Eric Turkienicz

The parties, two brothers, co-owned a property that was ordered to be sold under the Partition Act, with a reference directed to an Associate Justice to determine the distribution of proceeds.

The matter mistakenly proceeded before an Assessment Officer.

The applicant moved to vary the order to allow the Assessment Officer to continue, while the respondent cross-moved for a mini-trial to assert unpleaded equitable claims for his contributions to the property.

The court dismissed both motions, finding that Assessment Officers lack jurisdiction to conduct such references and that the respondent's equitable claims were not properly pleaded.

The matter was directed to proceed before an Associate Justice as originally ordered.

The appellants appealed a motion judge's decision enforcing a settlement agreement between the respondent mortgagee and the appellants regarding mortgage enforcement proceedings.

The appellants argued the settlement agreement was unenforceable because the mortgagee failed to comply with notice requirements under section 244(1) of the Bankruptcy and Insolvency Act before enforcing its mortgage.

The Court of Appeal upheld the motion judge's decision, finding that the appellants had voluntarily relinquished any claim based on section 244 when they entered into the settlement agreement with full knowledge of that claim, having previously raised it in their statement of defence.

The court found no basis for appellate intervention and dismissed the appeal with costs.

The plaintiffs brought a motion for summary judgment against the defendant purchaser in a failed real estate transaction.

The defendant refused to close on the purchase of a property after the title transferred from the original seller (Esther Hunter) to her Powers of Attorney (the plaintiffs' children) prior to the closing date.

The defendant claimed he was justified in refusing to close because he could not obtain title insurance due to concerns about the validity of the Power of Attorney.

The court found that the Agreement of Purchase and Sale was binding despite the title transfer, that the defendant did not provide a valid written objection to title by the required deadline, and that the requisitions raised were not proper title objections.

The court granted summary judgment for the plaintiffs in the amount of $248,318.60 less the $40,000 deposit, totaling $208,318.60, plus pre-judgment interest.

The defendant's counterclaim for return of the deposit was dismissed.

The Court of Appeal for Ontario granted a motion by Alyange Holdings Inc. to strike portions of the responding parties’ Appeal Book and Compendium that were not before the motion judge.

The court held that the appeal record must be limited to evidence before the lower court, rejecting the respondents’ argument that documents from an earlier application could be included.

The court emphasized the principles of finality and fairness, and awarded costs to the moving party.

The moving defendants sought an order requiring the plaintiff to post security for costs under Rule 56.01(1)(b) and (e) of the Rules of Civil Procedure, arguing that the plaintiff had another proceeding for the same relief pending in Ontario and that the action was frivolous and vexatious with insufficient assets to pay costs.

The court found that the plaintiff currently had sufficient assets to satisfy any costs award and dismissed the motion for security for costs.

The court also declined to consider the plaintiff’s cross-motion to strike portions of the affidavits and made no order as to costs.

The plaintiff, Trustar Underwriting Inc., sought the continuation of previous Norwich relief and new Mareva relief against the defendants, alleging two concurrent schemes of fraud.

The schemes involved the misappropriation of insurance premiums for non-existent policies and the redirection of Trustar funds to the defendant Daniel Moses's personal accounts.

The court found a strong prima facie case of fraud, a serious risk of asset dissipation, and irreparable harm, satisfying the test for a Mareva injunction.

The court granted the Mareva injunction, continued and expanded the Norwich relief, and ordered the plaintiff's former accounting firm to produce relevant client files.

The Paragon Defendants, having successfully dismissed the action against them, sought costs for the dismissal motion, cross-motion, and the action.

The self-represented plaintiff opposed the quantum and scale of costs.

The court fixed costs on a substantial indemnity basis, finding the plaintiff's conduct obstructive and unreasonable, despite her self-represented status.

The court also addressed the sufficiency of the Bill of Costs without dockets, finding the description of activities sufficient for assessment.

The defendants (Paragon Security, Sam Reza, and Ronald Crabb) brought a motion to dismiss the plaintiff's action due to her default on a security for costs order and various prior costs orders.

The self-represented plaintiff, Tanya Rebello, filed a cross-motion seeking the judge's recusal, stays of the dismissal motion (based on a certificate of stay and a Supreme Court of Canada reconsideration motion), an order for costs assessment and production of dockets, and variation of the security for costs order.

The court dismissed all aspects of the plaintiff's cross-motion, finding no basis for recusal or stays, and that the plaintiff was not entitled to a costs assessment or production of dockets.

The court granted the defendants' dismissal motion, concluding that the plaintiff had abused the court process through dilatory tactics and failure to comply with court orders, making dismissal a just sanction.

The plaintiff brought a consent motion to transfer the action from Newmarket (Central East Region) to the Toronto Region.

The court reviewed the motion record and applied the factors under Rule 13.1.02 of the Rules of Civil Procedure.

Finding that the interests of justice favoured the transfer so that the matter could be heard on the Commercial List in accordance with a prior judicial direction, the court granted the order.

The appellant sought to appeal interlocutory orders from the Superior Court of Justice, which had dismissed her appeals of two Master's orders concerning security for costs and costs.

The respondents moved to quash the appeal for want of jurisdiction, arguing that the orders were interlocutory and thus appealable to the Divisional Court with leave, not the Court of Appeal.

The appellant also brought a cross-motion seeking leave to appeal two other costs orders.

The Court of Appeal agreed that all orders were interlocutory, quashed the appeal for lack of jurisdiction, and dismissed the appellant's cross-motion.

The defendants brought a motion under section 47 of the Construction Act to discharge a construction lien and dismiss the plaintiff's action.

The plaintiff corporation registered a lien for emergency plumbing and water remediation work, but the evidence showed the defendants contracted with a differently named entity, not the plaintiff.

The court found no triable issue regarding the contract claim.

Furthermore, the court found the action was vexatious and an abuse of process, as the plaintiff's principal engaged in a pattern of deceptive tactics, including misrepresenting himself as capable of practicing law to pressure customers into paying excessive charges.

The claim for lien was discharged and the action dismissed.

The moving defendants, Greenvilla Development Group Inc. and Alan Lam, brought a motion to set aside a default judgment of $504,589.53 plus significant interest, rendered against them in July 2018.

The court considered the five factors for setting aside default judgments under Rule 19.08: promptness, plausible excuse for default, arguable defence on the merits, relative prejudice to parties, and integrity of justice.

Despite delays in prosecuting the motion, the court found the moving defendants had an arguable limitations defence and that the prejudice of upholding the large judgment outweighed the plaintiff's prejudice.

The motion was granted on terms, requiring the moving defendants to pay $15,500 in costs and file a statement of defence within 30 days, with the case to proceed by summary procedure.

The self-represented plaintiff appealed two interlocutory orders of a Master: one requiring her to post security for costs on the basis that her action was frivolous and vexatious, and another ordering her to pay costs of that motion.

The plaintiff engaged in extensive delay tactics, including failing to file her appeal record and seeking multiple adjournments.

The Superior Court dismissed the appeals, finding no error of law, misapprehension of evidence, or reasonable apprehension of bias by the Master.

The court awarded the respondents costs of the appeals on a substantial indemnity basis due to the plaintiff's obstructive conduct.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.

The plaintiff purchased a commercial property from the defendants.

After closing, the plaintiff discovered that the version of a commercial lease provided by the defendants prior to closing was allegedly incorrect, and that the true lease obligated the landlord, rather than the tenant, to repair the roof.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claims for misrepresentation and breach of contract, arguing the plaintiff had already negotiated a price abatement for the roof and did not rely on the lease.

The court dismissed the motion, finding a genuine issue requiring a trial regarding whether the plaintiff lost the opportunity to seek contribution from the tenant based on the incorrect lease provided.

The individual defendants brought a Rule 21 motion to strike the plaintiff's claim against them for fraudulent misrepresentation.

The plaintiff alleged that the defendants, as officers/directors of the vendor corporation, knowingly provided a false lease and statutory declarations regarding the property's condition and tenant obligations during a property sale.

The defendants argued the claim was an attempt to convert a breach of contract into a personal tort.

The court dismissed the motion, finding the claim for fraudulent misrepresentation was sufficiently pleaded, as allegations of fraud, deceit, and dishonesty against corporate officers/directors can proceed, taking their actions outside their corporate role.

Aeon Sodding Corp. sued The Royal Bank of Canada (RBC) for breach of contract after discovering that a "legal professional" it had retained, Steven Mann, was a fraudster who had performed no work despite receiving over $430,000 via an RBC Visa card.

Aeon sought a chargeback from RBC, which was denied due to time limits under Visa rules.

RBC brought a motion for summary judgment to dismiss Aeon's action.

The court granted summary judgment, finding that RBC exercised reasonable care in handling the chargeback request and that Aeon's claim was barred by a verification clause in the Visa Agreement, which required disputes to be raised within 30 days of the statement period.

This decision addresses costs arising from a security for costs motion and an adjournment motion.

The court considered the length of costs submissions, the entitlement of a self-represented litigant to costs, and the factors under Rule 57.01.

The self-represented plaintiff was awarded $2,000 for a successful adjournment motion, but was ordered to pay the defendants $12,037.71 in substantial indemnity costs due to her obstructive conduct throughout the proceeding, which tended to lengthen it.

The Paragon Defendants brought a motion for security for costs against the self-represented plaintiff, Tanya Rebello, under Rule 56.01(1)(e) of the Rules of Civil Procedure.

They argued that her action was frivolous and vexatious and that she had insufficient assets to pay adverse costs.

The court determined that a prior ruling under Rule 2.1.01, which found the action not frivolous or vexatious on its face, did not bind the current motion due to different tests and evidentiary considerations.

The Master found good reason to believe the action was frivolous and vexatious, citing incredible allegations and the plaintiff's conduct, and that she had not demonstrated sufficient assets.

The court ordered the plaintiff to post $23,713.93 in security for costs.

The applicant mortgagee sought a declaration for immediate vacant possession of a property following an alleged default.

The respondents argued that an oral agreement existed waiving mortgage payments until a quarry on the property was operational, raising significant credibility issues.

The court agreed with the respondents that the factual disputes could not be resolved on a paper record and ordered the application converted into an action pursuant to Rule 38.10(1)(b) of the Rules of Civil Procedure.