Eli Karp

The appellant appealed the dismissal of his motion to set aside a 2013 consent dismissal and settlement agreement, as well as the dismissal of a new 2023 action claiming the same relief.

The motion judge found the appellant's motion and the new action were transparent attempts to relitigate issues that had been settled over a decade prior.

The Court of Appeal upheld the motion judge's decision, confirming that the doctrine of abuse of process prevents the relitigation of settled issues and that the interests of finality prevail absent contractual problems like fraud or duress.

The appeal was dismissed with costs.

Three law firms brought competing carriage motions to represent a class of shareholders of Canopy Growth Corporation in a securities misrepresentation class action.

The court evaluated the competing claims under s. 13.1(4) of the Class Proceedings Act, 1992.

The court granted carriage to the Dziedziejko action, finding that its longer class period, which included thousands of additional shareholders based on prior financial misrepresentations, better served the goals of access to justice and behaviour modification without sacrificing efficiency.

The competing Leonard and Twidale actions were stayed.

The plaintiff bank brought a motion for summary judgment against a corporate borrower and its guarantors after the borrower defaulted on a loan and was placed into receivership.

The defendants argued they were induced to sign the guarantees by misrepresentations from their lawyer, who also acted for the bank, regarding the priority of the bank's security interest.

Using enhanced fact-finding powers to hear oral evidence, the court found the defendants' evidence lacked credibility and that no misrepresentations were made.

The court held the guarantees were absolute and unconditional, and granted summary judgment to the plaintiff for the outstanding loan amount.

Following the dismissal of a motion brought by Money Gate Corporation, the successful responding parties sought costs. 2399029 Ontario Inc. and World Corporation Inc. sought substantial indemnity costs of $185,687.19 due to unsubstantiated allegations of fraud, which Money Gate Corporation did not dispute in principle but argued were inflated.

The court reduced the claimed amount due to unnecessary work and fixed costs at $160,000 on a substantial indemnity scale.

Curah Capital Corporation was awarded its requested $12,024 on a partial indemnity scale.

The 78-year-old plaintiff, who suffers from Alzheimer's disease, sought an interlocutory injunction to prevent the defendant private lenders from enforcing a $500,000 high-interest mortgage registered against her home.

The plaintiff alleged the mortgage was unconscionable and procured through fraudulent misrepresentations by door-to-door salespeople.

The court granted the injunction, finding that the plaintiff only needed to show a serious question to be tried, but had in fact established a strong prima facie case of both unconscionability and fraudulent misrepresentation.

The court concluded the plaintiff would suffer irreparable harm if forced from her home, and the balance of convenience favoured protecting her interests pending trial.

In a receivership proceeding, a non-party, Money Gate Corporation (MGC), brought a motion seeking a distribution of $1,159,517.66 from the proceeds of the sale of a property, claiming to be the assignee of a second mortgage.

The motion was opposed by the property owner and the holder of subsequent charges.

The court dismissed the motion, finding that MGC failed to prove it used its own funds or funds raised from private investors to purchase the assignment.

Furthermore, MGC's failure to register the transfer under the Land Titles Act meant it did not have priority over subsequent registered charges.

The plaintiff, an investor in a mining company, brought a motion for leave to commence a secondary market misrepresentation claim under the Securities Act and a motion to certify a class action under the Class Proceedings Act.

The plaintiff alleged that the defendants failed to disclose material facts about the viability of a gold mine in their prospectuses, which were later revealed in a press release, causing a drop in share price.

The court dismissed both motions, finding that the plaintiff failed to provide expert geological evidence to explain the technical mining disclosures and establish that the alleged omissions were known or knowable at the time the prospectuses were issued.

Without such evidence, there was no reasonable possibility of success for the statutory claim and no basis in fact for the class action common issues.

The applicants sought an urgent injunction to prevent the closing of a commercial real estate transaction pursuant to a second mortgagee's power of sale, scheduled for the following day.

The court declined to schedule the urgent motion, finding that the urgency was self-induced as the notice of sale was served months prior.

The court also noted that the alleged irreparable harm was purely monetary and raised concerns that the proceeding should have been brought in the Central East Region where the property is located, rather than Toronto.

The plaintiffs sought leave to issue certificates of pending litigation against three investment properties and an order to preserve the proceeds of sale of a fourth property.

The properties were transferred pursuant to a complex butterfly transaction.

The court found that while there might be a triable issue, the equities did not favour granting the relief.

The plaintiff's evidence was misleading, damages would be an adequate remedy, and the issues were better suited for family law proceedings.

The motion was dismissed.

The respondents moved to dismiss an oppression application commenced in 2009 for delay, lack of corporate authority, and alternatively sought security for costs.

The court found that the applicants were not principally responsible for the delay, as the respondents had brought a motion in 2009 that they never set down for a hearing.

The court dismissed the assigned claims from a corporate applicant that lacked authority to sue, but allowed the personal claims of the individual applicants to proceed.

The motion for security for costs was dismissed.

The applicant, a retail appliance store, sought a declaration that it was permitted to remain open for in-person shopping during the COVID-19 grey lockdown stage in Toronto and Peel.

The applicant argued it qualified as an essential business under O. Reg 82/20, either as a 'hardware store' or as part of the construction supply chain.

The court dismissed the application, finding that the legislature intended the term 'hardware store' to be given its conventional, everyday meaning, which does not include a store exclusively selling home appliances.

The court rejected the applicant's attempt to stretch the plain language of the regulation.

The applicant, a home appliance retailer, sought an interim injunction to allow its showrooms to remain open despite being ordered to close under Covid-19 public health regulations.

The applicant argued it qualified as an essential 'hardware store' and would suffer irreparable financial harm if closed during the busy December retail season.

The court dismissed the request for interim relief, finding that while there was a serious issue to be tried and potential irreparable harm, the balance of convenience favoured the respondents.

The court held that the public interest in enforcing public health measures to prevent the spread of Covid-19 outweighed the applicant's private economic interests at this preliminary stage.

The defendants brought a motion to enforce a costs order made by the Supreme Court of Canada.

The Supreme Court had ordered that the parties bear their own costs in the Superior Court, based on a misdescription of the procedural history as involving two separate motions (one for certification, one for a stay).

The Superior Court interpreted the Supreme Court's ruling to mean that the plaintiff must repay the costs associated with the stay of proceedings argument, but could retain the costs awarded for the certification motion, which was not appealed to the Supreme Court.

The plaintiff was ordered to repay $12,180 to the defendants.

A case conference was held following a Supreme Court of Canada decision that limited the class to personal users of the defendants' cell phone services.

The defendants intended to bring motions to enforce a costs ruling and revisit the certification order.

The plaintiff sought to proceed with examinations for discovery, while the defendants preferred to wait until after their motions were heard.

The court ordered that the discovery process proceed in tandem with the motions, as the issues raised by the defendants were primarily legal and would not significantly impact the scope of discoveries.

The defendant brought a motion to strike the plaintiff's claim for fraudulent misrepresentation as statute barred under the Limitations Act, 2002, and to dismiss the proposed class action.

The plaintiff had commenced a proposed class action for secondary market misrepresentations following the Deepwater Horizon oil spill.

The court found that the plaintiff discovered his claim by 2010, but did not plead fraudulent misrepresentation until 2019.

The court held it was plain and obvious the claim was statute barred and struck it.

As the plaintiff was disqualified from being a representative plaintiff for the remaining truncated statutory claims, the entire action was dismissed.

The plaintiff sought leave under s. 138.8(1) of the Securities Act to bring a statutory cause of action for secondary market misrepresentation against the defendant corporation, and to certify the action as a class proceeding.

The plaintiff alleged that the defendant made material misrepresentations in its financial statements, which were later restated.

The court dismissed the motion for leave, finding that the plaintiff had no reasonable possibility of success because the specific misrepresentations pleaded were not material to a reasonable investor, and the alleged corrective disclosure did not relate to the pleaded misrepresentations.

Consequently, the certification motion was also dismissed.

The plaintiff brought a motion to compel the law firm DJD to disburse $338,627.56 held in trust pursuant to prior court orders.

The funds were the proceeds of property sales related to a fraud and misrepresentation action.

Following a settlement where the defendants relinquished their claim to the funds, DJD refused to release the money, asserting priority for its own legal fees and subsequently issuing notices of garnishment on behalf of new clients (the garnishment creditors) against its former clients.

The court held that the funds were held in trust for the plaintiff pending the litigation's outcome and did not constitute a debt payable to the defendants.

The plaintiff was granted priority over the garnishment creditors, and DJD was ordered to release the funds.

The plaintiffs brought a motion to extend the time for service of their statement of claim and to validate service, after serving the claim approximately six months past the deadline.

The defendants opposed the motion, arguing the delay was tactical and prejudiced their ability to defend the action.

The court applied the test from Rowland v. Wright Medical Technology Canada Ltd., finding that the plaintiffs met their onus to demonstrate no prejudice resulted from the brief delay, as relevant documents were preserved and witnesses remained available.

The motion was granted, service was validated, and the plaintiffs were awarded costs of $10,000.

The plaintiff in a proposed securities class action moved for certification for settlement purposes, approval of a partial settlement with the auditor defendant, dismissal of the action against individual defendants, and approval of class counsel fees.

The action alleged misrepresentations in the corporate defendant's financial statements.

The court approved the $1 million (USD) settlement with the auditor, finding it fair and reasonable, particularly given the statutory liability limits for experts.

The court also approved the dismissal against the individual defendants and class counsel's fee request of 30% of the settlement funds plus disbursements.

The respondent husband brought a motion for summary judgment to dismiss the applicant wife's claims to set aside their 2009 and 2012 separation agreements, arguing there was no genuine issue for trial, the claims were an abuse of process, and the equalization claim was statute-barred.

The court dismissed the summary judgment motion, finding genuine issues for trial regarding unconscionability, duress, and inadequate financial disclosure.

The court also denied the husband's requests to bifurcate the trial and for security for costs, and ordered him to answer various undertakings and refusals from questioning.