David Holton Cutler

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) that the plaintiffs had obtained ex parte on a property.

The plaintiffs had commenced an action alleging breach of contract and misrepresentation regarding a construction project, and subsequently discovered the defendants transferred the subject property to family members for nominal consideration before listing it for sale.

The court applied the Grefford test for CPLs in fraudulent conveyance actions and found a high probability of success in the main action, a triable issue regarding intent to defeat creditors, and that the balance of convenience favoured maintaining the CPL.

The court also rejected the defendants' argument that the CPL should be discharged for material non-disclosure.

The motion was dismissed.

Costs endorsement following a successful motion by the plaintiff law firm regarding documentary production obligations.

The plaintiff sought substantial indemnity costs of $12,694, while the defendant argued $5,000 was reasonable given the novelty of the privilege issues.

The court found the defendant's pre-litigation conduct reprehensible, including depositing client funds into a personal account, soliciting cash payments, and making disparaging remarks about clients.

The defendant's blanket refusal to produce documents under the guise of solicitor-client privilege, despite the plaintiff's practical attempts to resolve the matter, further warranted elevated costs.

Costs were awarded on a substantial indemnity basis in the full amount of $12,694.

The plaintiff brought a motion for partial summary judgment to recover $2.26 million ($2 million plus HST) owed under a promissory note arising from a share purchase agreement for a construction and development corporation.

The defendants opposed, asserting set-off defences and an $8.5 million counterclaim alleging breach of contract, negligence, and negligent misrepresentation related to cost overages on a construction project.

The court found no genuine issue for trial on the plaintiff's claim, holding the promissory note obligation was discrete and readily separable from the counterclaim.

Partial summary judgment was granted but execution was stayed on condition the judgment amount be paid into court within 45 days pending adjudication of the counterclaim.

The plaintiff law firm brought a motion to compel its former partner, the defendant, to produce documents related to his alleged misappropriation of client funds.

The defendant resisted production, arguing the documents were protected by solicitor-client privilege and that production would require a blanket waiver from hundreds of clients.

The court granted the motion, finding that the parties and their litigation counsel were within the 'circle of privilege' because they previously shared a solicitor-client relationship with the clients.

The court held that production between the parties did not constitute a waiver of privilege and that the requested documents, including the defendant's personal bank records, were highly relevant to the allegations.

The applicant and respondent, two brothers, co-owned a poultry farm business.

Following a breakdown in their relationship, they entered into a consent order detailing a process for the applicant to sell his shares to the respondent, or alternatively, for the corporation's assets to be sold to third parties.

The applicant brought an application to enforce the order, arguing the respondent failed to purchase the shares in time and seeking to proceed with third-party asset sales.

The respondent brought a cross-application seeking to purchase the assets instead of the shares.

The court held that the consent order clearly contemplated a share sale, not an asset sale, and that the respondent failed to exercise his right of first refusal in accordance with the order.

The applicant was authorized to proceed with the third-party asset sales, with the net proceeds to be divided equally.

The respondent in an ongoing shareholder dispute brought a motion requesting that the presiding judge recuse himself on the basis of a reasonable apprehension of bias.

The moving party alleged that the judge's comments during a previous hearing regarding his illiteracy demonstrated prejudgment and ableism.

The court dismissed the recusal motion, finding that the comments were inquiries into the moving party's ability to complete complex commercial transactions and did not meet the objective test for a reasonable apprehension of bias.

The court granted leave to file new evidence regarding an updated agreement of purchase and sale.

The respondent, Tarion Warranty Corporation, brought a motion to add the builder as a party to the appellant's warranty claim appeal.

The builder argued it had a significant interest due to reputational and financial risks, including potential indemnification claims.

The Tribunal denied the motion, finding that the builder's substantive rights would not be impeded by the decision and that adding the builder would unnecessarily complicate the consumer protection proceeding.

The builder's request for costs was also dismissed as it was not a party and the appellant's conduct was not unreasonable, frivolous, vexatious, or in bad faith.

The plaintiffs sought to consolidate a 2023 action with a related 2021 action involving overlapping parties and issues arising from an “Estate Freeze” transaction.

The court found that both actions shared common questions of fact and arose from the same series of transactions, and that consolidation (or hearing the actions together) would avoid multiplicity of proceedings, inconsistent findings, and unnecessary costs.

The court ordered the actions to be heard together or one after the other, subject to the trial judge’s directions, and awarded costs to the plaintiffs.

The plaintiffs sought and were granted leave to issue certificates of pending litigation (CPLs) against two parcels of land transferred by the defendant Jazzar Holdings Inc. to individuals believed to be the principal’s parents for nominal consideration, while a lawsuit was pending.

The court found a high probability of success in the main action, evidence of intent to defeat or delay creditors, and that the balance of convenience favoured the plaintiffs.

The order was made on an ex parte basis due to urgency and risk of dissipation of assets.

This decision resolves a complex family law dispute involving property division, beneficial ownership, child and spousal support, and related trust and equalization claims.

The court found that the Quinn Property was always beneficially owned by the spouses, despite title transfers, and that Omar was the true owner of Cedar Woodwork Inc. The court ordered an unequal division of net family property due to Omar’s reckless depletion of assets and lack of disclosure, and set child and spousal support based on imputed income.

The judgment also addresses the enforceability of an alleged vendor take-back mortgage and the parties’ credibility.

The plaintiff sought leave to amend their Amended Statement of Claim to add particulars of the defendant minor's past antisocial behaviors, arguing relevance to the negligent supervision claim against the minor's parents.

The defendants opposed, arguing the proposed amendments constituted inadmissible similar fact evidence that would unduly complicate the litigation, prolong discovery, and invade the minor's privacy.

The court dismissed the motion, finding that the probative value of the proposed amendments was outweighed by the significant prejudice, complexity, and privacy concerns they would introduce, converting the trial into an inquiry about multiple past events rather than the specific altercation.

The appellant, Luigi Falsetto, appealed a lower court decision that rejected his claim for a purchase money resulting trust over a 50% interest in a property legally titled to his son and former daughter-in-law.

Luigi had provided half the purchase funds and borne half the expenses, intending the property as an investment.

The daughter-in-law was placed on title to avoid a merger of titles under the Planning Act.

The application judge found Luigi intended a gift, but the Court of Appeal found this an error of law and fact.

The Court held that the presumption of resulting trust applied, and the intention to avoid statutory consequences did not negate the actual intention to retain a beneficial interest, especially given the overwhelming evidence of an investment purpose and ongoing financial contributions.

The defendant brought a motion to compel the plaintiff to produce unredacted notes from her treating psychologist.

The plaintiff cross-moved for a limited sealing order and anonymization of the parties' names, arguing the notes contained highly personal information touching on her "biographical core." The court dismissed the defendant's motion, finding the redacted portions irrelevant to the LTD claim and potentially embarrassing/prejudicial.

The court granted the plaintiff's cross-motion, emphasizing the strong public interest in protecting confidential therapist-patient relationships and ensuring individuals with mental health issues can seek help without fear of public disclosure of their deepest personal information.

This appeal concerned the assessment of damages in a failed commercial real estate transaction.

The trial judge awarded the respondent (purchaser) damages for the increase in property value and 90% of all development expenses incurred since 2010.

The Court of Appeal allowed the appeal in part, affirming the award for increased property value and wasted expenses, but erred by including expenses incurred under a prior joint venture agreement that had been released.

The Court held that only expenses incurred after the 2013 Agreement of Purchase and Sale were recoverable.

The calculation of rental costs as development expenses was upheld, but the amount was to be limited to the period of the 2013 APS.

The 10% discount applied by the trial judge was upheld.

Luigi Falsetto sought a declaration that his former daughter-in-law, Paula Falsetto, held her interest in a property (415 Lisgar Street) in trust for him, based on a purchase money resulting trust.

The property was acquired jointly by Paula and Luigi's son, Albert, to avoid merger under the Planning Act.

Luigi paid the down payment and closing costs.

The court dismissed the application, finding that Luigi intended to gift the beneficial ownership to Paula to achieve the Planning Act purpose, thereby rebutting the presumption of a resulting trust.

A preliminary motion by Luigi to admit a late affidavit was also dismissed due to tangential relevance, non-compensable prejudice, and an unsatisfactory explanation for the delay.

The applicant sought a determination of catastrophic impairment based on a mental and behavioural disorder (Criterion 8) following a 2019 motor vehicle accident.

The applicant relied on the opinions of an ABI specialist and an orthopaedic surgeon, neither of whom performed formal catastrophic impairment testing.

The respondent presented surveillance evidence showing the applicant performing activities of daily living unassisted, contradicting her self-reports, and a psychiatric assessment concluding she suffered only moderate impairments.

The Tribunal found the applicant failed to meet her burden of proving a catastrophic impairment, noting inconsistencies in her reporting and the lack of qualified psychological or psychiatric assessments supporting her claim.

The application was dismissed.

The plaintiff brought a motion for summary judgment seeking $883,197 for the redemption of his Class D shares in a family business following an estate freeze, plus $30,000 for a promissory note.

The defendants argued that the plaintiff had already received partial payment through weekly transfers and expense reimbursements based on an oral agreement.

The court dismissed the motion, finding that the dispute centered on unwritten agreements and conflicting evidence that required credibility assessments which could not be resolved on a written record.

The Appellants sought an order to vacate Certificates of Pending Litigation (CPLs) and a writ of seizure and sale registered against their properties, pending the determination of their appeals from a judgment and a CPL order.

They proposed paying the judgment amount into court as security to facilitate the sale of the properties to a third party.

The Respondent opposed, arguing that prior agreements required the full sale proceeds to be paid into court and that the Appellants had failed to disclose the sale agreement earlier.

The court found that the prior agreements contemplated a sale before the final determination of damages and that the Appellants' liability was now fixed by the judgment.

The motion was granted, allowing the CPLs and writ to be vacated upon the Appellants paying $1,750,000 into court as reasonable security, balancing the parties' interests.

The appellants, four corporate entities and their principal, appealed a Superior Court decision that confirmed an assessment officer's assessment of four accounts from their former solicitors, totaling $148,120.95.

The appellants argued the assessment officer exceeded jurisdiction, erred in findings, and showed reasonable apprehension of bias.

The Court of Appeal found no error in the reviewing judge's decision, which had applied a deferential standard of review.

The appeal was dismissed.

This appeal concerned the application of a limitation period to an arbitration agreement.

The parties, cousins and business partners, had a dispute over EOREI expenses that was to be referred to arbitration if negotiations failed.

The appellants (original respondents) argued the arbitration was time-barred, either by a 90-day agreement or the two-year limitation period from the Limitations Act, 2002, starting from the signing of the settlement agreement in September 2016.

The application judge found no 90-day agreement and held the two-year limitation period started when it became clear negotiations were impossible (January 31, 2018), making the arbitration timely.

The Court of Appeal upheld this decision, finding no palpable and overriding error in the application judge's interpretation of the arbitration clause as requiring an attempt at informal resolution before the limitation period began to run for arbitration.