David Winer

The applicant sought to enforce paragraph 7 (the "Comeback Provision") of an arbitral award dated June 20, 2024, which permitted any party to bring the matter back before the arbitrator for guidance regarding the sale process of real property.

The respondents opposed enforcement, arguing the provision fell within the exceptions under section 50(7) of the Arbitration Act because it was not a remedy a court would grant.

The court found that the provision was made on consent, was limited to matters involving the property sale process, did not limit counsel rights, and did not require expedited hearings.

The court distinguished the case from Thompson v. Thiessen and enforced the Comeback Provision.

This costs endorsement follows the Court of Appeal for Ontario's decision to allow the respondent’s motion to quash the appeal.

The court reviewed written submissions on costs and ordered the appellants to pay the respondent $8,088.54 in partial indemnity costs.

The defendant, Wilco Contractors Superior Inc., brought a motion to transfer a breach of contract action commenced by Don Anderson Haulage Limited (DAHL) from Newmarket to Thunder Bay.

The court considered the nine factors under Rule 13.01.02(2)(b) of the Rules of Civil Procedure and found that the majority of the factors, including the location of the events, damages, and convenience of witnesses, favoured a transfer to Thunder Bay.

The motion was granted, and the action was ordered transferred.

Costs were awarded to the defendant on a partial indemnity basis, with written submissions on costs to follow.

This decision concerns a dispute arising from a series of real estate investments and construction projects between Darioush Nobahar (a builder) and Kambiz Heshmati (a real estate agent), along with their respective companies and associates.

The court addresses the parties' financial contributions, the breakdown of their business relationship, and the resulting claims and counterclaims for breach of contract and negligence.

The court finds that Nobahar abandoned the Deloraine project, dismisses his claims, and awards damages to the defendants on their counterclaim.

The applicants, Steven Bulut and 1091369 Ontario Inc., sought leave to appeal an arbitral award granting Marko N. Bulut a 50% constructive trust interest in real property.

The court declined to grant leave, finding no error of law in the arbitrator’s application of the law of constructive trust, unjust enrichment, limitation periods, or issue estoppel/abuse of process.

The court also declined to recognize the award under s. 50 of the Arbitration Act at this time, as no application for such relief was before the court and certain matters remained outstanding before the arbitrator.

The applicants sought a declaration of a prescriptive right-of-way over a 100-foot path on the respondents' property and damages for nuisance and interference.

The court first ruled on a preliminary motion to strike two affidavits filed by the applicants, finding them inadmissible under Rule 39.02(2).

On the main application, the court found that the applicants failed to establish a prescriptive easement, primarily because the property owners (both current and previous) did not have knowledge of the path's use and did not acquiesce to it.

Furthermore, the court found that the easement was not reasonably necessary, as the applicants had previously declined an opportunity to purchase land for a legal access road.

The claim for damages for nuisance and interference was also dismissed, as the respondents' property development did not violate bylaws and did not unduly interfere with the applicants' property enjoyment.

This appeal concerned a post-closing dispute over HST liability following the sale of a mixed-use property.

The purchasers' counterclaim, alleging HST liability, was dismissed at trial on the basis that they suffered no loss and arguably benefited from a windfall.

The Court of Appeal upheld the trial judge's finding that the purchasers suffered no loss, which justified the dismissal of the counterclaim.

Consequently, the appeal was dismissed, and it was deemed unnecessary to address other legal arguments regarding the Excise Tax Act or post-closing readjustment.

The plaintiff, a minority shareholder and employee of a closely held construction management company, brought an action for wrongful dismissal and oppression after a contentious meeting where the majority shareholders claimed he resigned.

The court found the plaintiff was terminated without cause, as his emotional outburst did not constitute a clear and unequivocal resignation.

The court also found the majority shareholders engaged in oppressive conduct by unilaterally removing him as a director, withholding his shareholder loan, and failing to value his shares upon termination.

To rectify the oppression, the court valued the plaintiff's shares at the subsequent fiscal year-end, awarding $440,100 for the shares, $100,000 for pay in lieu of notice, and $75,000 in punitive damages for the defendants' high-handed conduct.

The parties entered into an agreement of purchase and sale for a mixed-use property, with the contract specifying that HST was 'included in' the purchase price.

After closing, the Canada Revenue Agency reassessed the transaction, significantly increasing the HST payable.

The buyers cross-claimed for breach of contract, seeking a price adjustment for the reassessed HST amount.

The court found that the vendor had assumed the risk of HST and had a duty to adjust the price.

However, the court awarded no damages because the buyers suffered no actual loss, having received input tax credits that fully offset the reassessed HST.

The appellants appealed a summary judgment granted against them for defaulting on a lease agreement for laboratory equipment.

The respondent had obtained an order to recover equipment and sought damages and delivery of remaining items.

The appellants argued a settlement agreement existed, which the motion judge rejected.

The Court of Appeal upheld the motion judge's findings, dismissing arguments regarding a settlement, credibility issues, and damages assessment, finding no palpable and overriding error.

The appeal was dismissed with costs.

The respondents brought a motion to stay the applicant's court application in favour of arbitration pursuant to s. 7(1) of the Arbitration Act, 1991.

The dispute arose from a royalty agreement concerning mining claims, which contained an arbitration clause.

The applicant argued that the court should determine the arbitrator's jurisdiction based on exceptions to the competence-competence principle.

The court found that the issues raised, including limitation periods, termination rights, and the application of contra proferentem, required more than a superficial review of the evidentiary record and were not pure questions of law.

The motion to stay was granted, and the alternative request for security for costs was dismissed.

The defendant brought a motion for leave to file a late responding affidavit to the plaintiff's summary judgment motion, after the deadline in a peremptory timetable order had passed.

The defendant also sought to cross-examine the plaintiff's affiants, which the plaintiff opposed on the basis that the defendant had not filed an affidavit.

The court granted the motion, finding that the interests of justice favoured allowing the late affidavit to ensure the case was decided on its merits.

The court also held that under Rule 39.02(1), a party is not required to serve an affidavit as a condition precedent to cross-examining an adverse party's affiant.

The plaintiff brought a motion for summary judgment regarding a Lease and General Security Agreement for nutraceutical manufacturing equipment.

The defendants defaulted on payments, leading to the repossession of most of the equipment.

The court found no genuine issue requiring a trial, rejecting the defendants' claim that a subsequent settlement agreement altered the lease terms, as no payments were made under the alleged settlement.

Summary judgment was granted against all defendants for the outstanding balance, less the amount recovered from the sale of the repossessed equipment, and an order was made for the delivery of the remaining unrecovered equipment.

The plaintiff repair shop brought an action to recover amounts paid into court by the defendant vehicle owner under the Repair and Storage Liens Act.

The plaintiff had repaired and stored a Ferrari leased to a third party that later went into receivership.

The court found that the plaintiff had valid non-possessory liens that became charges on the funds paid into court.

The court awarded the plaintiff $30,358.06 for the fair value of the repairs but dismissed the claim for storage charges due to insufficient evidence of fair value.

This costs endorsement follows a successful Rule 21 motion brought by the Gordin Family Members (defendants by counterclaim) to dismiss the counterclaim against them.

The court awarded partial indemnity costs of $15,000 plus HST to the Gordin Family Members.

The court declined to award substantial indemnity costs, finding that while fraud was alleged, the conduct did not rise to the level of reprehensible behavior warranting a higher scale, especially as the allegations had not progressed beyond the pleadings stage.

The court considered the Gordin Family Members' near-total success on the motion, their Rule 49 offer, and concerns regarding potential duplication of counsel efforts in determining a fair and reasonable amount.

The Gordin Family Members, defendants by counterclaim, brought a Rule 21 motion to strike portions of the counterclaim and dismiss it against them.

The counterclaim by Residences of Springhill Inc. (RSH) alleged fraudulent misrepresentation, civil fraud, and breach of contract related to an underpayment of HST on a condominium unit sale.

The court found no reasonable cause of action against the Gordin Family Members, as the pleadings failed to establish causation for the alleged torts and the breach of contract claim was negated by RSH's admission of receiving the full purchase price including HST.

The motion was granted, and the counterclaim was dismissed against the Gordin Family Members.

The applicant condominium corporation sought to set aside an arbitration award that dismissed its claim against the respondent unit owners for allegedly breaching a Section 98 Agreement regarding renovations.

The applicant argued the award was obtained by fraud based on new evidence from former board members.

The court dismissed the application, finding the applicant failed to prove fraud, did not act with due diligence, and the new evidence would not have changed the outcome.

The court also denied leave to appeal, concluding the arbitrator's interpretation of the agreement was a question of mixed fact and law, and any legal errors would not significantly affect the parties' rights.

On appeal from a Divisional Court decision, the Court of Appeal considered whether the Ontario Municipal Board (OMB) had jurisdiction to impose a 25 percent cap on the alternative parkland dedication requirement under section 42 of the Planning Act.

The Town of Richmond Hill had adopted an Official Plan policy allowing for parkland dedication at a rate of one hectare per 300 dwelling units.

Developers challenged this policy, and the OMB imposed a 25 percent cap on the amount of land required to be conveyed.

The Divisional Court set aside the cap, finding the OMB lacked authority to impose it.

The Court of Appeal upheld this decision, holding that the legislature has given municipalities exclusive authority to determine the rate under section 42(3), subject only to the requirement that an Official Plan contain specific policies dealing with parkland provision and the use of the alternative requirement.

The OMB's role is limited to reviewing whether such policies are appropriate and accord with provincial policies, not to set or cap the rate itself.

The defendant published a report criticizing the governance and contracting practices of the Niagara Peninsula Conservation Authority.

The Authority, its former CAO, and a contractor sued the defendant for defamation.

The defendant brought a motion to dismiss the actions under the anti-SLAPP provisions of the Courts of Justice Act (s. 137.1).

The court dismissed the Authority's action, holding that a government entity cannot sue an individual for defamation.

The court dismissed the remaining plaintiffs' actions because they failed to show the defendant had no valid defence, as the expressions were made on occasions of qualified privilege without malice.