judge found that the appellants repudiated the agreement and forfeited their $75,000 deposit, declining to grant relief from forfeiture despite the property later selling for more.

On appeal, the appellants argued the respondent had repudiated the contract by failing to close on the required date.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the contract remained alive until the appellants chose not to proceed, and that retaining the deposit was not unconscionable.

On an application for an initial order under the Companies’ Creditors Arrangement Act, the court considered whether an insolvent group of residential development companies should obtain CCAA protection, including a stay, monitor appointment, DIP financing, and priority charges.

A secured creditor opposed inclusion of one raw-land project and sought instead to realize through a receiver.

The court held that, on the specific facts, the prejudice to that secured creditor was not materially greater in a CCAA claims process than in a receivership, particularly given the undertaking to pay out the first mortgage in the amount ultimately determined by the court.

The initial order was granted, including the stay, monitor appointment, DIP facility, and administrative and directors’ charges.

The plaintiff sought leave to appeal an order granting multiple defendants security for costs in underlying litigation.

The motion relied on Rule 62.02(4)(b) of the Rules of Civil Procedure and argued that the order would deny access to justice because the plaintiff corporation was impecunious.

The court found the plaintiff failed to demonstrate credible impecuniosity, noting financial records did not account for more than $2 million previously received from expropriation compensation and land sales.

The court held there was no good reason to doubt the correctness of the security for costs order and the proposed appeal did not raise issues of general importance.

Leave to appeal was therefore refused.

The appellant sought an interim injunction in the Superior Court of Justice to prevent the Canada Revenue Agency (CRA) from collecting unpaid taxes, interest, and penalties pending a breach of contract claim.

The motion judge struck the claim, finding the Federal Court had exclusive jurisdiction under s. 18(1) of the Federal Courts Act.

The Court of Appeal dismissed the appeal, confirming that s. 18(1) applies to all injunctions, including interim ones, and that the CRA is a federal board, commission, or other tribunal when exercising tax collection powers.

The defendants brought a motion to strike a paragraph of the plaintiff’s statement of claim seeking an interlocutory injunction restraining the Canada Revenue Agency from collecting outstanding tax liabilities.

The underlying action alleged torts including misrepresentation, breach of contract, misfeasance in public office, and intentional interference with economic relations arising from the handling of a taxpayer relief application.

The court held that s. 18 of the Federal Courts Act grants exclusive jurisdiction to the Federal Court to issue injunctions against federal boards, commissions, or tribunals, including the CRA when exercising tax collection powers.

Although superior courts retain jurisdiction over damages claims against the Crown grounded in tort or contract, they cannot grant injunctive relief against such federal entities.

The impugned paragraph seeking injunctive relief was therefore struck without leave to amend.