Gregory A. Cherniak

The court approved a proposed settlement and certified the action for settlement purposes under the Class Proceedings Act, 1992.

The class consists of approximately 100 investors in a failed real estate limited partnership project.

The settlement restores the class members’ proportionate interest in the property, now with greater development density and less debt, and is considered generous.

The court found the settlement fair, reasonable, and in the best interests of the class, and approved class counsel’s fees.

The action will continue only as between the defendants for unresolved crossclaims.

The Court of Appeal for Ontario considered an appeal by 100 Bloor Street West Corporation regarding the calculation of realty taxes and a substantial indemnity costs award in a commercial lease dispute with Barry’s Bootcamp Canada Inc. The court upheld the motion judge’s decision requiring the landlord to use a single, consistent method for calculating realty taxes attributable to both the leased premises and the building’s parking garage, rejecting the landlord’s attempt to “mix-and-match” calculation methods.

However, the court allowed the appeal on costs, finding the original award excessive and reducing it to $300,000 plus disbursements.

The decision clarifies the contractual interpretation of lease provisions granting discretion to landlords and the principles governing costs in complex commercial litigation.

The current owner of the subject property brought a motion to dismiss the municipality's assessment appeal, arguing that the municipality failed to provide proper notice under section 40(9) of the Assessment Act by mailing the notice of appeal to the former owner.

The former owner was incorrectly listed on the returned assessment roll due to the timing of the sale.

The Assessment Review Board dismissed the motion, finding that section 40(9) requires notice to be sent to the person liable to assessment as shown on the assessment roll.

The Board held that the assessment roll is binding until corrected, and the municipality complied with the statutory requirements by serving the person named on the roll within the limitation period.

The applicant physician was found guilty of professional misconduct for sexually abusing a patient and his registration was revoked.

After being acquitted in a related criminal trial, he sought to re-open the tribunal hearing to introduce fresh evidence.

The tribunal's Case Management Chair dismissed the motion, finding the tribunal was functus officio and lacked jurisdiction under its rules to re-open the hearing.

The Divisional Court dismissed the application for judicial review, holding that the Chair's interpretation of the tribunal's rules was reasonable and did not provide a statutory exception to the doctrine of functus officio.

The Court of Appeal for Ontario reviewed the parties' costs submissions following an appeal.

The court determined that it was not an appropriate case for costs and, accordingly, made no order for costs of the appeal.

The appellants, Fredrick and Patricia Kentner, appealed the summary dismissal of their first appeal to the Provincial Offences Appeal Court, which concerned convictions and a sentence for environmental offences related to unlawful fill operations.

The appeal was based on claims of ineffective assistance of counsel by their paralegal and errors in the original conviction and sentence.

The Court of Appeal dismissed the appeal, finding no ineffective assistance as the appellants' failure to pay fines (a mandatory condition for appeal) was a deliberate choice unrelated to the paralegal's conduct, and a waiver application would have had no prospect of success.

The court also found no merit in the conviction appeal, affirming the trial judge's reliance on regulatory maps for jurisdiction, and no basis to interfere with the sentence, which included a $25,000 fine and a property rehabilitation order.

The Ontario Securities Commission (OSC), a judgment creditor of Vadim Tsatskin, brought a motion for leave to issue a certificate of pending litigation (CPL) against a property solely owned by Tsatskin's spouse, Irene Bromberg.

The OSC alleged that Bromberg held a beneficial interest in the property in trust for Tsatskin, who had orchestrated a scheme to hide assets and avoid payment of a $5.3 million debt from fraudulent investment schemes.

Bromberg opposed, citing clean hands, delay, and prejudice.

The court granted the CPL, finding a triable issue for a resulting or constructive trust and that the equities favored the OSC, given the significant dissipation risk posed by Tsatskin's fraudulent history and the lack of substantiated prejudice from Bromberg.