David S. Altshuller

The plaintiffs appealed an order of a Master upholding numerous refusals made during Rule 39.03 examinations of non-party witnesses.

The examinations related to interlocutory motions concerning the late disclosure of a tolling agreement between the defendants.

The plaintiffs alleged 14 errors of fact and law, primarily challenging the Master's findings on litigation privilege, common interest privilege, and the scope of permissible questions for Rule 39.03 witnesses.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors of fact or errors of law, and affirming that the documents and communications surrounding the tolling agreement were protected by privilege.

The plaintiff real estate brokerage brought a motion for summary judgment seeking $187,500 in commission from the defendant for an alleged breach of a Buyer Representation Agreement.

The defendant opposed the motion and maintained a counterclaim for damages, alleging the agreement was incomplete when signed and backdated.

The court found significant contradictory evidence regarding the execution and terms of the agreement, concluding there were genuine issues requiring a trial.

The motion for summary judgment was dismissed, as the use of enhanced fact-finding powers would not be in the interests of justice.

Following the dismissal of the plaintiff's motion for an injunction to prevent the termination of its franchise, the defendants sought their costs.

The court reviewed the parties' offers to settle and the defendants' cost outline.

Finding the time spent and rates charged to be reasonable, the court awarded the defendants their partial indemnity costs fixed at $41,670.61.

The plaintiff franchisee sought an interlocutory injunction to prevent the defendant franchisor from acting on a notice terminating the franchise agreement.

The termination followed a dispute over the scope and cost of renovations required for a final five-year renewal.

Applying the RJR McDonald test, the court found a serious issue to be tried but concluded the franchisee failed to establish irreparable harm, as damages would be an adequate remedy and the franchise term was nearing its absolute end.

The balance of convenience also favoured the franchisor, partly because the franchisee failed to provide an undertaking as to damages.

The motion for an interlocutory injunction was dismissed.

The defendants brought a motion for leave to appeal a decision denying their request to vary a Mareva order to permit them access to the proceeds from the sale of their home to pay legal fees.

The court found that the proposed appeal did not involve matters of public importance transcending the immediate interests of the parties, nor were there conflicting decisions on the issue.

The motion for leave to appeal was dismissed.

Following a successful summary judgment rescinding a franchise relationship, the moving parties sought costs on a partial indemnity basis.

The responding parties challenged portions of the claimed hours and argued that some work related to unresolved damages issues.

The court declined to conduct a detailed review of counsel’s accounts but accepted that costs relating to unresolved quantum issues should not yet be awarded.

Applying Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, the court awarded reduced costs while deferring certain fees pending determination of damages on reference.

The moving parties sought partial summary judgment declaring they were entitled to rescind a franchise agreement under the Arthur Wishart Act (Franchise Disclosure), 2000.

The franchisor argued the transaction was exempt from disclosure because the franchise was purchased from an existing franchisee rather than directly from the franchisor.

The court held the franchisor went beyond a passive approval role by meeting with the purchasers and requiring additional documents limiting statutory rights, thereby engaging the disclosure obligations.

The disclosure materials provided were materially deficient, omitting key transaction documents, lease information, litigation findings, and required franchisee information.

The court found the deficiencies amounted to no disclosure, entitling the franchisees to rescind within the two‑year statutory period and seek statutory damages.

Franchisees brought a motion seeking directions regarding a prior reference decision requiring the franchisor defendants to repurchase supplies and equipment following rescission of a franchise agreement.

The defendants argued the plaintiffs were unable to return the equipment due to its deteriorated condition allegedly caused by improper removal and storage.

The court rejected this argument, holding that s. 6(6) of the Arthur Wishart Act (Franchise Disclosure), 2000 mandates repurchase of equipment regardless of condition and imposes no duty on franchisees to mitigate following rescission.

The plaintiffs were entitled to the previously ordered compensation, payable upon making the equipment available for pickup.

No costs were awarded.

The plaintiffs, franchisees of a pizza franchise, brought a motion for partial summary judgment seeking a declaration that they validly rescinded their franchise agreement due to the franchisor's failure to provide a proper disclosure document under the Arthur Wishart Act.

The court found numerous material deficiencies in the purported disclosure document, including inadequate financial statements, missing certificates, and failure to provide the document as a single bound document.

The court granted the motion, declaring the agreement validly rescinded and finding the individual defendants and a related corporation to be franchisor's associates jointly and severally liable.

The issue of damages was referred to a Master.

Following a declaration that the plaintiffs validly rescinded their franchise agreement, a reference hearing was held to determine compensation under s. 6(6) of the Arthur Wishart Act.

The court awarded compensation for refunded money, inventory, and equipment, but denied compensation for operating losses because the plaintiffs failed to properly record cash transactions and could not substantiate their claimed expenses.

Total compensation of $290,830.72 was ordered.