David Rubin

The court granted default judgment in favour of the plaintiff, Izhak Aliasi-Sini, against Samir Arora and Equinox Arora Realty Inc. for breach of contract arising from a failed real estate transaction.

The court found that the defendants, having been noted in default, were deemed to admit the facts pleaded.

The plaintiff was awarded damages based on the difference between the original and resale prices, legal fees, and punitive damages, with a reduction for lower resale commission.

The court also awarded substantial indemnity costs and prejudgment interest, but declined to award prejudgment interest on the full purchase price due to lack of evidence.

The plaintiff brought a motion to amend his statement of claim to reduce damages to $35,000, dismiss a third-party claim, and transfer the action to the Small Claims Court.

The defendants opposed the transfer, arguing prejudice due to COVID-19 delays and costs already incurred in defending the Superior Court action.

The court granted the unopposed amendments and dismissal of the third-party claim.

The court also granted the transfer to Small Claims Court, finding no definitive prejudice from delay, but ordered the plaintiff to pay $500 to each defendant for costs thrown away on steps unnecessary in Small Claims Court.

The plaintiffs, Mi5 Print & Digital Communications Inc. and 2214264 Ontario Inc., sought an interlocutory injunction against their former key employee, Craig Larmer, and other defendants for breach of fiduciary duties, misappropriation of confidential information, and solicitation of clients.

Larmer, a Vice-President, abruptly resigned and diverted Mi5's clients to his wife's reactivated business, LCS Imaging, and other defendants (Pyxalis Inc., Ronald Morgan, Barrie Williams, and Marvin Foy Marketing Incorporated).

The court applied the three-part test for interlocutory injunctions, finding a strong prima facie case against Larmer due to his fiduciary role and clandestine pre-resignation activities.

The Pyxalis defendants were found to have knowingly assisted Larmer.

The court also found irreparable harm due to the difficulty in quantifying loss of goodwill and damaged client relationships, and that the balance of convenience favored granting the injunction to restore fairness.

An interim interlocutory injunction was granted for one year, restraining the defendants from engaging in new activities with the specified clients, subject to existing contracts, and requiring strict accounting.

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 a lengthy oppression remedy trial involving a shareholder dispute in a real estate investment company, the court determined the appropriate costs award and interest payable after judgment.

The plaintiffs sought substantial indemnity costs exceeding $1.3 million, alleging reprehensible litigation conduct by the defendants.

The court rejected the request for elevated costs and held that partial indemnity costs were appropriate, emphasizing proportionality, the plaintiffs’ limited success compared to the amounts claimed, and duplication resulting from multiple counsel.

The court also addressed costs related to several pretrial motions, expert witness fees, and disbursements, reducing certain expert accounts and awarding the defendants $5,000 for a post‑judgment remediation motion.

Prejudgment and postjudgment interest were fixed under the Courts of Justice Act.

The plaintiffs moved to amend post-trial reasons to obtain a formal adjudication of the phrase “the necessary funds” in a shareholders’ agreement, or alternatively to recalculate share value by treating cash calls entirely as equity.

The court held that the requested procedure was inappropriate because the moving parties had appeal rights and the authorities relied on were distinguishable.

The court further observed that the interpretation now advanced had been implicitly rejected, was not grounded in the trial record, was not within the parties’ reasonable contemplation when negotiating the agreement, and was not reflected in the pleadings.

The alternative valuation argument was also rejected because it had been abandoned at trial and was inconsistent with the moving parties’ prior position.

The motion was dismissed with costs.

The plaintiff, a minority shareholder in a closely held real estate joint venture, brought an oppression action against the majority shareholders.

The dispute arose after the plaintiff was forced to resign as a director following allegations of misappropriating a minor corporate opportunity.

Subsequently, the defendants made two cash calls and granted a mortgage that significantly diluted the plaintiff's interest in the corporation.

The court found that the defendants' actions, particularly the granting of a mortgage for an amount greater than the corporation's immediate needs, unfairly disregarded the plaintiff's interests and constituted oppression under s. 248 of the OBCA.

The court ordered the defendants to buy out the plaintiff's shares at a valuation of $858,468.31, awarded the plaintiff a portion of a deferred management fee, and ordered two of the defendants to pay $25,000 in punitive damages for their reprehensible conduct.

The appellants appealed a trial judge's decision declining to enforce a mediated settlement under Rule 49.09 of the Rules of Civil Procedure.

The trial judge had found that the respondent was stressed and emotional during the brief mediation, and that enforcing the settlement would result in a real injustice.

The Court of Appeal dismissed the appeal, holding that the trial judge's factual findings were supported by evidence and her discretionary decision not to enforce the settlement was entitled to deference.

The court noted that the appellants suffered no financial prejudice from the partial implementation of the settlement.

Following a prior decision dismissing the main action as an abuse of process, the court addressed costs claims brought by multiple successful defendants and a third party.

The successful parties sought substantial indemnity costs, arguing the proceeding was abusive and barred by issue estoppel and contractual arrangements.

The court acknowledged that the action had been dismissed as an abuse of process but noted that the relevant issue estoppels had evolved over time through related litigation and appeals.

Exercising its discretion, the court declined to award substantial indemnity costs and instead ordered partial indemnity costs consistent with the ordinary principles in Rule 57.01 of the Rules of Civil Procedure.

The court fixed all-inclusive costs awards to the successful parties and declined to alter the normal rule regarding cross‑examination costs on affidavits.

Following a motion to strike portions of a statement of defence under Rule 25.11 of the Rules of Civil Procedure, the court determined the appropriate costs award.

The moving party had been largely successful, obtaining an order striking three of four impugned paragraphs.

Although the moving party sought partial indemnity costs exceeding $7,000, the court held the requested amount was disproportionate given the limited complexity and narrow scope of the motion.

Applying the principles under s.131 of the Courts of Justice Act and Rule 57, the court fixed costs at a reduced amount to reflect both proportionality and the moving party’s partial success.

The plaintiff brought a motion under Rule 25.11 of the Rules of Civil Procedure seeking to strike several paragraphs from a defendant’s statement of defence.

The impugned pleadings alleged that the action was malicious and sought elevated or non‑party costs against the plaintiff’s officers and directors.

The court held that allegations regarding a plaintiff’s motive for commencing litigation do not constitute a defence and that pleadings directed solely to potential costs consequences are improper.

The court struck the impugned paragraphs that related to improper motive and potential non‑party costs, while permitting a paragraph requesting dismissal of the action with full indemnity costs to remain as a general costs request.

Leave to amend was refused because the defects related to improper pleading rather than drafting deficiencies.

The defendants sought leave to appeal to the Divisional Court from an order dismissing their appeal of a Master's decision to set aside a Registrar's dismissal of the action for delay.

The court dismissed the motion for leave, finding no reason to doubt the correctness of the appeal judge's decision, which properly deferred to the Master's findings.

The court also found no issue transcending the interest of the parties or conflicting lines of authority to justify granting leave.

The appellants appealed a trial judgment ordering specific performance and purchase price abatements for two real estate transactions.

The trial judge found the appellant vendors were not ready to close, failed to bargain in good faith, and committed an anticipatory breach, while the respondent purchasers were ready, willing, and able to perform.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings or his interpretation of the abatement clauses.

The appellant landlord appealed a Small Claims Court decision dismissing its claim for unauthorized parking fees, bailiff charges, and legal fees against the respondent tenants.

The trial judge found that the vehicles were not in the possession or control of the tenants and that the landlord acted precipitously in calling a bailiff.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the facts.

The appellant appealed an order granting summary judgment.

The Court of Appeal allowed the appeal, finding that the record raised legitimate issues for trial regarding coercion and legitimacy, specifically concerning the appellant's state of mind when signing a guarantee, the nature of the demand, and the options available to him.

Because the facts relevant to these issues were in dispute, a trial was warranted.

The appeal was allowed with costs awarded to the appellant.

The Court of Appeal issued an endorsement fixing the costs of the appeal.

Costs were awarded to the respondent trustee in bankruptcy on a partial indemnity basis, fixed at $8,500 plus GST, payable by the appellants.

The appellants appealed an order approving the sale of assets by the trustee in bankruptcy.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision to favour the successful tender on a de novo application brought under the Act.