James M. Wortzman

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiffs in a dispute over an alleged real estate joint venture.

The court found that the plaintiffs failed to make full and frank disclosure on the ex parte motion, specifically regarding guarantees and paid architectural services.

The court also determined that damages were an adequate remedy and the balance of convenience favoured discharging the CPL.

The CPL was discharged, subject to a condition requiring the defendants to provide 45 days' advance notice before transferring or encumbering the subject properties.

The appellants and respondents, real estate developers, were engaged in two companion actions arising from a joint venture and shareholders' agreement.

The motion judge granted summary judgment dismissing the appellants' action, finding a right of first refusal clause in the agreement to be an unenforceable restrictive covenant.

The Court of Appeal allowed the appeal and set aside the summary judgment, holding that partial summary judgment was inappropriate given the intertwined facts of the companion actions and the need for a factual matrix to interpret the contract.

The plaintiff sought a reconsideration of a costs decision awarding the defendant City partial indemnity costs of $10,517.19 for an abandoned motion.

The plaintiff argued it was unclear whether a response to the City's costs submissions was required.

The court dismissed the reconsideration request, noting the plaintiff failed to respond to the duly served submissions or challenge the presumptive entitlement to costs under Rule 37.09(3), and confirmed the previous costs award.

The plaintiff sought costs of $89,304.86 on a partial indemnity basis following a successful motion for declaratory relief regarding an easement over the defendant's property.

The defendant argued for each party to bear its own costs due to divided success, or alternatively, a reduced amount.

The court rejected the divided success argument, finding the plaintiff was the successful party, but reduced the costs award to $45,000 all inclusive, finding the plaintiff's claim excessive and noting the abandoned claim against the municipality.

The plaintiff Medical Centre and defendant JD Development owned abutting properties subject to a system of easements.

Both submitted redevelopment site plans to the City of Markham.

The Medical Centre's plan relied on paving an easement over JD Development's property for vehicular access, while JD Development's plan showed the easement as partially sodded, which would block vehicular access.

The Medical Centre brought a motion for declarations regarding its right to use and pave the easement.

JD Development argued the Local Planning Appeal Tribunal (LPAT) had exclusive jurisdiction.

The Superior Court held it had jurisdiction to determine property rights, declared the Medical Centre had the right to use the easement for vehicular traffic and to pave it at its own expense, but declined to order JD Development to amend its site plan.

The appellants appealed a decision of the Superior Court regarding the interpretation of a "Net Developable Area" clause in two agreements for the purchase and sale of development lands.

The central issue was whether tableland used for storm water management ponds was included in the definition of Net Developable Area when such lands fell within the Protected Countryside designation of the Greenbelt Plan.

The Court of Appeal upheld the application judge's interpretation, finding that the parenthetical exception did not apply to Greenbelt lands and that the terms "open space lands" and "Greenbelt lands" have distinct meanings subject to different planning controls.

Delta Elevator Company Limited brought a motion to enforce a settlement agreement with 31 Kingsbury Inc. regarding the installation and inspection of elevators.

Kingsbury opposed, arguing that no settlement was reached, or that it should not be enforced, or that granting judgment would be akin to partial summary judgment.

The court found that the parties had reached a legally binding settlement with agreement on all essential terms, and that Delta had not repudiated the agreement.

The court granted Delta's motion, ordering Kingsbury to comply with the settlement terms and pay costs.

This decision concerns the costs award following a successful summary judgment motion where the defendants, Schembri et al., had a $30,500,000 claim against them struck in its entirety.

Schembri sought $499,933.06 in costs.

The plaintiffs, Way et al., opposed the quantum, arguing for a reduction.

The court found Schembri's costs reasonable, noting the complexity of the intertwined actions and the plaintiffs' extensive, unfocused responding material.

The court also drew an adverse inference from the plaintiffs' failure to provide their own cost outline.

The full amount of costs requested by Schembri was awarded.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action for breach of a non-competition clause in a shareholders agreement and breach of fiduciary duty.

The parties, former joint venturers in real estate development, had a falling out.

The plaintiffs alleged the defendants breached the agreement by pursuing other developments without presenting them first.

The court found the non-competition clause was ambiguous, constituted an unenforceable agreement to agree, and lacked a reasonable time limit.

The court also rejected the plaintiffs' unpleaded argument regarding breach of statutory fiduciary duties under the Business Corporations Act.

The plaintiffs' action was dismissed in its entirety.

The plaintiffs requested an amendment to the court's previous reasons dismissing their request for injunctive relief, citing an error in a transcript regarding whether the Law Society of Upper Canada was investigating the plaintiffs.

The defendant conceded the transcript error but argued the dismissal should be maintained.

The court corrected the factual error in its supplementary reasons but declined to amend its previous order, finding that the plaintiffs' case for injunctive relief was still not ironclad enough to warrant the exceptional remedy sought.

The defendant landlord brought a motion to discharge an ex parte Certificate of Pending Litigation (CPL) obtained by the plaintiff tenant regarding a hotel property.

The tenant had a right of first refusal to match a third-party offer to purchase the property.

After the third-party transaction failed, the landlord offered the property to the tenant on the same terms, but the tenant sought to amend its claim to enforce a different agreement with an abatement of the purchase price.

The court found that the tenant's only enforceable right was to match the original offer, which it failed to do.

Applying the factors for discharging a CPL, the court concluded the CPL should be vacated as the tenant no longer had a reasonable claim to the interest in the land on the terms originally pleaded.

The plaintiff and defendant, siblings, were involved in a dispute over the ownership and management of a family partnership.

The defendant moved for summary judgment, arguing the plaintiff's claim was for breach of contract and statute-barred.

The plaintiff brought a cross-motion seeking the appointment of a receiver and manager, further production, and an accounting.

The court dismissed the defendant's summary judgment motion, finding the plaintiff's claim was grounded in breach of fiduciary duty, to which no limitation period applied under the transition provisions of the Limitations Act, 2002.

The court also dismissed the plaintiff's motion, finding no clear evidence of irreparable harm to justify the extraordinary remedy of appointing a receiver, and concluding the requests for production and an accounting lacked a proper jurisdictional basis.

The Landlord, 1694879 Ontario Inc., brought claims for fraudulent removal of goods against its tenant, Baffo's Incorporated, and several "Personal Defendants" who allegedly aided the removal.

Baffo's and the Personal Defendants brought cross-motions for summary judgment to dismiss these claims.

Baffo's also counterclaimed for wrongful distress and conversion, and sought punitive damages.

The court dismissed the Landlord's fraudulent removal claims against all defendants, finding no fraudulent intent as the goods removed were done so with the Landlord's consent (as brokered by police) and the remaining goods far exceeded the rental arrears.

The court granted summary judgment to Baffo's on its wrongful distress and conversion claims, finding the Landlord's actions illegal, excessive, and oppressive due to unlawful entry, lock changes, inflated arrears claims, seizure of fixtures, and unreasonable delay in selling goods.

The court also found Daryl Black, the Landlord's president, personally liable for the wrongful distress.

Punitive damages of $20,000 were awarded to Baffo's, and substantial indemnity costs were awarded to the Personal Defendants ($140,000) and Baffo's ($78,000).

Damages for wrongful distress and rental arrears were referred to a Master.

A motion was brought by 40 purchasers of residential units from various Urbancorp entities in CCAA and BIA NOI proceedings.

The purchasers sought the appointment of Dickinson Wright LLP as their representative counsel and an order for their legal fees, capped at $150,000, to be paid and secured by an administrative charge against the four properties.

The properties were vacant land, and the significant deposits received by Urbancorp companies were not held in trust and had been spent.

The motion was supported by Tarion but opposed by the Monitor, the Foreign Representative of Urbancorp Inc., the Urbancorp entities, and certain other purchasers and a secured lender for one project.

The court granted the appointment of Dickinson Wright as representative counsel, but stipulated an opt-in process for purchasers rather than an opt-out.

The court denied the request for an administrative charge for legal fees, ruling that fees and disbursements could be paid by the estates from the distributions made to those purchasers who chose to be represented by Dickinson Wright.

Following the dismissal of two appeals heard together, the successful respondents sought costs.

One respondent sought substantial indemnity costs based on a Rule 49 offer to settle, while the other sought partial indemnity costs.

The appellant argued that no costs should be awarded because the appeal raised a novel issue of law regarding the interpretation of the Construction Lien Act.

The Divisional Court rejected the appellant's argument, finding the issue was not novel and the appellant's interpretation would have rendered section 20(2) of the Act meaningless.

The court awarded costs of $7,500 to each of the successful respondents.

The appellant, a plumbing subcontractor, registered a general lien against all lots in two subdivisions after the general contractor made an assignment in bankruptcy.

The owners had written contracts with the general contractor specifying that liens would arise and expire on a lot-by-lot basis.

The Divisional Court upheld the motions judge's decision to discharge the general liens, finding that section 20(2) of the Construction Lien Act extinguishes general lien rights for both contractors and subcontractors when the primary contract contains a lot-by-lot provision.

The court also dismissed the appellant's attempt to continue the action for unjust enrichment and quantum meruit, and refused leave to appeal costs.

The plaintiffs sought damages for wrongful dismissal, unpaid commissions, and punitive damages arising from the termination of a sales and marketing role in condominium developments.

The court found that the plaintiff was an employee rather than an independent contractor, notwithstanding the use of corporate invoices for payment.

After being terminated without notice, the plaintiff was entitled to commissions on completed condominium sales, damages for five months’ reasonable notice, and punitive damages due to the defendant’s post‑termination conduct, including intimidation and a baseless counterclaim alleging theft of documents.

The court rejected the defence based on the Real Estate and Business Brokers Act because it was not pleaded and because the plaintiff acted as a full‑time employee.

Judgment was granted in favour of the plaintiff and the defendant’s counterclaim was dismissed.

The appellants appealed an order dismissing their application to assess the legal accounts rendered by the respondent law firm.

The Court of Appeal allowed the appeal, finding that the application judge erred in concluding there were no special circumstances to permit the assessment.

The court noted the application judge failed to account for an admitted 15% discount that may not have been honoured and the existence of an escrow agreement securing the disputed amount.

Leave was granted to assess all accounts rendered by the respondent.

The appellants appealed an order granting the respondent's motion for summary judgment and dismissing their claim for rectification.

The appellants argued the motion judge applied the incorrect test for summary judgment and improperly made credibility determinations.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly directed herself to whether the record raised a genuine issue requiring a trial.

The documentary record confirmed that the requirements for rectification could not be met, which was dispositive of the motion.

The defendant landlord moved for summary judgment dismissing a claim seeking rectification of a lease amendment.

The tenants alleged that an early termination clause permitting the landlord to terminate the lease on 270 days’ notice had been inserted without their knowledge or agreement.

The court held that rectification requires convincing proof of a definite and ascertainable prior oral agreement, knowledge of the mistake amounting to fraud or its equivalent, and proof of the precise form of the corrected instrument.

The evidentiary record consisted largely of self‑serving assertions unsupported by documentary evidence and failed to demonstrate any prior agreement excluding the termination clause.

Summary judgment was granted, the claim for rectification dismissed, and the certificate of pending litigation vacated.