Jason R. Cherniak

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant, Assignment Credit Corp., was ordered to pay costs to several respondents (MCAP Financial Corporation, Dorr Capital Corporation, and Cherniak Law Professional Corporation).

The court rejected the appellant's argument that prior costs agreements should stand, as they were made before the appellant's non-disclosure of a material fact (that the Mesbur Judgment was obtained on consent) was revealed.

This non-disclosure, which impacted the second issue of the appeal, justified an elevated costs award on a solicitor-client basis for the affected respondents.

The 167 respondents were denied costs due to their own failure to disclose the consent judgment and their underlying financial obligations.

This appeal concerned the priority of various creditors in a garnishment hearing involving payments owed by the City of St. Catharines and Region of Niagara to 1671379 Ontario Inc. under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, holding a perfected General Security Agreement (GSA), and Assignment Credit Corp. (ACC), asserting priority based on an assigned consent judgment (Mesbur Judgment).

The Court of Appeal affirmed the motion judge's finding that MCAP's perfected GSA had priority for its shortfall judgment over ACC's claim, finding no inconsistency in MCAP's position.

However, the court remitted the issue of priorities among ACC and other unsecured judgment creditors to the motion judge, as it was revealed post-hearing that the Mesbur Judgment was a consent judgment, a fact not disclosed to the motion judge or other creditors, raising new legal arguments regarding the Personal Property Security Act and the Assignments and Preferences Act.

Novelcare Heating & Cooling brought a claim for lien against Erica Herbert and others for the installation of air conditioning units.

Herbert denied the claim and counterclaimed for damages.

The court found Novelcare breached the contract by failing to complete the work (connecting drains and commissioning units) but did not fundamentally repudiate it.

Herbert failed to prove alleged deficiencies in the installed units.

The court awarded Novelcare the unpaid balance of the contract price, reduced by damages for the incomplete work and a discounted value for the lost warranty, resulting in a lien and damages of $16,085.53 for Novelcare.

This decision addresses the defendants' requests for damages and full indemnity costs following the dismissal of the plaintiff's defamation actions under anti-SLAPP provisions (s. 137.1 of the Courts of Justice Act).

The court dismissed the damages claim, finding no bad faith or improper purpose by the plaintiff, and that alleged harm was not directly caused by the proceedings.

However, the court awarded full indemnity costs to the defendants, Matthew Bergman ($50,000) and Gregory Swain ($11,690.56), as statutorily presumed.

The plaintiff, a municipal councillor, brought two defamation actions against several defendants regarding statements made on social media and at a town council meeting.

The defendants moved to dismiss the actions under the anti-SLAPP provisions of the Courts of Justice Act (s. 137.1).

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

The plaintiff failed to satisfy the merits-based hurdle, as the defendants had valid defences of justification, fair comment, and qualified privilege.

Furthermore, the plaintiff failed the public interest hurdle, as she could not demonstrate that the harm she suffered outweighed the public interest in protecting the defendants' expressions.

Both actions were dismissed.

Various creditors of 1671379 Ontario Inc. and Manuel Elkind brought motions to determine priority status for garnishment payments owed by the City of St. Catharines and Region of Niagara under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, which held a registered and perfected security interest under the Personal Property Security Act (PPSA), and Assignment Credit Corp. (ACC), which claimed priority based on an assignment of a prior judgment.

The court found that MCAP's security interest, including the proceeds of the BTIG, maintained its priority status despite being reduced to a shortfall judgment.

The court dismissed ACC's claim for priority, finding that its assigned interest was subject to MCAP's prior perfected security and that ACC's claim should be limited to $400,000 as per a "Side Deal" in a previous endorsement.

The plaintiff entered into an agreement to purchase a newly built home from the defendant.

After discovering the home would not have a garage door access as expected, the plaintiff sent an angry email threatening litigation.

The defendant treated this as an anticipatory breach, refused to close the transaction, and sold the property to a related charity.

The court found that the plaintiff's email was an idle threat and did not amount to repudiation or a breach of the duty of good faith.

The defendant's refusal to close constituted a repudiation of the contract.

The plaintiff was awarded damages assessed as of the date of breach.

The moving parties sought leave to appeal a decision regarding the use of residential premises for short-term rentals.

The Divisional Court dismissed the motion for leave to appeal with costs.

The court declined to provide substantive reasons, noting the common appellate practice of not giving reasons on motions for leave to appeal and the potential for further administrative proceedings on the underlying issue.

The applicant sought to clarify that an outstanding judgment of $63,538.56, arising from a global settlement in a divorce proceeding, constituted lump sum spousal support, thereby surviving the respondent's assignment in personal bankruptcy.

The respondent sought to terminate garnishment proceedings, asserting the debt was an equalization payment extinguished by bankruptcy.

The court found the outstanding amount to be lump sum spousal support, citing the applicant's entitlement to support in a lengthy marriage, the settlement's intent, the respondent's non-disclosure regarding mortgage refinancing, and the protective intent of bankruptcy legislation for support obligations.

The court dismissed the respondent's attempt to challenge the consent judgment and awarded costs to the applicant.

The applicant sought an order to relocate an existing access easement over its property, which was owned by the respondent, to enable a larger commercial development.

The respondent opposed the relocation.

The court examined the statutory provisions for modifying or discharging conditions or covenants annexed to land under the Conveyancing and Law of Property Act and the Land Titles Act.

It emphasized the narrow judicial discretion to intervene, particularly when the servient owner demonstrates any prejudice.

The court found that the proposed relocation would cause potential prejudice to the respondent due to increased traffic congestion from parking on both sides of the easement and potential adverse impacts on its mortgage financing.

Consequently, the application to relocate the easement was dismissed.

This ruling addresses costs and procedural issues following a prior decision that directed a trial due to inconsistent evidence, rather than granting summary judgment on an application.

The court ordered the matter transferred to the Small Claims Court, as agreed by the parties.

The court declined to make its previous factual findings binding on the trial judge or to issue an order regarding adverse inferences for a missing witness.

Costs were awarded to the respondents, as the applicants were found responsible for initiating the proceedings in the Superior Court via an application, which was deemed an incorrect format given the material factual disputes.

The applicants sought declarations regarding real estate commission entitlement and breach of fiduciary duty by their agent, Amir Mizrahi and Bridlepath and Progressive Real Estate Inc., arising from a property sale.

The core dispute involved whether a verbal agreement for a reduced commission of 2.75% in a dual agency scenario superseded the written listing agreement's 4.0% commission.

The court found significant factual inconsistencies in the evidence, particularly concerning the parties' contractual intentions, Mizrahi's knowledge of the applicants' understanding, and the nature of the agency relationship.

Consequently, the court determined that the issues could not be resolved on an application and ordered that the matter proceed to trial, allowing for viva voce testimony and a full assessment of credibility.

The moving party sought leave to appeal a decision of the Ontario Municipal Board (OMB) Chair dismissing their Request for Review of a Hearing Officer's decision.

The Hearing Officer had approved an Official Plan amendment allowing residential development on lands, parts of which were designated as a cultural heritage landscape.

The moving party argued the OMB erred by not giving deference to the factual findings of the Conservation Review Board (CRB) regarding the extent of the heritage landscape, raising issue estoppel and abuse of process.

The Divisional Court dismissed the motion for leave, finding no question of law, no good reason to doubt the correctness of the OMB decision, and that the matter was not of sufficient general importance.

The court determined costs arising from competing family law motions involving a request to strike pleadings and a motion to amend an answer.

The respondent obtained an adjournment of the applicant’s motion and leave to amend the answer, while the applicant successfully limited the proposed amendments and resisted a request for questioning.

Applying Rule 24 of the Family Law Rules, the court found that success was divided and that both parties had behaved unreasonably in aspects of the litigation.

The applicant had commenced a motion prematurely and before an agreed hearing date, while the respondent delayed bringing a motion to amend despite earlier leave to do so.

In light of the divided success and unreasonable conduct on both sides, the court declined to award costs to either party.

The plaintiff sought an order setting aside two certificates of pending litigation registered against title to residential property in Vaughan to allow completion of a pending sale.

The court found that the certificates had been obtained on the basis of affidavit evidence that was misleading and false in material respects, including failure to disclose that the registered owner had died.

The court held that the plaintiff should not benefit from such misrepresentations but permitted the certificates to be vacated only on strict conditions.

The plaintiff was required to pay into court an amount representing the difference between the sale proceeds and the court‑determined fair market value of the property, less specified deductions.

If the payment was not made, the certificates would remain and the court would consider appointing a receiver.