James Patrick McReynolds

The moving parties brought a motion for leave to appeal an order of Justice Koehnen.

The Divisional Court dismissed the motion for leave to appeal.

As agreed by the parties, the moving parties were ordered to pay costs of $10,000 to the Mintz Family Group and $7,500 to SRTS LLP.

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.

This endorsement addresses the costs of a motion brought by Metro Ontario Real Estate Limited ("Metro") to strike paragraphs from Hillmond Investments Ltd.'s ("HIL") Reply and Defence to Counterclaim.

The motion was settled on consent, with the issue of costs deferred.

Metro sought $10,944.63 on a partial indemnity scale, while HIL argued for no costs.

The Master found that HIL's refusal to engage in discussions regarding amendments until the day before the motion necessitated the motion and was the primary factor contributing to the costs incurred.

Considering the proportionality and the conduct of the parties, the Master awarded Metro fixed costs of $4,000.

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 appellants, former clients of a law firm, appealed an order dismissing their application to assess 33 legal accounts issued between November 2010 and July 2013.

The appellants sought assessment on grounds of dissatisfaction with services and alleged overcharging, claiming special circumstances warranted assessment despite the application being brought more than 12 months after the accounts were issued.

The appellants argued they had only received the accounts in 2016 as a package with a demand letter, and cited their unsophistication, the high amount in dispute, and growing dissatisfaction as additional special circumstances.

The application judge rejected these arguments, finding the appellants' claim of non-receipt lacked credibility and noting they were sophisticated individuals who had previously paid substantial amounts and had not expressed dissatisfaction when services were rendered.

The Court of Appeal upheld the dismissal.

The applicant brought a motion under Rule 21.01(1)(b) to strike portions of the statement of claim or dismiss the action against them, arguing it failed to disclose a reasonable cause of action.

The plaintiffs had invested in a syndicated mortgage and lost their investment, alleging breach of contract, negligence, negligent misrepresentation, and civil conspiracy against various defendants.

The court found the pleadings deficient for all claims against the moving party due to a lack of specific facts establishing proximity, duty of care, or particulars as required by Rule 25.06(8).

The claims against the moving party were struck, but leave was granted to the plaintiffs to amend their statement of claim within 30 days.

Costs were awarded to the moving party on a partial indemnity basis.

The defendants brought a motion to set aside a default judgment related to a commercial lease dispute.

The court applied the five-factor test from Mountain View Farms Ltd. v. McQueen and found that while the defendants moved relatively promptly, they failed to provide a plausible explanation for their default and lacked an arguable defence on the merits due to a prior agreement waiving their claims.

The defendants' motion was dismissed.

The plaintiff's motion to amend the default judgment to reflect a prior payment was granted, reducing the principal amount to $85,850.00.

Following a successful appeal of a Master's motion, the appellant sought costs of the proceeding below in the amount of $47,735.55 on a partial indemnity basis.

The appellant argued for a higher-than-usual calculation (87% of actual fees) due to the respondent's delay tactics throughout the litigation.

The court declined to use the costs award to punish the respondent for general litigation conduct, noting that substantial indemnity costs were not warranted.

Applying standard partial indemnity principles, the court awarded the appellant $32,500, matching the amount the parties had previously agreed was reasonable for the Master's motion.

The plaintiffs (defendants to the counterclaim) brought a motion under Rule 56.01(1)(d) for an order requiring the corporate defendant (plaintiff by counterclaim) to post security for costs in the amount of $80,000.

The court found that while the corporate defendant was impecunious, it would be unjust to order security for costs because the counterclaim was closely related to the main action, the impecuniosity may have been caused by the moving parties' conduct, and the co-defendants undertook to pay any costs awarded against the corporate defendant.

The motion was dismissed.

The appellant appealed a Master's decision granting the respondent leave to amend its pleading to withdraw admissions.

The appellant argued the Master committed a palpable and overriding error by allowing amendments that were not based on newly discovered facts but rather on improving the respondent's litigation position, particularly in the context of a pending summary judgment motion.

The court found the Master misapprehended the evidence by confusing factual matters with advocacy positions and that there was no reasonable explanation for the late and strategic withdrawal of admissions.

The appeal was allowed, the Master's order set aside, and the respondent's motion to amend dismissed.

The Receiver sought a discharge order, addressing the enforceability of an indemnity agreement and entitlement to an HST refund.

The Indemnifying Parties argued the receivership proceeding was an improper venue for contract breach claims and raised misrepresentation defenses regarding the indemnity agreement, as well as a potential claim for the Receiver's alleged mismanagement of life insurance policies.

The court found the receivership proceeding an appropriate venue, granted summary judgment on the enforceability of the indemnity agreement, and denied a stay of enforcement.

The court also deferred the HST refund issue for further clarification.

The defendant moved to set aside a default judgment obtained after she failed to attend the trial.

She explained her absence was due to generalized anxiety disorder, feeling overwhelmed after her lawyer removed himself from the record on the eve of trial, and a pre-trial judge's prediction that an adjournment would be denied or granted on onerous terms.

The court found her explanation reasonable, noting she moved promptly to set aside the judgment and presented an arguable defence based on an oral family agreement and part performance.

The motion to set aside the default judgment was granted.

The appellant tenant commenced an application for a declaration of a valid lease after the respondent landlord terminated the tenancy and took possession of the premises.

Three years later, the appellant moved to direct a trial of the issues and amend its pleadings to claim damages for wrongful termination and loss of inventory.

The motion judge dismissed the motion, finding the proposed amendments raised new causes of action that were statute-barred.

The Court of Appeal allowed the appeal, holding that the proposed damages claim was an alternative remedy arising from the same factual nexus originally pleaded in the application and supporting affidavit, and therefore did not constitute a new cause of action.

The debtor operated a marina on premises owned by the appellant landlord.

After a receivership order was made, the receiver continued to operate the debtor's business at that location until the lease expired.

The receiver changed the locks and restricted the landlord's access.

The landlord brought a motion for occupation rent, which the motion judge dismissed on the basis that the receiver's conduct did not amount to a deprivation of use.

On appeal, the Court of Appeal held that the motion judge erred by conflating deprivation of use in a real property sense with economic detriment.

The receiver took control of the premises to the exclusion of others, constituting occupation.

The appeal was allowed and the receiver was ordered to pay occupation rent.

The plaintiff insurers alleged a conspiracy to defraud by the defendants involving false medical assessment reports and invoices for statutory accident benefits claimants.

The moving defendants sought directions on producing medical documentation containing personal health information (PHI) of non-party claimants.

The court held that the claimants' consent in the Application for Accident Benefits (OCF-1) was broad enough to permit disclosure in civil litigation.

Furthermore, section 49(1) of the Personal Health Information Protection Act, 2004 (PHIPA) independently permitted the plaintiffs, as recipients, to use and disclose PHI for the action's purposes.

To address privacy concerns, the court directed that PHI be filed separately in a sealed envelope with the presiding judicial officer, not in the public court file.

The appellant, a second mortgagee on a matrimonial home, appealed a judgment denying its claim for additional funds and interest based on unregistered amending agreements.

The appellant argued its claim trumped that of an execution creditor.

The Court of Appeal dismissed the appeal, finding the appellant had previously admitted its security only applied to the registered principal amount and had taken an inconsistent position in a separate action.

The court also rejected the appellant's equitable mortgage argument and upheld the costs awards.

The moving party brought a motion to determine whether the appellant required leave to appeal an order dismissing a claim for occupation rent against a receiver.

The Court of Appeal held that the appellant had an automatic right of appeal under s. 193(c) of the Bankruptcy and Insolvency Act because the appeal directly involved property exceeding $10,000 in value.

The motion was dismissed, and the appeal was permitted to proceed without leave.

The plaintiff insurer brought an action against the defendants for fraud, fraudulent misrepresentation, unjust enrichment, and conspiracy, alleging an elaborate insurance fraud scheme involving fraudulent medical assessments.

The defendants moved to strike the conspiracy claim under Rule 21, arguing it was redundant and merged with the nominate torts based on the doctrine of merger.

The motion judge dismissed the motion, finding it was not plain and obvious that the conspiracy claim was redundant.

On appeal, the Divisional Court affirmed the decision, holding that the doctrine of merger should not be applied at the pleadings stage and should be left for the trial judge to determine on a full evidentiary record.

The moving party landlord brought a motion within a receivership proceeding seeking an order for the court-appointed receiver to pay $319,016 in occupation rent for the use of a marina.

The court examined whether the receiver's actions, such as changing locks and keeping assets on site, constituted occupation that deprived the landlord of use.

The court found that the receiver did not occupy the premises in the sense necessary to attract liability, noting that the landlord was given a key, found a new tenant, and insisted that third-party boats remain on site.

The motion was dismissed.

The moving party defendants sought leave to appeal an order dismissing their motion to strike the plaintiff insurer's conspiracy claim.

The defendants argued the conspiracy claim should be struck based on the doctrine of merger, as it was redundant to the tort of fraudulent misrepresentation.

The Divisional Court granted leave to appeal on the merger issue, finding that there were conflicting decisions on whether the doctrine of merger could be applied at the pleadings stage, satisfying the test under Rule 62.02(4)(a).