Esmaeil Mehrabi

Following the dismissal of the plaintiff's action regarding a commercial lease dispute, the defendant sought costs on a partial and substantial indemnity scale based on a Rule 49 offer to settle.

The plaintiff argued for no costs, noting the defendant's conduct was not vindicated at trial as it had sought an improper collateral benefit when withholding consent to a lease transfer.

The court awarded the defendant fixed costs of $15,000 all-inclusive, balancing the defendant's success with its conduct and the plaintiff's failure to serve an offer to settle.

The plaintiff tenant sought damages against the defendant landlord for allegedly unreasonably refusing to consent to an assignment of a commercial lease to a prospective purchaser of the plaintiff's restaurant.

The landlord refused to consider the assignment until the tenant removed an unauthorized patio and dismissed an ongoing lawsuit against the landlord.

The court found that while demanding the dismissal of the lawsuit was an improper collateral purpose, the requirement to remove the unauthorized patio was a reasonable ground to withhold consent.

Because a reasonable basis existed, the refusal was justified, and the plaintiff's action was dismissed.

The defendants brought a motion for leave to amend their Statement of Defence and add a Counterclaim in an action arising from an aborted real estate transaction.

The plaintiff opposed the amendments and brought a cross-motion to strike portions of the pleadings, arguing they were improperly pleaded, irrelevant, or disclosed no reasonable cause of action.

The court struck references to settlement privilege without leave to amend.

The court also struck the defendants' claims of bad faith and mental distress with leave to amend, finding they lacked sufficient clarity, precision, and material facts to allow the plaintiff to know the case it had to meet.

The appellant, Elahe Vahed, appealed a summary judgment decision that found her in breach of an agreement of purchase and sale (APS) for a condominium unit.

The motion judge had ordered the return of deposits to the buyer (Mohmmad Danesh), damages payable by Vahed, and dismissed Vahed's counterclaims against Danesh, her lawyer (Michael Bury), and the realtor (Remax Crossroads Realty Inc.).

Vahed argued that there were genuine issues requiring a trial, particularly regarding the authenticity of a letter extending the closing date and whether her lawyer followed instructions.

She also sought to introduce fresh evidence and appealed the costs award in favour of Re/Max.

The plaintiff requested a case conference to address the defendant's counsel's illness and the lack of a pre-trial conference waiver for a scheduled summary trial.

The court adjourned the summary trial, vacated the original dates, and rescheduled it for the week of May 25, 2021.

The court also directed counsel to schedule a pre-trial conference and exempted the action from mandatory mediation under Rule 75.1.04.

The moving defendants sought to set aside a default judgment granted against them in January 2019 for failing to file a defence to the plaintiffs' action regarding unpaid real estate loans.

The court applied the three-part test from Hanratty v. Woods and found that the motion was not launched forthwith, the default was intentional, and the defendants failed to present a triable defence.

Relying heavily on text messages where the individual defendant personally guaranteed repayment, the court dismissed the motion to set aside the default judgment.

Following the dismissal of the plaintiff's summary judgment motions, the successful defendant sought costs on a partial and substantial indemnity basis, relying on an offer to settle.

The plaintiff argued the defendant should be denied costs due to delay, or that costs should be in the cause, and sought costs thrown away for prior adjournments.

The court awarded the defendant partial indemnity costs, finding the offer to settle did not provide a full compromise.

The court declined to reserve costs to the cause, as the summary judgment motions were decided on their merits.

The court also awarded the plaintiff $2,500 in costs thrown away due to the defendant's prior delays, which were deducted from the defendant's total costs award.

The plaintiff bank brought a motion for summary judgment against a corporate defendant for amounts owing under loan agreements and against an individual defendant on personal guarantees.

The bank argued that a Request to Pay from the Canada Revenue Agency constituted an event of default.

The individual defendant argued the request was sent in error, the tax issue was resolved, the corporation was never in arrears, and the bank failed to provide reasonable notice before enforcing its security.

The court found genuine issues requiring trial regarding whether an event of default occurred and whether reasonable notice was provided, and dismissed the motion for summary judgment.

The plaintiff bank brought a motion for summary judgment against a corporate borrower and an individual guarantor for outstanding loan amounts.

The corporate borrower did not respond, and summary judgment was granted against it.

The individual guarantor opposed the motion regarding a $200,000 guarantee, raising defences of non est factum and fraud, alleging the bank's representative misrepresented the extent of the guarantees required.

The court found a genuine issue requiring trial regarding the enforceability of the $200,000 guarantee.

The court also declined to grant partial summary judgment on two other undisputed guarantees, finding the issues cannot be readily bifurcated and would not advance the action as a whole.

The plaintiffs sought to settle the terms of a formal Judgment following a successful motion to enforce a settlement agreement against the defendants.

The parties disagreed on several terms, including payment dates, the declaration of a fraudulent conveyance, the lifting of a Certificate of Pending Litigation, and the exchange of mutual releases.

The court adjusted the payment dates but awarded pre-judgment interest to prevent prejudice to the plaintiffs.

The court also held that the co-defendant was bound by the declaration regarding the fraudulent conveyance, as the settlement offer was made on behalf of both defendants.

The court declined to order mutual releases, noting they were unnecessary now that the settlement terms had become a judgment.

The plaintiff, Mohmmad Danesh, and the defendants by counterclaim, ReMax Crossroads Realty Inc. and Michael Bury, brought motions for summary judgment in a dispute arising from a failed condominium purchase.

The vendor, Elahe Vahed, argued that a second extension to the closing date was invalid due to fabrication and non-compliance with the Statute of Frauds.

The court found that Vahed breached the agreement of purchase and sale by failing to close on the extended date, rejecting her arguments regarding fabrication and the Statute of Frauds due to solicitor's authority and part performance.

Danesh was awarded damages for out-of-pocket expenses and the return of a deposit.

Vahed's counterclaims against Danesh, ReMax, and Bury for general and punitive damages were dismissed.

The accused, charged with sexual assault and human trafficking offences, sought disclosure of police occurrence reports and statements related to four prior incidents the Crown intended to introduce as similar-fact evidence.

The Crown argued the materials were 'records' under s. 278.1 of the Criminal Code, requiring the accused to bring a production application under s. 278.3.

The court held that because the Crown intended to use the evidence as part of its case, it was constitutionally obligated under Stinchcombe to disclose the materials without requiring a production application.

The appellant appealed both conviction and sentence following a trial before a judge of the Superior Court of Justice sitting without a jury.

The appellant was convicted of sexual interference and sentenced to 10 months imprisonment.

The offence was alleged to have occurred in a hotel room in Ottawa.

On appeal from conviction, the appellant advanced three grounds: misapplication of the rule in Browne v. Dunn and failure to analyze the complainant's motive to fabricate; uneven scrutiny of evidence between the appellant and complainant; and failure to properly apply the W.(D.) principles.

The Court of Appeal dismissed all grounds of appeal from conviction, finding the trial judge's findings of fact were open on the evidence and not contaminated by misapprehensions or uneven scrutiny.

On sentence, the appellant conceded the sentence fell within the appropriate range.

The Court of Appeal dismissed the appeal from sentence but set aside the victim surcharge.

The defendant brought a motion seeking to compel the plaintiff to deliver particulars, comply with a request to inspect documents, deliver a further and better affidavit of documents, re-attend an examination for discovery to answer a refusal regarding damages, and amend its statement of claim.

The court found divided success.

The demand for particulars was dismissed as procedurally improper after discoveries.

The request to inspect documents and the request for a further and better affidavit of documents were partially granted, requiring production of certain trademark and financial documents but not proprietary recipes or broad tax/banking records.

The plaintiff was ordered to re-attend discovery to answer questions on damages, deferred for 60 days.

The request to compel amendment of the statement of claim was dismissed.

No costs were awarded.

The Federal Crown and a court-appointed Receiver applied to vary a forfeiture order that required the destruction of seized electronic devices and documents, as the CRA and the Receiver sought access to them for ongoing investigations into an illegal pyramid scheme.

The court held it lacked jurisdiction to use certiorari to set aside the destruction order made under s. 490.1(1) of the Criminal Code because a statutory right of appeal to the Court of Appeal existed.

However, the court granted the Receiver's application under s. 490.5, declaring its interest unaffected and suspending the destruction order, and allowed the appeal to set aside the destruction order made under s. 490(9).

Following a conviction for sexual assault, the applicant applied to reopen the case prior to sentencing to adduce fresh evidence.

The applicant alleged that the complainant had confessed to a family friend that the allegations were fabricated to secure a monetary settlement.

The court applied the Palmer/Kowall criteria and found the proposed fresh evidence lacked credibility, could have been adduced at trial with due diligence, and would not have affected the verdict.

The application to reopen the case was dismissed.

This is a companion appeal to Unifund Assurance Company v. D.E. and L.E. The appellant insurance company appealed a declaration that it had a duty to defend and indemnify the respondent parents and their minor daughter in an underlying action relating to alleged bullying and harassment.

Applying the reasons from the companion appeal, the Court of Appeal found the application judge erred in interpreting the exclusion clause.

The court also held that the minor daughter was excluded from coverage as the underlying claim was strictly for intentional torts of assault and battery.

The appeal was allowed, and the court declared the insurer had no duty to defend or indemnify.

The respondents in a human rights application concerning alleged discrimination at a trailer park filed a Request for an Order During Proceedings (RFOP).

They sought production of the applicant's medical records, an order requiring his physician to testify, and various procedural directions.

The Tribunal granted the request for medical records in part, ordering the applicant to produce records relevant to his acquired brain injury, medication, and alcohol contraindications, applying the 'arguable relevance' threshold.

The Tribunal allowed a minor factual amendment to the responses and struck a requested remedy on consent, but denied the remaining requests as premature or unnecessary.