David Marcovitch

The appellant commercial tenant appealed a trial judgment dismissing its action for breach of lease and granting the respondent landlord's counterclaim for rent arrears and property damage.

The appellant argued the trial judge erred by relying on hearsay for repair estimates, excluding surreptitious recordings, and finding the landlord's refusal to consent to a lease assignment was reasonable.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's evidentiary rulings or factual findings regarding the unsuitability of the premises for the proposed assignee's auto body shop.

This is a costs decision following a trial where the plaintiff, Quality General Contractor’s Inc., was unsuccessful in establishing a contract with the owners and its construction lien was found to have expired.

The court awarded substantial indemnity costs of $54,000 to the owners, Judy Wu and Ivan Zee Hin Chan.

The award was based on the owners' successful outcome, their reasonable offers to settle that were significantly more favourable than the trial result, and the plaintiff's abusive conduct, including fabrication of invoices and diary entries and failure to produce key documents, which complicated the proceedings.

The court also considered the proportionality of costs, noting the importance and complexity of the case to the owners due to the plaintiff's groundless claim of a collateral contract leading to potential double liability.

This costs endorsement follows a judgment dismissing the plaintiffs' claims and largely granting the defendant's counterclaim regarding property ownership and accounting.

The court addressed the plaintiffs' argument that costs should be capped under simplified procedure rules, rejecting it because the action predated the rule change.

The defendant sought substantial indemnity costs based on an offer to settle.

The court, however, awarded partial indemnity costs, finding that substantial indemnity generally requires reprehensible conduct, which was absent in this case.

The court assessed the quantum of costs based on proportionality, reasonableness, and the parties' expectations, making adjustments to the defendant's claimed amount.

This judgment arises from a summary trial converted from a motion brought by the Owners (defendants) seeking to declare the plaintiff's (Quality's) claim for lien expired and to dismiss the action against them.

The court addressed three issues: the applicable Construction Act, the existence and nature of a contract between the Owners and Quality, and Quality's last date of supply.

The court found that the old Construction Act applied.

It concluded that no oral guarantee agreement existed between Quality and the Owners, and even if it did, it was unenforceable under the Statute of Frauds.

Furthermore, the court found that Quality failed to prove its claim for lien was preserved in time, as its last lienable supply of services and materials occurred before the 45-day preservation period.

The judge made strong adverse credibility findings against Quality's witnesses and found the Owners' witness credible.

The plaintiffs, a mother and son, brought an action against the defendant, the mother's separated spouse, regarding the ownership of an investment property.

The plaintiffs claimed the defendant held his registered 33 percent interest in trust for the son, who allegedly contributed to the purchase and renovations.

The defendant relied on a marriage contract that stipulated ownership governed property division and counterclaimed for partition and sale, an accounting of rental income, and the return of personal belongings.

The court dismissed the plaintiffs' trust claims, finding the marriage contract binding and the son's contributions unproven.

The court granted the defendant's counterclaim for partition and sale, an accounting of rental income from 2017 onwards, and the return of his personal belongings.

The applicants sought an urgent ex parte interim injunction to prevent BMO from closing their bank accounts.

The court denied the injunction and the request for urgent scheduling of an interlocutory injunction.

The judge found that the applicants failed to demonstrate a strong prima facie case, as required for a mandatory injunction, or irreparable harm, given they had opened accounts with other financial institutions.

The court also noted that the urgency was self-inflicted due to the applicants' delay in bringing the motion.

The defendant brought a motion to add a proposed defendant-by-counterclaim and to amend its Statement of Defence and Counterclaim.

The responding party opposed the motion, arguing that the claim was statute-barred and that the matter was res judicata due to a previous summary judgment motion.

The court found that discoverability remained a live issue for the limitation period and that the previous judge had not made a final decision on the request to add a party.

Applying the mandatory language of Rule 26.01 and the principles of Rule 5.03, the court granted the motion to amend the pleadings and add the party, finding no non-compensable prejudice.

The plaintiff, Mitchell Worsoff, commenced an action against a condominium corporation and its manager, alleging oppressive conduct regarding renovation requirements during the COVID-19 pandemic.

The plaintiff later discontinued the action.

Both parties moved for costs of the discontinued action.

The court found that the plaintiff did not have an objectively reasonable basis to commence the action, as the defendants' policies were reasonable and applied equally to other unit owners.

However, the court also found that the defendants failed to promptly disclose relevant renovation agreements, which prolonged the litigation.

Consequently, the plaintiff's motion for costs was dismissed, and the defendants were awarded 75% of their partial indemnity costs, fixed at $21,000.00, due to the disclosure failure.

The plaintiff served notices of examination requiring the defendants' representatives to attend examinations for discovery in person.

The defendants objected and requested that the examinations proceed by video conference.

The court held a case conference under Rule 1.08(8) to determine the method of attendance.

Applying the factors in Rule 1.08(6), the court ordered the examinations to proceed virtually, emphasizing that virtual proceedings enhance access to justice by reducing costs and increasing efficiency, and that routine discoveries do not require in-person attendance.

The moving defendants brought a motion to strike various claims from the plaintiffs' Statement of Claim, including claims for statutory rescission, misrepresentation, common law rescission, and all claims against the individual defendant director personally.

The court struck the claim for statutory rescission without leave to amend as it was brought beyond the two-year limitation period under the Arthur Wishart Act.

The court struck the claims against the individual director, finding no separate identity of interest from the corporate franchisor, but granted leave to amend.

The claims for misrepresentation and common law/equitable rescission were also struck with leave to amend due to a lack of necessary particulars.

The applicant purchaser sought a declaration that a mortgage registered on the property by the vendor's brother shortly before closing was void.

The vendor claimed the mortgage formalized a pre-existing equitable mortgage for past loans.

The court found no credible evidence of an equitable mortgage and concluded the mortgage was registered with the intent to defeat, hinder, or delay creditors, including the purchaser.

The court applied the badges of fraud and declared the mortgage void under the Fraudulent Conveyances Act, ordering its discharge.

The plaintiffs, owners of single-family homes, leased their properties to the defendant who fraudulently converted them into illegal rooming houses.

After the defendant failed to comply with a previous court order to restore the properties to single-family dwellings, the plaintiffs brought a motion for contempt and a writ of possession.

The court found the defendant in civil contempt, granted the plaintiffs exclusive possession under its inherent jurisdiction to enforce its orders, and ordered the defendant to pay $36,000 in restitution or face a 120-day jail sentence.

The appellant appealed a Master's order discharging a Certificate of Pending Litigation (CPL) on a property owned by his former common-law partner.

The Master discharged the CPL unconditionally after finding the appellant failed to disclose two agreements stating he had no interest in the property and relied on a fraudulent invoice to obtain the ex parte CPL.

The Superior Court dismissed the appeal, finding no palpable and overriding error or error in principle in the Master's exercise of discretion in equity.

The appeal of the Master's substantial indemnity costs award was also dismissed.

The defendant moved to discharge a Certificate of Pending Litigation (CPL) that the plaintiff had obtained ex parte.

The court found that the plaintiff failed to make full and frank disclosure of material facts, specifically the existence of two agreements relinquishing his interest in the property, and relied on a fraudulent invoice.

The court also considered that damages would be an adequate remedy for the plaintiff and that the defendant would suffer prejudice if the CPL remained.

Concluding that the plaintiff did not come to court with clean hands, the Master ordered the discharge of the CPL.

The appellants, as estate trustees of the Estate of James Kay, appealed a summary judgment dismissing their action against the Hull Defendants (Hull & Hull LLP, Ian M. Hull, and Doreen Lok Yin So).

The appellants had previously agreed to a Minutes of Settlement whereby the Estate would pay the Hull Defendants a specific sum for legal fees, and had obtained court approval of this settlement.

The appellants did not seek to set aside the consent settlement approval order, acknowledging it was favorable to them with no apparent basis for setting aside on grounds of fraud or new evidence.

The Court of Appeal upheld the summary judgment, finding no error in the motion judge's decision or reasoning.

The plaintiffs, as assignees of the Estate of James Kay, sought an assessment under the Solicitors Act of a $320,000 legal account paid to the Hull Defendants for services rendered to Sean Kay, pursuant to a court-approved settlement.

The Hull Defendants moved for summary judgment, arguing that the plaintiffs could not demonstrate 'special circumstances' required for an assessment after the statutory limitation period and payment, and that the action constituted an impermissible collateral attack on a prior court order.

The court granted summary judgment, finding no 'special circumstances' to justify an assessment and that the action was indeed an impermissible collateral attack on the court-approved settlement.

The appellants agreed to purchase the respondents' property but failed to complete the purchase after the market declined and they were unable to sell their own home.

The respondents sued for damages and were awarded summary judgment for $135,841.24 and $8,000 in costs.

The appellants appealed on three grounds: denial of procedural fairness, misinterpretation of the purchase agreement, and improper mitigation of damages.

The Court of Appeal dismissed all three arguments and upheld the lower court judgment, fixing costs at $7,500 inclusive of HST and disbursements.

The defendants moved to amend their statement of defence and for an order requiring the plaintiff to post further security for costs.

The plaintiff, who claimed to be impecunious, had previously been ordered to post a modest amount of security.

The defendants discovered that the plaintiff had entered into an assignment agreement with a paralegal corporation to fund the litigation in exchange for 15% of any recovery.

The court allowed the amendments to the statement of defence.

The court also found that the plaintiff failed to disclose the funding agreement on the initial motion, breaching the duty of candour required when pleading impecuniosity.

Applying the principle of proportionality, the court ordered the plaintiff to post further security for costs in staged amounts.