Eli D. Mogil

The Ontario Court of Justice granted an application for a recount of votes in the electoral district of Mississauga–Erin Mills following Ontario’s 44th General Election held on February 27, 2025.

The applicants, including the Chief Electoral Officer and Returning Officer, sought the recount pursuant to sections 67, 69, and 71 of the Election Act due to the narrow margin of 20 votes between the two leading candidates, Sheref Sabawy and Qasir Dar.

The court emphasized the discretionary nature of ordering recounts even when the statutory threshold for a recount is met, balancing finality, reviewability, and public confidence in electoral outcomes.

The recount was ordered to ensure the accuracy and integrity of the democratic process despite no specific evidence of error.

The Ontario Court of Justice dismissed Andrea Grebenc’s application for a judicial recount in the electoral district of Burlington, finding she failed to establish a prima facie case that a recount would change the election outcome.

The court emphasized the strict statutory timelines under section 71(1) of the Elections Act requiring recount applications to be brought and heard within four days of official tabulation.

Despite credible evidence from a scrutineer regarding improperly rejected ballots, the net difference in votes was only one, insufficient to justify a recount.

The decision underscores the importance of judicial discretion in balancing public confidence in election finality with the need for accuracy.

This costs endorsement followed a decision on an appeal and cross-appeal.

Given the divided success of the parties on both the appeal and cross-appeal, the Court of Appeal ordered that each party bear its own costs.

The United Jewish Appeal of Greater Toronto (UJA) brought motions for default judgment against 100181947 Ontario Inc. o/a TLC Worldwide Inc. (TLC) and Daljit Sohal, and to enforce a settlement against Ryan Singh.

UJA also sought orders validating service on Singh and for substituted service on Mohammed Ashfaq and Prestige Worldwide Transportation Network LLC.

The court granted default judgment against TLC and Singh for breach of contract in the amount of $68,260.00 plus interest, validated service on Singh, and ordered substituted service on Ashfaq and Prestige.

However, the court declined to grant default judgment against Sohal, finding that the claim for unjust enrichment was not sufficiently made out as there was no incontrovertible evidence that Sohal personally received the benefit.

This motion for summary judgment concerned a dispute over success fees owed by mdf commerce inc. ("mdf") to Echelon Wealth Partners Inc. ("Echelon"), a financial advisor.

Echelon was engaged by mdf to source credit facilities for strategic initiatives and acquisitions.

After Echelon sourced an initial facility in 2020, mdf pursued a large acquisition in 2021, securing additional credit facilities and temporary bridge financing from the same lender (BNS) without Echelon's direct involvement, but while Echelon's advisory agreement was still in effect.

Echelon invoiced mdf for a success fee on these new facilities, arguing they constituted a "Financing Transaction" or "Related Transaction" under the agreement, and that the fees were protected post-expiry.

The court granted Echelon's motion for summary judgment, finding that the 2021 credit facilities were indeed a "Financing Transaction" and a "related transaction" as defined by the agreement, and that the protected fee clause applied.

The court also determined that the temporary bridge financing, though not drawn upon, qualified as "committed bank financing" for which a success fee was payable. mdf's cross-motion for summary judgment dismissing the claim was dismissed.

This is an appeal by Dr. Dimitrois Giannoulias from an Associate Justice's order that partially struck paragraphs from a Statement of Claim alleging medical negligence, prior incompetence, and breach of fiduciary duty.

The appeal specifically challenged the Associate Justice's decision not to strike certain pleadings related to the appellant's alleged high surgical complication rates, criticism by experts, and knowledge of deficient skills, arguing these were bald allegations lacking material facts.

The court allowed the appeal, finding the Associate Justice erred in law by not applying the correct test for pleading similar fact evidence and breach of fiduciary duty, as these allegations lacked sufficient material facts or supporting evidence.

The Respondents brought a motion seeking the recusal of the presiding judge and a declaration of mistrial, alleging a reasonable apprehension of bias.

The allegations stemmed from the judge's conduct and rulings in three prior decisions related to the ongoing application, specifically claiming predisposition towards the Applicant, disparagement of the Respondents, and insinuation into the appeal process.

The Court dismissed the motion, finding that, when viewed realistically and in full context, the judge's actions did not give rise to a reasonable apprehension of bias.

The decision emphasized that adverse rulings, even if potentially erroneous, do not equate to bias and should be addressed through the appeal process.

Costs were awarded to the Applicant.

The applicant sought to vary a previous judgment regarding contract beneficiaries and liability for knowing receipt.

The court declined to change the finding on beneficiaries (para 19) as it was an intentional commercial interpretation.

The court did remove an erroneous finding of breach of contract against CIBC Mellon, but declined to substitute it with a finding of knowing receipt, as that relief was not sought in the initial application.

The court granted the applicant's request to introduce evidence of damages related to data sharing by all custodial entities of Mellon Financial Corporation at the time of the agreement, despite the previous finding that those entities were entitled to receive the data.

This endorsement addresses a request from the parties to schedule a 20-day judge-alone trial in two non-consecutive, two-week tranches to secure earlier trial dates.

The court, acting as the local administrative judge for civil cases, granted the request.

The decision acknowledged the general preference for continuous trials but found the non-continuous format warranted due to significant delays in the case (partially administrative and pandemic-related) and the consent of all parties.

The court emphasized the need to avoid further deterioration of evidence and provide closure to the plaintiff, who had been involved in litigation for many years.

The appellant, Maxine Donna McLean, appealed the dismissal of her negligence action against Dr. Nikolaj Wolfson.

The action was dismissed by the motion judge due to Dr. McLean's repeated failure to produce medical records (a "recent X-ray" and related diagnoses) as requested and ordered, which were referenced in her Statement of Claim.

The Court of Appeal found that the motion judge properly exercised discretion in dismissing the action, given the ample time provided and lack of reasonable explanation for non-compliance.

The Court also declined to admit fresh evidence on appeal, as it did not correct the deficiencies and was not timely.

The Court of Appeal heard a motion to review a single motion judge's order that dismissed requests to expedite an appeal and waive the requirement to file a formal liability order.

The panel upheld the motion judge's decision not to expedite the appeal, finding no error in principle or misapprehension of evidence.

However, the panel varied the order to relieve the moving parties from the obligation of filing a formal liability order to perfect their appeal, noting that the liability order was a final order.

The motion was otherwise dismissed, and costs were fixed to be awarded to the successful party on the appeal.

The respondent, Sherbourne Residential, sought costs of $143,145.58 following the dismissal of the applicants' application regarding a $2 million parkland holdback.

The respondent sought substantial indemnity costs based on an offer to settle, but the court found the offer was made less than seven days before the hearing, precluding substantial indemnity under Rule 49.03.

Applying the principle of reasonableness and considering the fair expectations of the unsuccessful party, the court fixed costs at $75,000 on a partial indemnity basis.

The applicants sold a development property to the respondent.

The agreement of purchase and sale included a $2 million holdback in escrow to cover potential increases in parkland dedication requirements by the City of Toronto.

The applicants brought an application for a declaration that the conditions for the release of the holdback had been met, arguing that the City's new Official Plan Amendment did not specifically prescribe increased parkland requirements.

The court dismissed the application, finding that the Official Plan Amendment adopted by the City was sufficient to trigger the holdback provisions under the plain meaning of the contract.

Following a 70-day medical malpractice jury trial where the plaintiff was awarded $3.75 million in damages, the court determined the appropriate quantum of costs.

The plaintiff sought over $3.3 million in costs and disbursements, while the defendants argued for a significantly lower amount, citing proportionality and excessive hours.

The court analyzed the Rule 57 factors, noting the complexity of the case, the necessity of extensive preparation by plaintiff's counsel, and the fact that defence costs themselves exceeded $3.2 million.

The court fixed the plaintiff's costs at $2,404,765 for fees and $628,387 for disbursements, totaling $3,033,152.

A commercial tenant, Baketree Inc., brought a motion for a prohibitory injunction to prevent its landlord, 315-345 Flint Road Inc., from evicting it from the leased premises.

Baketree's lease had expired, and the property had been sold to the new landlord, Flint.

Baketree sought a temporary extension to allow it sufficient time to find new premises, renovate, and relocate its extensive bakery operations, arguing that immediate eviction would lead to the collapse of its business and the loss of 100 jobs.

Flint opposed, citing an Estoppel Certificate and "Entire Agreement" clauses, and offered a short extension until February 2020.

The court granted the prohibitory injunction, finding that Baketree met the low threshold for such an injunction, demonstrated irreparable harm, and that the balance of convenience favoured a temporary stay.

The court ordered Baketree to vacate by October 31, 2020, and adjusted the rent payments for the interim period.

During a medical malpractice jury trial, the defendant physicians sought leave under Rule 53.08 to file a supplementary expert report and to elicit testimony from their experts on matters not explicitly stated in their reports.

The court denied leave for the supplementary report, finding it failed to comply with Rule 53.03 by omitting the reasons for its conclusions, and its admission would cause undue prejudice to the plaintiffs.

The court also ruled on several evidentiary objections, narrowly interpreting the 'latency' principle.

The court held that experts cannot use conclusory statements in their reports to ambush opposing parties with new reasons or theories at trial, though exceptions were made where testimony directly responded to new developments during the trial.

Prior to a medical malpractice jury trial, the court ruled on several procedural and evidentiary motions.

The plaintiffs had entered into a Pierringer Agreement with the defendant hospital and nurses, leaving only the physicians as defendants.

The court ruled that both the plaintiffs and the physicians could cross-examine the settling nurses at trial.

The court also determined the sequencing and phrasing of jury questions, ruling that standard of care must be determined before causation, and permitting 'caused or contributed' language due to the presence of multiple tortfeasors.

Finally, the court allowed the plaintiffs to use photographs of the amputations in their opening address but restricted the experts' use of lengthy PowerPoint presentations.

This ruling addresses the admissibility of expert medical evidence from Dr. Harmeet Gill, an ophthalmologist, in a medical malpractice trial.

The plaintiffs sought to have Dr. Gill testify on the standard of care for ophthalmologists, diagnosis and treatment of orbital cellulitis, the general standard of care for physicians dealing with orbital cellulitis (including emergency room and infectious disease specialists), and causation.

The defendants objected to Dr. Gill testifying outside his specialization and on causation.

The court admitted Dr. Gill's evidence regarding the standard of care for ophthalmologists, general physician knowledge (e.g., sepsis identification), and multidisciplinary team communication and record-keeping, finding it relevant and necessary to the plaintiffs' theory of the case.

However, the court excluded Dr. Gill's opinions on causation, as he admitted lacking expertise on the ultimate outcome of septic patients.

Following the dismissal of the defendants' motion for summary judgment, the plaintiff sought substantial indemnity costs under Rule 20.06 or, alternatively, partial indemnity costs.

The court found that the defendants' conduct in bringing the summary judgment motion, though unsuccessful, did not meet the threshold of "unreasonable" or "bad faith" required for substantial indemnity costs under Rule 20.06.

The court emphasized that Rule 20.06 applies in "exceptional circumstances" involving improper conduct, not merely an arguable but unsuccessful motion.

Consequently, substantial indemnity costs were denied.

The plaintiff was awarded partial indemnity costs, fixed at $85,000, inclusive of fees, disbursements, and HST, after considering the complexity and importance of the motion, and the limited benefit of the work product for the remainder of the action.

The defendants in a medical malpractice and wrongful death action brought a motion for summary judgment to dismiss the Family Law Act claims of the deceased's partner, arguing he did not meet the definition of a spouse.

The defendants also moved to remove him as the litigation guardian for the deceased's minor grandchildren.

The court dismissed the summary judgment motion, finding a genuine issue for trial regarding the partner's spousal status based on conflicting evidence.

The court also dismissed the motion to remove the litigation guardian, finding him qualified, indifferent to the outcome, and not adverse in interest to the minors.