Hershel J. Sahian

The court considered whether the Morris Guy Jones Family Trust was a sham, whether it was void for lack of certainty of subject-matter, and whether the respondent breached her duties as trustee.

The court found the trust was not a sham, was valid, and that the respondent breached the trust by transferring trust assets to a joint account.

The respondent was removed as trustee and the applicant was appointed in her place.

The respondent was ordered to account, restore trust assets, and disgorge any profits.

The moving parties brought a motion for leave to appeal an interlocutory order.

The Divisional Court dismissed the motion for leave to appeal without costs.

Anil Persaud, as Litigation Administrator for the Estate of Rita Persaud, brought a motion seeking to dismiss applications by Girga Persaud and Mohini Persaud, declare Chabiraj Persaud in contempt of court, and for costs and transfer of funds.

The court dismissed both Girga's and Mohini's applications due to delay and vexatious conduct, respectively.

It declined to find Chabiraj in contempt for breach of a monetary order but found his conduct reprehensible.

Substantial indemnity costs were awarded against Chabiraj and Mohini equally for the motions and applications.

The request to transfer all proceeds to the Litigation Administrator's counsel was denied, with only reimbursement for storage fees approved, pending collection of damages from Chabiraj and proper estate administration.

This judgment addresses two consolidated applications: one by Elizabeth Dobis, Estate Trustee, seeking damages and costs from Mark Dobis for misappropriated estate funds, and another by Mark Dobis to pass accounts.

The court found that Mark Dobis had misappropriated funds and ordered him to pay $20,932.24 in damages to the Estate.

The court denied Mark Dobis's request for set-off against potential future claims for dependent's support or unjust enrichment, citing lack of equitable grounds and unliquidated claims.

Mark Dobis's accounts were passed, with the objection resolved by the damages award.

Elizabeth Dobis was also awarded costs totaling $17,100 for her application and $2,100 for a contempt motion that prompted Mark Dobis to comply with a prior order to pass accounts.

The appellant contractor appealed a decision dismissing its construction lien action against the respondent homeowners.

The appellant had performed emergency plumbing and remediation work, billed an excessive amount, left the work unfinished, and used a fake law firm to threaten the homeowners.

The Associate Justice dismissed the lien, contract, and quantum meruit claims because the appellant was not the contracting party, and dismissed the unjust enrichment claim as vexatious and an abuse of process.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Associate Justice's conclusion that allowing the appellant to misuse the legal process in furtherance of a deceptive scheme would bring the administration of justice into disrepute.

The Litigation Administrator for the Estate of Rita Persaud brought a motion to enforce a settlement agreement against Chabiraj Persaud, the deceased's son, concerning the sale of a residential property.

The Litigation Administrator alleged that Chabiraj breached the agreement by further encumbering the property, increasing existing charges, and improperly withdrawing funds for an unsecured line of credit from the sale proceeds.

The court found that Chabiraj breached the settlement agreement by taking out new mortgages/lines of credit and improperly deducting funds, awarding damages of $220,578.48 plus pre-judgment interest to the Estate.

The court declined to find a breach regarding a commercially unreasonable realtor commission due to lack of evidence and also denied the request for injunctive relief.

The respondent, Litigation Administrator for the Estate of Rita Persaud, successfully moved for an order declaring the applicant, Mohini Persaud, a vexatious litigant.

The court found a persistent pattern of vexatious proceedings and conduct across multiple court levels, including repeated issues, failure to comply with court directions, excessive communication, and non-payment of costs awards.

As a result, the applicant was barred from instituting further proceedings in Ontario courts without leave and required leave to continue her current application.

The defendants, an insurance company and a public adjuster, brought a motion for summary judgment to dismiss the plaintiffs' action concerning a fire insurance claim.

The plaintiffs alleged the settlement and release were unfair due to an imbalance of bargaining power and the defendants' negligence/bad faith.

The court dismissed the summary judgment motion, finding genuine issues for trial regarding the validity and clarity of the release, the professional negligence claims against the adjuster, and whether expert evidence on the standard of care was required given the alleged egregious conduct.

The court emphasized caution against granting partial summary judgment due to risks of delay, expense, and inconsistent findings.

The self-represented applicant brought a motion for leave to appeal interlocutory orders in an ongoing estate litigation matter.

The court established an expedited case management schedule to decide the leave motion before the underlying motions were heard.

The applicant engaged in a vexatious campaign of emails, refusing to follow directions, challenging the court's process, and ultimately failing to serve and upload her motion materials by the deadline.

The Divisional Court dismissed the motion for leave to appeal as abandoned due to the applicant's failure to comply with case management directions and warned her against further vexatious conduct.

In the context of a complex family law and related debt action, the parties brought cross-motions to compel answers to undertakings and refusals from questioning.

The corporate respondent was petitioned into bankruptcy shortly before the hearing, triggering an automatic stay.

The court ordered the individual respondents to produce relevant corporate and personal records in their possession, control, or power, finding that the bankruptcy stay did not relieve them of their personal discovery obligations.

The court also ruled on various claims of solicitor-client and litigation privilege, ordering the disclosure of legal fee amounts but protecting the identity of counsel and legal advice.

The defendant moved for summary judgment to dismiss the plaintiff's personal injury action, arguing it was time-barred under the Limitations Act.

The plaintiff sustained soft-tissue injuries in a motor vehicle accident and commenced the action more than two years later.

The court applied the discoverability principle for permanent injury claims under s. 267.5(5) of the Insurance Act, emphasizing that the limitation period does not begin until there is a sufficient body of evidence to reasonably persuade a judge that the injury constitutes a serious permanent impairment.

The court found that the plaintiff did not know her injuries were permanent at the time of the accident and that her lawyer only formed the opinion of permanent impairment after receiving a specific medical report.

The defendant's motion was dismissed, and costs were awarded to the plaintiff.

The plaintiffs brought a motion to strike the statement of defence of the defendant dentist for failure to comply with a production order and for obstruction of production and discovery by his former solicitors.

The court found that the plaintiffs and the co-defendant had conflated the production obligations of the defendant with those of his former law firm, which had previously represented both defendants on a joint retainer.

The court held that the defendant had belatedly complied with his obligations and could not be held responsible for the failings of the former law firm.

The motion to strike the defence was dismissed.

Following earlier motions seeking dismissal of two civil actions for delay, the court had dismissed the motions to dismiss but granted alternative relief compelling compliance with prior court orders, including outstanding undertakings.

The defendants and third party sought costs.

The court found that the plaintiffs had violated multiple court orders and allowed the actions to stagnate for several years, making the motion justified.

Applying Rule 57 and the fairness principles from Boucher, the court held that although the moving parties achieved only partial success, the plaintiffs’ conduct warranted a costs award.

Reduced costs were therefore ordered against the plaintiffs jointly and severally.

The defendants sought leave to bring a motion for summary judgment after the action had already been set down for trial.

The court considered whether Rule 48.04(1) of the Rules of Civil Procedure required leave for such a motion and the appropriate test for granting leave.

The court held that summary judgment motions fall within the phrase “any motion” under the rule and therefore require leave once an action has been set down for trial.

However, the court rejected the rigid requirement that the moving party demonstrate a substantial and unexpected change in circumstances.

Leave should be granted where the motion may reduce issues, shorten the trial, or eliminate the need for trial without causing undue delay.

The defendant appealed a Master's order dismissing her motion for leave to issue a third party claim.

The Master had dismissed the motion due to an 18-month delay, finding the defendant failed to prove there would be no prejudice to the plaintiffs.

The Divisional Court allowed the appeal, holding that the onus is on the opposing party to establish prejudice, and the plaintiffs had not opposed the original motion.

The court found the delay would not cause undue prejudice that could not be compensated by costs, and granted leave to issue the third party claim to avoid a multiplicity of proceedings.