Eric Sherkin

The defendants, Morteza Katebian and Payam Katebian, brought a motion to dismiss the plaintiff's action due to the plaintiff's failure to comply with three prior costs orders, including an order for additional security for costs.

The plaintiff argued the action had considerable merit, they were impecunious, and funds were frozen due to ongoing litigation.

The court found the plaintiff's claim of considerable merit unconvincing and their impecuniosity argument belated.

While acknowledging the severity of dismissal, the court granted the plaintiff a final opportunity until April 1, 2021, to comply with the outstanding costs orders, failing which the defendants could move for dismissal without notice.

The plaintiffs successfully obtained Mareva injunctions and certificates of pending litigation against the defendants in a prior decision.

They sought substantial indemnity costs of $306,793.48 or partial indemnity costs of $208,768.58.

The court found that the defendants' lack of transparency required the plaintiffs to incur significant costs to prove their case.

The court awarded the plaintiffs partial indemnity costs fixed at $175,000, payable forthwith, leaving open the possibility for the trial judge to increase the award to substantial indemnity if the plaintiffs succeed at trial.

The plaintiff commenced an action claiming beneficial ownership of two properties and seeking restitution for mortgage arrears it paid to stay writs of possession.

The defendant mortgagees moved for summary judgment to dismiss the unjust enrichment claim and to strike the claim regarding Interest Act violations.

The court granted the motion, finding no genuine issue for trial on unjust enrichment because the plaintiff suffered no deprivation and a prior court order provided a juristic reason for the payments.

The court also struck the Interest Act claim as an abuse of process because it was already being litigated in another proceeding.

The plaintiffs brought a motion for a Mareva injunction and Certificates of Pending Litigation against the defendants, alleging they perpetrated a Ponzi scheme involving mortgage and securities fraud.

The court found a strong prima facie case of fraud, oppression, and conspiracy, noting that tens of millions of dollars were raised without proper compliance and were unaccounted for.

The court inferred a strong risk of dissipation of assets based on the defendants' conduct, including the listing of a $4 million house and suspicious property transfers.

The motion for the Mareva injunction and CPLs was granted.

Following a successful summary judgment motion for payment of a real estate commission, the moving party sought costs.

The trustee opposed personal liability, arguing costs should be paid from funds held in court.

The investors argued the trustee should pay costs personally due to improper conduct.

The court ordered costs of $10,000 to be paid from the funds in court, as the moving party should not be prejudiced by the dispute between the trustee and investors, but without prejudice to the investors seeking recovery from the trustee in their ongoing litigation.

The vendors appealed a judgment granting specific performance of an Agreement of Purchase and Sale for residential property in Ajax, Ontario.

The vendors had breached the agreement by failing to provide vacant possession on the closing date.

The sole ground of appeal was that the purchaser's delay of 17 months before commencing the application disentitled him from obtaining specific performance.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding errors in the factual findings regarding the property's uniqueness, the inadequacy of damages as a remedy, the reasonableness of the delay in the circumstances, and the absence of hardship to the vendors.

The appellant appealed a judgment of the Superior Court finding that he had repudiated an Agreement of Purchase and Sale for the respondent's business.

The application judge granted rectification of the closing date, found that the appellant had waived the deadline for closing and delivery of landlord's consent, and that the appellant had agreed to pay interim rent.

The application judge also found that the landlord ultimately delivered consent in the form of a one-page handwritten document signed by all parties in September 2014.

The Court of Appeal upheld the application judge's findings, finding no palpable and overriding error in the factual determinations regarding waiver or the interpretation of the landlord's consent document.

The appellant appealed a motion judge's decision finding that the parties had amended and revived an original purchase agreement by waiving conditions and lowering the purchase price.

The Court of Appeal upheld the motion judge's decision, finding no error in the determination that the parties had agreed to the amendment and revival of the agreement, including the backdating of the amendment to July 14, 2015.

The court also found no error in the motion judge's refusal to grant an adjournment sought by the appellant.

The appeal was dismissed with costs fixed at $5,000 inclusive of disbursements.

The appellants appealed a trial judgment that imposed a constructive trust over their properties, declared that Venanzio Pingue was not a shareholder of the respondent company, and removed him as an officer and director due to breach of fiduciary duties.

The trial judge found that Venanzio had misappropriated $592,671.43 from the company and never paid for his shares.

The appellants argued the trial judge erred in interpreting the parties' written agreements and in refusing to admit their expert report.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's interpretation of the agreement or her discretionary decision to exclude the late expert report.

The court also dismissed the motion to admit fresh evidence and the motion for leave to appeal the costs order.

The appellant appealed an order requiring him to attend a mental examination under s. 105(2) of the Courts of Justice Act to determine if he required a litigation guardian.

The Court of Appeal dismissed the appeal, finding no error in principle or overriding and palpable error in the motion judge's exercise of discretion, given previous court orders and expert reports concerning the appellant's conduct.

The defendants, Toromont Industries Ltd. (and Toromont Cat) and Caterpillar Inc., brought motions for summary judgment to dismiss the plaintiff Haliburton Forest & Wildlife Reserve Ltd.'s claims for breach of contract, negligence, and negligent misrepresentation related to the purchase of forestry equipment.

Toromont relied on entire agreement (EA) and limitation of liability (LL) clauses in the sales contracts.

Caterpillar argued it was not a party to the sales contracts and that its limited warranty excluded liability.

The court granted partial summary judgment to Toromont, dismissing most of Haliburton's claims but allowing a claim under the Sale of Goods Act for the purchase price of the equipment to proceed.

The court granted full summary judgment to Caterpillar, dismissing all claims against it, finding no privity of contract for SGA claims, no reasonable reliance on representations, and no duty of care for pure economic loss.

Following dismissal of a trustee’s motion seeking directions to terminate certain condominium purchase agreements, the court addressed costs.

The purchasers sought costs against the trustee or alternatively against mortgagees who supported the trustee’s position.

The court held that although the mortgagees were not formal parties to the motion, they actively participated and had a direct financial interest in the outcome, making it appropriate to hold them responsible for costs.

The court also considered principles governing costs for self-represented litigants and limited recovery to proven disbursements where no foregone remunerative activity was demonstrated.

Costs were awarded to the purchasers and made payable jointly and severally by the mortgagees.

The court-appointed Trustee of an insolvent condominium development brought a motion for advice and directions, seeking permission to terminate pre-sale purchase agreements for buyers who had purchased two parking units, due to a shortage of parking spaces in the building.

The Trustee proposed that these buyers relinquish one parking space for a price reduction, or face termination of their agreements.

The court applied the test of balancing the equitable considerations of all stakeholders.

Finding that the mortgagees had accepted the risk of the parking shortage and that the purchasers would suffer significant financial hardship and loss of equity if their agreements were terminated, the court dismissed the Trustee's motion.

During a Commercial List case conference in a complex multi‑party commercial dispute, the court addressed ongoing discovery and production issues among numerous defendants and third parties.

The court directed timelines for outstanding undertakings and warned that unresolved production disputes would require formal motions before a Master.

The court emphasized counsel’s obligation to cooperate in resolving discovery issues and indicated that failure to do so could result in elevated or full indemnity costs.

Additional guidance was provided regarding potential motions for non‑party examinations and production of partnership financial statements.

The court scheduled a further case conference and noted that the matter would not proceed to trial as early as previously anticipated due to outstanding discovery issues.

During a Commercial List case management conference in a complex multi‑party securities and investment dispute, the court issued procedural directions governing ongoing litigation steps.

The court addressed the potential settlement motion involving certain defendants, confirmed the status of examinations for discovery, and ordered timelines for answering undertakings.

The judge provided structured options for handling refusals motions and warned that costs may be assessed per refusal to discourage unnecessary motions.

Additional directions were given regarding the timing of expert reports, a possible future summary judgment motion, and scheduling of the next case management conference.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The principal respondents were awarded costs of $50,000 on a substantial indemnity basis.

The respondent Cushman & Wakefield Ltd. was awarded costs of $10,000 on a partial indemnity basis.

The appellant condominium corporation appealed a summary judgment dismissing its action against the respondents for allegedly causing it to overpay for surface rights to a parking garage.

The Court of Appeal dismissed the appeal, finding that the action was statute-barred by the two-year limitation period.

The Court held that the appellant had all relevant information by August 1, 2008, when a new purchaser took control of the board, but did not commence the action until November 8, 2010.

The Court also rejected the argument that the 10-year limitation period under the Real Property Limitations Act applied, as the claims were framed in tort, contract, and breach of duty.

The bankrupt appealed a registrar’s order lifting the automatic stay under s. 69 of the Bankruptcy and Insolvency Act to permit a creditor’s civil action to proceed.

The creditor alleged that the debt arose from misappropriation of funds received in a fiduciary capacity, potentially falling within s. 178(1)(d) of the Act such that the debt could survive bankruptcy discharge.

The court held that the registrar properly applied the governing legal principles and correctly concluded that the pleadings disclosed a sufficient basis to lift the stay.

The bankruptcy court’s role was not to determine the merits of the underlying claim but only whether sound reasons existed to allow the action to continue.

The appeal was dismissed with costs.

The appellants purchased a home after making it clear to their real estate agent and home inspector that they were allergic to mould.

After moving in, they experienced allergic reactions to mould.

The trial judge apportioned liability 50% to the inspector, 25% to the agent, and 25% to the appellants for contributory negligence.

On appeal, the Court of Appeal set aside the finding of contributory negligence, as the trial judge had found the appellants lacked the knowledge to appreciate the warning signs in the report.

The Court also set aside the finding of negligence against the agent, as no expert evidence was called regarding the standard of care.

The inspector was held 100% liable.

A creditor brought a motion seeking relief from the statutory stay of proceedings under s. 69 of the Bankruptcy and Insolvency Act to pursue a civil action against an undischarged bankrupt.

The creditor alleged that proceeds from the sale of financed vehicles were required to be held in trust and were misappropriated by the bankrupt while acting in a fiduciary capacity.

The court considered whether the claim could potentially fall within the exception in s. 178(1)(d) of the BIA for debts arising from fraud, misappropriation, or defalcation while acting in a fiduciary capacity.

Finding sufficient parallels with cases involving trust breaches and potential fiduciary misconduct, the court concluded that it was equitable to permit the creditor to proceed with its action despite the bankruptcy stay.

The stay was lifted in relation to the creditor’s civil action, with costs reserved to the trial judge.