Jeffrey A.L. Kriwetz

The plaintiffs, owners of twelve residential homes, leased their properties to the defendant based on his fraudulent representation that he would occupy them as single-family residences.

Instead, the defendant converted the homes into illegal rooming houses and rented them to numerous occupants.

The plaintiffs sought an ex parte injunction to evict the occupants.

The court held that while the Landlord and Tenant Board generally has exclusive jurisdiction over residential evictions, the Superior Court has jurisdiction under section 440 of the Municipal Act to grant an injunction to a taxpayer to restrain the contravention of municipal zoning by-laws.

The court ordered the occupants and the defendant to comply with all municipal notices and zoning by-laws requiring the properties to be returned to single-family residences.

The plaintiff advanced significant sums to the defendant and his company over several years, documented by promissory notes.

The trial judge found the advances were demand loans, not investments, and held the defendant and his company liable for fraudulent activities, while dismissing the defendant's slander action.

On appeal, the Court of Appeal held that the trial judge erred in his interpretation of the limitation period, finding that the earliest loans from 2000 and 2001 were statute-barred under the former six-year limitation period and could not be revived by later partial payments.

The appeal was allowed in part to reduce the damage award accordingly, but dismissed on all other grounds, including the cross-appeal.

The plaintiff, Caruk-Hall Construction Inc. (CH), moved to stay its action and the defendants' counterclaim pending a Tarion regulatory proceeding, or alternatively, to stay or strike paragraphs related to CH's alleged failure to enroll the project under the Ontario New Home Warranties Plan Act (ONHWPA).

The defendants opposed.

The court found a substantial overlap of issues regarding CH's "builder" status and ONHWPA enrollment between the civil action and the Tarion proceeding.

While acknowledging the penal nature of the Tarion charges and potential self-incrimination for CH's principals, the court determined that existing protections (implied undertaking rule, sealing orders) were sufficient.

The court rejected a full stay, noting the Construction Act's mandate for summary lien actions and the lack of evidence for double recovery.

Ultimately, the court granted a limited stay of only the "Overlapping Paragraphs" in the defendants' pleading that directly concerned CH's builder status and ONHWPA enrollment, finding the OCJ to be the more appropriate forum for these specific issues.

This endorsement addresses costs for two intertwined actions.

The court determined costs following a substantial judgment in favour of the plaintiff in a main action and a successful defence against a slander action.

Substantial indemnity costs were awarded against the defendants in the main action due to fraudulent conduct and the inappropriate use of a secondary action as a "gag and chill" defence.

Costs were also awarded for the successful defence of the slander action, with a partial indemnity award granted to one defendant for their successful defence in the main action.

This trial involved two consolidated actions: a debt action (C-705-17) by Alexander Michel against Franz Kramer, Gunther Kramer, and Spirit Financial Inc. for over $2 million in loans, and a slander action (C-728-15) by Franz Kramer, Christa Schmidt, and Gunther Kramer against Alexander Michel.

The court found a debtor/creditor relationship between Kramer and Michel, concluding that Michel's advances were personal demand loans with 6% interest.

The court rejected Kramer's claims of investment and found his explanations for losses to be fraudulent, attributing a disproportionate share of losses to Michel.

Judgment was granted against Franz Kramer and Spirit Financial Inc. for the outstanding loan amounts.

The debt action against Gunther Kramer was dismissed.

The slander action against Michel was also dismissed due to a lack of credible evidence linking Michel to the alleged harassment and threats, with the court finding it to be a tactic to thwart Michel's legitimate debt claim.

The plaintiff manufacturer sued the defendant metal processing company for the unpaid balance and extras on a contract for a custom Tension Leveling & Cut-To-Length Line.

The defendant counterclaimed for lost profits, alleging the machine failed to produce flat, memory-free sheets and could not process heavy gauge coils.

The court found that the defendant breached the contract by prematurely terminating the final acceptance testing, which was a condition precedent, thereby denying the plaintiff the opportunity to remedy any defects.

The plaintiff was awarded the contract balance and partial payment for extras, and the counterclaim was dismissed.

Following a successful trial where the plaintiff obtained judgment for the full amount claimed, the plaintiff sought costs on a partial indemnity scale up to the date of its offer to settle, and on a substantial indemnity scale thereafter pursuant to Rule 49.10(1).

The defendant argued the claimed costs were excessive and disproportionate.

The court found the time expended was not excessive given the procedural history, including summary judgment motions, but reduced the senior counsel's hourly rate.

Costs were fixed at $60,291.35 inclusive of fees, disbursements, and HST.

The defendant landlord moved for summary judgment to dismiss the plaintiff tenant's action for damages resulting from roof leaks and a non-operational gas line.

The court examined the commercial lease, which included "as is" clauses, a covenant for the tenant to obtain all-risk and business interruption insurance, and a waiver of liability.

The court found that the lease terms effectively allocated the risk of such losses to the tenant, regardless of the landlord's repair efforts or the tenant's failure to obtain the required insurance.

The distinction between business delay and business interruption was deemed immaterial.

The motion for summary judgment was granted, and the action was dismissed.

Conterra Restoration Ltd. (Conterra) claimed $109,451.35 from Irving Moishe Kirsch (Kirsch) for additional concrete work and waterproofing performed on his property.

Kirsch argued that these additional works required written change orders under their contract.

The court found that the contract was not a fixed-price agreement and that the additional concrete work fell within the scope of work priced on a per-unit basis, thus not requiring a written change order.

While the waterproofing work was outside the original contract scope, the court found that Kirsch had orally authorized it.

The court also held that Kirsch's oral approvals constituted a waiver by conduct of any strict contractual requirement for written change orders.

Consequently, Kirsch was found liable to Conterra for the claimed amount.

Kirsch's third-party claim against Pancon Engineering Ltd. for contribution and indemnity was dismissed.

The plaintiff contractor brought a motion for summary judgment against the defendant property owner for unpaid invoices relating to balcony restoration work.

The defendant opposed the motion and brought a motion for summary judgment against the third-party engineer for contribution and indemnity, while the engineer sought summary judgment dismissing the third-party claim.

The court dismissed all motions, finding that conflicting evidence regarding whether the additional work and waterproofing were authorized created a genuine issue requiring a trial that could not be resolved without viva voce evidence and credibility findings.

The plaintiff claimed over $80,000 in business losses, alleging the defendant severed its telephone lines while filling a trench with concrete in a shared commercial building.

The court completely rejected the evidence of the plaintiff's owner due to numerous inconsistencies, suspect documentation, and a demonstrated pattern of guessing.

The court found no evidence that the plaintiff's telephone lines ran under the defendant's unit or that the defendant caused the disruption.

The action was dismissed.

The plaintiff, an Ontario resident, brought an action in Ontario alleging a conspiracy by the defendants to use fraudulent bankruptcy proceedings in Quebec to defeat the process of the Ontario courts.

The defendants moved to dismiss or stay the action on jurisdictional grounds, and the trustee in bankruptcy moved for a stay because the plaintiff failed to obtain leave under s. 215 of the Bankruptcy and Insolvency Act.

The Court of Appeal upheld the motion judge's finding that Ontario had jurisdiction simpliciter and was not forum non conveniens.

However, the Court allowed the trustee's appeal in part, holding that the action against the trustee must be stayed until the plaintiff obtains leave from the Quebec Superior Court.

The appellants appealed an order striking their claim for equitable set-off.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that there was no basis on the pleading for the claim to succeed, as it was made in respect of the actions of a corporate non-party not alleged to be wholly owned by the respondent.