David Winer

The applicants brought an urgent motion in a dependants’ relief proceeding seeking preservation of estate assets and the appointment of an Estate Trustee During Litigation (ETDL).

The deceased’s will left the entire estate to his second spouse and made no provision for his minor child from a prior marriage, who had special needs.

Evidence raised concerns regarding the administration and disclosure of estate assets, including corporate holdings and potential transfers by the named estate trustee.

The court held that a neutral administrator was required to preserve and transparently manage the estate during litigation and to determine the true value of the estate assets.

The court therefore appointed an independent accountant as ETDL without requiring the posting of a bond.

This was a costs endorsement following an appeal.

On consent, the parties agreed that the costs of the appeal should be fixed at $15,000 to the respondent to the appeal, inclusive of fees, disbursements and applicable taxes.

The Court of Appeal ordered costs in that amount.

The applicant subtenant sought a permanent or interlocutory injunction to enforce an exclusivity clause in its commercial sublease, which granted it the exclusive right to operate a karaoke club.

The respondent sublandlord had leased another unit to a co-respondent for a restaurant with karaoke.

Finding material facts in dispute, the court ordered the application to proceed to trial.

Applying the RJR-MacDonald test, the court granted an interlocutory injunction restraining the co-respondent from providing karaoke services pending trial, finding a serious issue to be tried, irreparable harm to the applicant's business, and the balance of convenience favouring the applicant.

The respondent contracted to provide fundraising services to the appellant Indian band for a fee of 15 percent 'including GST'.

The appellant, being tax-exempt under the Indian Act, argued that the phrase meant it was entitled to a discount equivalent to the GST a non-exempt client would pay.

The application judge rejected this interpretation, finding the contract unambiguous.

The Court of Appeal dismissed the appeal, holding that the phrase simply referred to the GST the appellant had to pay, which was zero, and did not imply any discount from the 15 percent fee.

The applicant sought a liquor licence for an additional outdoor patio area.

Local residents objected, citing concerns about noise, public drunkenness, and safety in the adjacent parkette.

The Tribunal found that the objectors did not meet the onus to prove that issuing the licence was not in the public interest, as the evidence of disorderly conduct could not be directly attributed to the applicant's patrons.

The Tribunal approved the application subject to several conditions, including restricted hours, noise controls, and cleanliness requirements, to mitigate the impact on the neighbourhood.

The appellants appealed a motion judge's decision dismissing their motion to stay the respondents' litigation based on an arbitration clause in their shareholder agreements.

The respondents argued the parties never reached an agreement on the contents of a schedule, meaning no arbitration agreement existed.

The Court of Appeal allowed the appeal and stayed the litigation, noting that the respondents had not sought a declaration that the agreements were void ab initio, the agreements contained severability clauses making the arbitration clauses separate contracts, and under the Arbitration Act, an arbitral tribunal may rule on its own jurisdiction.

The litigation was stayed except with respect to three companies that were not parties to any shareholder agreement.

The appellants appealed an order enforcing a settlement with the respondent general contractor regarding substantial renovations to their family home.

The issue was whether the settlement included amounts potentially owed to a millwork sub-contractor with whom the appellants had dealt directly.

The Court of Appeal dismissed the appeal, finding that the settlement did not include work carried out by the sub-contractor as a result of direct dealings with the appellants.

The parties consented to costs fixed at $8,000, all inclusive, payable to the plaintiff's counsel following a prior decision.

The court approved the consent order as reasonable and appropriate.

A pre-hearing conference was held regarding a Notice of Proposal to suspend the liquor licence of Blu Kat Inc., operating as Sottovoce Wine & Pasta Bar.

The Board ordered mutual disclosure of witness lists, evidence summaries, and other documents pursuant to Rule 10 of the AGCO Revised Rules of Practice, to be completed 10 days before the scheduled hearing.

At a pre-hearing tele-conference regarding a Notice of Proposal to review the liquor licence of Wrong Bar Inc., the City of Toronto requested party status.

The request was unopposed by the Registrar and the Licensee.

The Board granted the City of Toronto party status and ordered all parties to complete disclosure by May 25, 2010, ahead of the scheduled hearing.

The Registrar of the Alcohol and Gaming Commission of Ontario issued a Notice of Proposal to suspend the liquor licence of The Loft Bar and Grill.

The parties submitted an Agreed Statement of Facts admitting that police and liquor inspectors found drunken patrons, uncleared signs of service after hours, and unauthorized liquor on the premises, in breach of Ontario Regulation 719/90.

The Board accepted the joint submission and ordered a 14-day suspension of the establishment's liquor licence.

The applicant applied for an additional licensed area for an outdoor patio with a capacity of 48 persons.

Local residents and the condominium corporation objected to the application, citing significant noise issues from the existing indoor premises and concerns that a patio would exacerbate the problem.

The Board heard evidence from acoustic experts for both sides and reviewed the history of noise mitigation efforts by the applicant.

The Board found that the objectors did not meet their onus to demonstrate that issuing the licence would not be in the public interest.

The application was approved subject to strict conditions, including no music on the patio, mandatory security personnel, and restricted hours for the sale and service of alcohol.

The Registrar of the Alcohol and Gaming Commission of Ontario proposed to suspend the respondent's liquor licence for overcrowding on its licensed patio.

The parties submitted an Agreed Statement of Facts admitting that 58 people were present on a patio licensed for 44 people, in violation of section 43 of Ontario Regulation 719/90.

The Board accepted the joint submission and ordered a four-day suspension of the liquor licence.

The appellant appealed the dismissal of its claim for payments under a 2006 contract renewal notice.

On appeal, the appellant argued for the first time that the respondent was estopped from claiming reimbursement due to its failure to respond to the notice within thirty days.

The Court of Appeal dismissed the appeal, holding that the appellant failed to meet the test for raising a new argument on appeal, as the evidentiary record regarding detrimental reliance and fairness was not fully developed at trial.

A pre-hearing teleconference was held regarding a Notice of Proposal to suspend the liquor licence of Hy Lounge.

The Board ordered the Licensee and the Registrar to exchange witness lists, evidence summaries, and further disclosure ten days prior to the scheduled hearing date.

A pre-hearing teleconference was held regarding an application by Andy Poolhall Inc. for additional licensed areas.

The Board ordered an adjournment of the hearing date on consent, granted party status to objectors Clifford Ottaway and the 301 Markham Street Condominium Corporation, deferred Robert Vipond's request for objector status, and set deadlines for witness and evidence disclosure.

The Registrar issued a Notice of Proposal to suspend the liquor licence of the Octapus Lounge for overcrowding.

The parties submitted an Agreed Statement of Facts admitting that there were 102 persons in the premises licensed for 51, in breach of section 43 of O. Reg. 719/90.

The Board accepted the joint submission and ordered a 10-day suspension of the liquor licence.

The Registrar issued a Notice of Proposal to suspend the liquor licence of the corporate licensee.

Following a pre-hearing conference, the Board ordered mutual disclosure between the parties.

The corporate licensee was ordered to disclose its witness list and evidence summaries, and both parties were ordered to complete any further disclosure at least 10 days before the scheduled hearing date.

The Registrar of the Alcohol and Gaming Commission of Ontario issued a Notice of Proposal to suspend the liquor licence of 1577137 Ontario Inc., operating as Downtown Echo Karaoke Box.

The licensee admitted to violations of the Liquor Licence Act regulations, including permitting a drunken patron, failing to retain liquor purchase receipts, and allowing an unauthorized person behind the bar.

The Board accepted an Agreed Statement of Facts and a Joint Submission on Disposition, ordering a 12-day suspension of the liquor licence.

The Registrar of the Alcohol and Gaming Commission of Ontario issued a Notice of Proposal to suspend the liquor licence of Club Paris Inc. The parties proceeded by way of an Agreed Statement of Facts and Joint Submission on Disposition.

The licensee admitted to permitting a drunken patron on the premises and exceeding the licensed capacity limit of 80 persons.

The Board accepted the joint submission and ordered a 10-day suspension of the liquor licence.