Jason R. Cherniak

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The core dispute involved whether a verbal agreement for a reduced commission of 2.75% in a dual agency scenario superseded the written listing agreement's 4.0% commission.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