Irvin Schein

The plaintiffs sought costs in relation to an ex parte Mareva, Norwich and preservation order obtained against the defendants and for responding to a motion to set aside the order.

Farhad Eshfagh, who was partially successful in having the Mareva injunction lifted, also sought costs.

The court declined to award costs at the interlocutory stage, finding it premature to do so given that the matter remains ongoing and no final determination on the merits has been made.

The court rejected claims for substantial indemnity costs, finding no reprehensible or scandalous conduct warranting such an award.

Costs were ordered to be in the cause, to be determined at trial.

The decision concerns a motion to set aside or vary a Mareva injunction, Norwich order, and preservation order obtained ex parte by the plaintiffs in a cryptocurrency mining business dispute.

The court finds a strong prima facie case of fraudulent misrepresentation against most defendants, upholds the Mareva and preservation orders (except as against Farhad Eshfagh), and addresses the standards for full and frank disclosure on ex parte motions, risk of dissipation, and balance of convenience.

LivingArt Kitchens Inc. sought an interim and interlocutory injunction against three former employees/independent contractors and their associated corporations, alleging breaches of contract, fiduciary duties, and misappropriation of confidential information.

The extensive relief sought included prohibitions on competing, soliciting clients, using confidential information, and various accounting and asset freezing orders.

The court dismissed the motion, finding that LivingArt failed to establish a strong prima facie case, demonstrate irreparable harm, or show that the balance of convenience favored granting the injunction.

The court noted significant evidentiary issues and procedural irregularities, concluding that damages would be an adequate remedy if breaches were proven at trial.

This is a costs endorsement following the dismissal of the defendants' anti-SLAPP motion under section 137.1 of the Courts of Justice Act.

The plaintiffs, who successfully resisted the anti-SLAPP motion, sought costs.

The court awarded costs to the plaintiffs, finding "compelling facts" to justify the award, including the significant reputational harm caused by the defendants' malicious and widely broadcast statements, particularly to a professional lobbyist.

The decision emphasized the need to deter meritless anti-SLAPP motions and fixed costs at $50,000, aligning with the Court of Appeal's suggested ceiling.

The defendants brought an anti-SLAPP motion under the Courts of Justice Act to dismiss a libel action initiated by the plaintiffs.

The defendants argued the action aimed to stifle their public interest discussions on vaccine passports, Christian influence in government, and political lobbying.

The plaintiffs contended the defendants' expressions were false and defamatory.

The court applied the anti-SLAPP test, finding that the plaintiffs' claim had substantial merit and the defendants had no valid defense (rejecting defenses of truth, repetition, fair comment, and responsible communication).

The court also determined that the harm suffered by the plaintiffs was sufficiently serious to outweigh the public interest in protecting the defendants' expression.

Consequently, the defendants' motion to dismiss was dismissed, allowing the libel action to proceed.

The defendant brought a motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action arising from a tweet about the plaintiff media outlet.

The court found the tweet related to a matter of public interest.

While the plaintiff established a real prospect of success on the merits and that the defences of fair comment and justification might not succeed, it failed to demonstrate the existence of harm resulting from the tweet.

The court concluded the public interest in continuing the action did not outweigh the public interest in protecting the defendant's freedom of expression.

The action was dismissed with costs awarded to the defendant.

This decision provides supplementary reasons regarding a motion to discharge a certificate of pending litigation (CPL).

The applicants, 10381187 Canada Inc. and Elias Markos, leased a property from the respondent, Elena Cherny, for short-term rentals.

After the City of Toronto issued an Order to Comply due to illegal construction, Cherny prevented the applicants' access.

The applicants sought specific performance and damages, registering a CPL.

Cherny moved to discharge the CPL.

The court had previously ruled that specific performance was not an available remedy as damages were adequate.

In these supplementary reasons, the court declined to add a condition to the CPL discharge order to preserve the applicants' right of first refusal, reaffirming that specific performance was unavailable because the property was not unique and damages were an adequate remedy.

The respondent, Elena Cherny, leased a house to the applicants, 10381187 Canada Inc. and Elias Markos, for a 10-year term, with the understanding that it would be renovated into six units for short-term rentals.

Cherny completed the renovations without proper planning permission or building permits.

After a City of Toronto Order to Comply, Cherny restored the house to a single-family dwelling and locked out the applicants.

The applicants sought specific performance of the lease and damages, registering a certificate of pending litigation (CPL) on the property.

Cherny brought a motion to discharge the CPL.

The court found that damages would be an adequate remedy for any breach of the lease, as the property was not unique in the commercial context of short-term rentals, and specific performance was not possible given the unlikelihood of obtaining the necessary zoning variances.

The CPL was discharged with conditions to protect the applicants' potential damages award, and a trial was ordered to determine the legality of the lease and whether Cherny breached it.

The plaintiff and third party moved for contempt of court against the defendants for failing to remove a dock as ordered in a previous trial judgment.

The court heard evidence from a Ministry of Natural Resources official regarding the defendants' efforts to obtain the necessary work permits for the removal.

The court found that the defendants were making genuine efforts to comply with the judgment and navigate the regulatory requirements, and therefore dismissed the contempt motion, ordering the defendants to continue using best efforts to remedy the nuisance.

The plaintiff and third party moved for contempt against the defendants for failing to remove a dock as ordered following a trial.

The defendants argued that the delay was due to the need for a Ministry of Natural Resources work permit and a pending appeal.

The court found that while the defendants improperly delayed applying for the permit while seeking a stay, they were justified in waiting for the permit before commencing demolition.

The court adjourned the contempt motion to allow time for the permit to be issued and the work to be completed, with leave to return if further delays occur.

This endorsement addresses the costs arising from a two-week trial where the Plaintiff and Third Party were entirely successful.

The court awarded substantial indemnity costs for the trial, citing the Defendants' unreasonable litigation conduct and the Garber Defendants' rejection of a generous Rule 49 offer to settle.

Additionally, costs thrown away due to an adjournment caused by Ms. Garber's ill health were awarded against the Garber Defendants, though reduced from the amount claimed.

The decision also clarifies that the Costs Subcommittee's recommended rates for Rule 57 are outdated and discusses the limited relevance of a litigant's ability to pay costs without sufficient evidence.

During a trial for nuisance, the defendants sought to introduce evidence of the plaintiff's alleged retaliatory conduct (e.g., loud music, smoke) to mitigate punitive damages.

The court ruled this evidence inadmissible, finding no causal connection between the plaintiff's post-nuisance conduct and the defendants' initial actionable conduct (building a dock) or their failure to rectify it.

The court emphasized that for such evidence to be relevant to punitive damages, it must have provoked the defendant's actionable conduct, and any defense based on the plaintiff's conduct influencing the failure to rectify must be pleaded.

The applicant condominium corporation sought relief from an allegedly oppressive shared facilities agreement (CRA) imposed by the declarant developer, and brought several actions for construction deficiencies and property management breaches.

The court found the CRA produced an oppressive result due to the conflicted manager's conduct and amended the agreement to allow the condominium to terminate the manager without cause.

The court also ruled on multiple summary judgment motions regarding construction deficiencies, dismissing the first action as a nullity for lack of statutory notice to owners, and granting summary judgment on various specific deficiency claims based on limitation periods and warranty coverage.

Damages were awarded for specific proven deficiencies and against the former property manager for failing to maintain insurance records.

The applicant sought to enforce payment of a $263,600 demand Promissory Note issued by the respondent in connection with a share purchase transaction.

The respondent argued that other agreements, including a Services Agreement and a Side Letter Agreement, altered the terms of the Note such that it was not payable on demand.

The court found that the Promissory Note was a valid, unconditional promise to pay and that the entire agreement clauses in the other contracts did not override the Note's plain language.

Summary judgment was granted in favour of the applicant for the full amount, plus costs.

The moving party sought to discharge a certificate of pending litigation obtained ex parte by the responding party in connection with a disputed agreement of purchase and sale for development land.

The motion alleged failure to provide full and frank disclosure on the ex parte motion, absence of a reasonable claim to an interest in land, and requested discretionary discharge under s. 136(6) of the Courts of Justice Act.

The court held that the affidavit filed on the ex parte motion adequately disclosed the material facts and fairly summarized the parties’ positions.

The responding party demonstrated a reasonable claim for specific performance and established that the property was unique in light of its intended commercial redevelopment and rezoning efforts.

Balancing the equitable factors, including potential harm and difficulty of assessing damages, the court declined to discharge the certificate.