Gregory M. Sidlofsky

This is a costs endorsement following a decision on two related applications.

The Umbrio Parties were partially successful in their application, securing a net payment of $69,256.

The court rejected the Leonardelli Parties' argument that their offer to settle, though close, should shift costs under Rule 49.13, finding the difference material.

The Umbrio Parties sought substantial indemnity costs, but the court awarded partial indemnity costs, stating that litigation complexity alone does not justify a higher scale.

For the cross-application, the court found divided success and awarded no costs.

Ultimately, the Umbrio Parties were awarded $40,000 in partial indemnity costs for their application.

The appellant sought a review of a chambers judge's order that partially lifted an automatic stay pending appeal, arguing the judge erred in finding financial hardship without sufficient evidence.

The Court of Appeal dismissed the appellant's motion for review, finding no error in principle or unreasonable result in the chambers judge's exercise of discretion under Rule 63.01(5).

The court affirmed that the chambers judge correctly applied the factors for lifting a stay, including financial hardship, ability to repay, and appeal merits, and that the appellant's own admission regarding the minimum amount owed supported the decision.

This case involved cross-applications concerning the dissolution of a business partnership between two investment professionals, Rick Umbrio and Sandra Leonardelli, who co-owned Silveroak Wealth Management Inc. Disputes arose over post-closing adjustments to the purchase price for Leonardelli's shares, division of bank account balances, entitlement to commissions, and liabilities under a sublease agreement.

The court interpreted the Letter Agreement governing the transaction, applying principles of contractual interpretation to determine the correct post-closing adjustment for client assets under management (AUM) and the entitlement to commissions.

The court also addressed claims of breach of a sublease agreement.

The Court of Appeal for Ontario heard two motions arising from an appeal of a trial decision concerning the division of a business.

The appellant sought to file an extended factum, which was unopposed and granted.

The respondent moved to lift an automatic stay of enforcement for a portion of the trial judgment, arguing financial hardship and that the amount represented the appellant's "best position" even if successful on appeal.

The court granted the motion to lift the stay for $1,874,400, finding demonstrable hardship to the respondent, minimal risk of non-recovery for the appellant given his admitted liability, and that the appeal on factual findings was not strong.

The order included a proportional transfer of shares to the appellant upon payment.

This appeal addressed a pre-contractual negligent misrepresentation and the interpretation of a commercial lease.

The trial judge found that the tenant (respondent) reasonably relied on the landlord's (appellant's) negligent misrepresentation regarding free, accessible, and convenient customer parking, and that the entire agreement provision in the lease did not preclude the tenant's claim for damages.

On appeal, the landlord argued the trial judge erred by failing to consider the lease as a whole, specifically articles related to parking, which it contended formed part of the "subject matter" of the lease.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that customer parking was not the "subject matter" of the lease and that the entire agreement clause did not preclude the claim, applying a deferential standard of review for contractual interpretation.

The plaintiff, Ontario, brought a motion for leave to amend its statement of claim to increase damages, provide further particulars of alleged kickback schemes, and add additional defendants in a civil fraud action.

The defendants and proposed added defendants opposed the motion, arguing the proposed amendments lacked particularity, used vague 'and/or' formulations, and failed to meet the minimum level of material fact disclosure.

The court agreed that several proposed paragraphs were deficient as they did not clearly identify which allegations were made against which specific defendants.

The motion was dismissed, but the plaintiff was granted leave to renew its motion with a properly drafted amended pleading.

The appellant law firm appealed a Superior Court order that set aside an Associate Judge's decision to reinstate their action, which had been dismissed for delay.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly identified legal errors in the Associate Judge's application of the Reid v. Dow Corning Corp. test for reinstating actions dismissed for delay.

Specifically, the Associate Judge erred by treating periods of delay in isolation and by focusing on whether delay was "forgivable" rather than "sufficiently explained," despite evidence of egregious and unexplained delays.

The Court affirmed the motion judge's appropriate application of appellate jurisdiction and deference principles.

The appellants, Eugene Bokserman and Elena Krasnov, appealed a summary judgment that found a fraudulent conveyance of their jointly held home and awarded costs.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the conveyance was fraudulent, the refusal to admit fresh evidence, the determination that the action was not statute-barred, and the substantial indemnity costs award.

The court affirmed the motion judge's ability to assess credibility and weigh evidence in a summary judgment context and found no error in the application of the Fraudulent Conveyances Act or the Limitations Act.

Following their separation, the parties disputed the ownership and value of their jointly built business, Holdco.

The applicant claimed he owned 70% of the common shares, while the respondent claimed a 50% ownership based on their post-separation conduct and equal dividend payments.

The court found the respondent owned 50% of the shares, noting that the corporate records were inaccurate and the applicant had treated the respondent as an equal owner.

The court also held that the claim was not statute-barred and valued the business at $10,800,000, ordering the applicant to pay the respondent $5,400,000 for her shares.

The appellant appealed the dismissal of his application to declare his late father's 2019 will invalid due to undue influence.

The application judge found the appellant lacked standing under the Rules of Civil Procedure and the Estates Act, as an earlier 1996 will (under which he was not a beneficiary) would take effect if the 2019 will was set aside.

The Court of Appeal upheld this decision, finding no error in the application judge's reasoning regarding standing and the onus on the appellant to adduce evidence challenging the 1996 will's validity.

The appeal was dismissed with costs awarded to the respondents.

The applicant brought a motion for summary judgment to dismiss the respondent's action regarding the allocation of shareholdings in a holding company.

The parties, former spouses, disputed whether the respondent owned 30% or 50% of the shares, with the respondent claiming a constructive trust over 20% of the shares due to family law and unjust enrichment principles.

The court found that the corporate records were deficient and that the intertwined family law complexities, including the respondent's decision not to seek an equalization payment, created critical factual disputes.

The court concluded there was a genuine issue for trial and denied summary judgment.

Melissa Hrvoic brought a motion seeking to compel Aaron Franks to answer 53 questions refused on grounds of solicitor-client and litigation privilege during a Rule 39.03 examination.

The motion also faced dismissal due to Melissa Hrvoic's non-compliance with a prior interlocutory order to return $500,000.

The court found the questions relevant and the privileges properly asserted.

It determined that Mr. Hrvoic had not waived privilege by including an explanatory letter from his lawyer in the record, as this did not constitute using legal advice as a material fact in his claim or defence, nor was it equivalent to filing an affidavit.

The court also dismissed the motion due to Melissa Hrvoic's non-compliance with Justice Dow's order.

The applicant sought relief from forfeiture arising from an agreement of purchase and sale after breaching a term requiring the vendor's prior written consent to list or sell the townhouse.

The applicant had listed and sold the property without consent, leading the respondent vendor to terminate the agreement and forfeit deposits and occupancy fees.

The court dismissed the application, finding the applicant's conduct, the gravity of the breach, and the disparity between the forfeited property value and damages did not warrant relief from forfeiture.

Furthermore, the retention of the deposit and occupancy fees was not found to be unconscionable, considering the commercial context and the applicant's sophistication.

This endorsement addresses a procedural case conference concerning ongoing litigation between separated spouses.

The applicant, Mr. Hrvoic, initiated an application for Ms. Hrvoic to sell her shares in a family business.

Following Mr. Hrvoic's termination of Ms. Hrvoic's employment, Ms. Hrvoic "borrowed" $600,000 from a line of credit.

Dow J. subsequently ordered Ms. Hrvoic to repay $500,000 of this amount.

Ms. Hrvoic now seeks leave to appeal this term and an urgent stay pending appeal.

The court noted the parties' contentious approach and set a schedule for the motion for a stay pending appeal, declining to grant an interim stay.

The plaintiffs and defendants, former business partners in the security surveillance equipment industry, brought competing motions for interlocutory injunctive relief following a bitter separation.

The plaintiffs sought to enjoin the defendants from using a disputed trademark, accessing the plaintiffs' computer systems, and making defamatory statements.

The defendants cross-moved to enjoin the plaintiffs from competing and soliciting customers.

The court dismissed the trademark injunction, finding damages were an adequate remedy, but granted the injunctions regarding computer access, website redirection, and defamation.

The defendants' cross-motion was dismissed as premature and lacking evidence of irreparable harm.

The appellant appealed from an order of the Superior Court of Justice dismissing his application against his daughters regarding the transfer of a mortgage from a family company to a family trust.

The Court of Appeal determined that it lacked jurisdiction to hear the appeal because the order arose from an oppression application under the Business Corporations Act, for which the proper appellate route is to the Divisional Court, not the Court of Appeal.

The court rejected the appellant's arguments that section 6(2) of the Courts of Justice Act or Rule 6.01(1) of the Rules of Civil Procedure permitted the Court of Appeal to hear the appeal, and declined to reconstitute itself as the Divisional Court.

The appeal was transferred to the Divisional Court.

The appellant appealed the motion judge's order striking his statement of claim and dismissing his action against his daughters and their company.

The appellant sought to challenge the validity of a family trust established in connection with an estate freeze in 2007.

The motion judge had struck the claim on the basis of res judicata, collateral attack, and abuse of process, finding that the appellant could have raised the validity issue in the daughters' prior oppression application but failed to do so.

The Court of Appeal upheld the motion judge's decision, finding that the doctrine of abuse of process alone warranted striking the claim, as allowing the action to proceed would constitute an attempt to relitigate a matter already decided.

The appellant appealed a decision dismissing his application for a declaration of ownership and exclusive use of a disputed strip of land based on adverse possession.

The strip had been enclosed by a fence between two properties from December 1992 to December 2002.

The application judge found that while actual possession was established, the appellant failed to prove the requisite intention to exclude the true owner or effective exclusion.

The Court of Appeal upheld the dismissal, finding no errors of law or principle in the application judge's reasoning and confirming that the presumption of intention to exclude arising from a fence is not mandatory and may be rebutted by the absence of corroborating evidence.

This is a costs endorsement following the dismissal of the respondent's summary judgment motion in an estate litigation matter.

The applicants sought substantial indemnity costs against the respondent personally.

The court found the respondent personally liable for costs, rather than the estate, as the litigation stemmed from his personal conduct as power of attorney and estate trustee.

Crucially, the court found the respondent's counsel breached his duty of candour to the court by failing to disclose a directly on-point, adverse binding authority (Wall v. Shaw) during submissions.

This breach of professional conduct was a significant factor in the decision to award substantial indemnity costs to the applicants.

The respondent, in his personal capacity and as estate trustee, moved for summary judgment to dismiss claims by his siblings (the applicants) regarding nine Arizona properties.

The respondent argued the claims were statute-barred, subject to res judicata, or did not raise a genuine issue for trial.

The court dismissed the motion, finding that res judicata did not apply as the issues were not determined in a prior passing of accounts, and the limitation periods under the Trustee Act or Limitations Act, 2002 did not apply to notices of objection in a passing of accounts application.

The court also found that the respondent failed to account for inter vivos gifts of property, raising factual and legal questions requiring a trial.