Jeffrey Radnoff

The applicant, the Corporation of the Town of Saugeen Shores, sought a declaration that a dispute with its lessee over construction delays was not arbitrable and must be litigated.

The lessee argued that the dispute, which involved a force majeure clause, should be resolved by arbitration and that the arbitrator should decide jurisdiction at first instance based on the competence-competence principle.

The court dismissed the application, holding that the issue of arbitrability raised questions of mixed fact and law that required more than superficial consideration of the documentary evidence, and therefore must first be determined by an arbitrator.

The appellant tenant appealed the dismissal of its application to restrain the respondent landlord from terminating its commercial lease.

The landlord relied on a 30-day termination clause from a 1998 amending agreement.

The tenant argued that subsequent amending agreements, which included a six-month termination clause conditional on redevelopment, indicated the 30-day clause was confined to the 1998 extension term.

The Court of Appeal found the application judge erred by failing to address this key argument regarding contractual interpretation.

The appeal was allowed and the matter remitted for a new hearing.

The appellants, trustees of an estate and related corporations, appealed and sought to set aside an arbitral award granting the respondent $275,000 as an oppression remedy and ordering occupation rent.

The respondent, a 94-year-old widow, had been pushed out of the family business by her late husband and the trustees.

The court dismissed the application to set aside the award, finding no breach of natural justice or procedural fairness under s. 46 of the Arbitration Act.

The court also dismissed the appeal, holding that the arbitrator made no palpable and overriding error in finding oppression and that the equitable remedy awarded was entitled to significant deference.

The moving parties brought a motion to transfer part of an appeal to the Divisional Court, extend the time to perfect the appeal, and stay the trial judgment pending appeal.

The underlying dispute involved three brothers and a jointly owned residential investment property, resulting in a trial judgment that dismissed a breach of contract claim and ordered partition and sale.

The Court of Appeal dismissed the motion to transfer, opting to combine the appeals under section 6(2) of the Courts of Justice Act to avoid inconsistent results.

The court granted the extension of time to perfect the appeal and granted a stay of the partition and sale order pending appeal, finding serious issues to be tried and a risk of irreparable harm.

The moving party, a church, sought an injunction restraining the termination of its commercial lease by the landlord pending its appeal of a decision validating a 30-day notice of termination.

The Court of Appeal granted the injunction, finding that the interpretation of conflicting lease amendments raised a serious issue to be tried, the church would suffer irreparable harm due to its extensive charitable operations and the risk of the appeal becoming moot, and the balance of convenience favoured the church as it continued to pay rent.

This is a costs endorsement following the dismissal of an application to enforce an oral agreement and the granting of an application for partition and sale of property.

The successful parties (Bruno Rosso, Nancy Rosso, and Salvatore Rosso) sought costs awards.

The court awarded costs on a substantial indemnity scale to Bruno and Nancy, and on a partial indemnity scale to Salvatore.

The court considered factors including the complete success of the parties, the complexity of the issues, the proportionality of costs to the property value, the reasonableness of counsel fees and time spent, and the conduct of the unsuccessful party during litigation.

The applicant-tenant sought to invalidate a Notice of Termination issued by the respondent-landlord.

The landlord relied on a 30-day termination clause that had been added to the commercial lease in 1997 and modified in 1998.

The tenant argued the clause did not apply to the current lease and relied on principles of commercial lease interpretation.

The court dismissed the application, finding that the termination clause was clear, unambiguous, and had never been expressly removed in subsequent lease extensions.

Furthermore, the tenant had signed an estoppel certificate acknowledging the lease documents containing the termination right.

The court considered two competing applications between brothers who jointly owned a triplex property.

Domenic Rosso sought to enforce an alleged oral agreement for the purchase of Bruno Rosso’s one-third interest in the property, while Bruno Rosso sought partition and sale of the property.

The court found that there was no enforceable oral contract due to lack of agreement on essential terms, and that even if there had been, it would have been unenforceable under the Statute of Frauds and not saved by part performance.

The court granted Bruno’s application for partition and sale, and ordered an accounting.

The plaintiff, Stefano G. Tripodi, brought an action against Susglobal Energy Corp., its CEO Marc Hazout, and affiliated entities, claiming damages for negligent misrepresentation and oppression regarding his investments in the company's shares.

The defendants filed a counterclaim seeking damages for abuse of process, alleging the litigation was used to cause reputational harm and exert settlement pressure.

The court found that the parties were friends and peers, and that Hazout did not owe a fiduciary duty to Tripodi, nor did he make actionable misrepresentations.

Ultimately, the Ontario Superior Court of Justice dismissed both the plaintiff's action and the defendants' counterclaim.

The moving party brought a motion for leave to appeal a Superior Court of Justice decision dated June 24, 2024.

The Divisional Court dismissed the motion for leave to appeal without costs.

The applicant, Marian Elizabeth Breukelman, sought costs on a partial indemnity basis after successfully defending a motion by the respondent, Dario Antonio Miret, to remove her lawyers for an alleged conflict of interest.

The court, M.D. Faieta J., assessed the costs considering factors such as the applicant's success, the complexity and importance of the issues, the respondent's failure to make an offer to settle, and the reasonableness of the time claimed by multiple counsel.

The court found the motion complex and important, and that the respondent failed to meet his obligation to settle.

While acknowledging the use of multiple counsel, the court found the total time claimed excessive and adjusted the costs downward.

The respondent husband brought a motion to disqualify the applicant wife's counsel (Tanya Road) and her sister's counsel (Rahul Shastri) in family law and related civil proceedings.

The motion was based on the fact that the respondent's former legal assistant, Olivia Valente, had subsequently been employed by Ms. Road.

The court applied a flexible, case-specific approach to the MacDonald Estate test for non-legal staff, finding that Ms. Valente's role at the former firm was purely administrative and that effective ethical screens were implemented at Ms. Road's firm.

The court concluded that a reasonably informed person would be satisfied that no confidential information would be used to the prejudice of the respondent and dismissed the motion.

The appellant, Liquid Capital Exchange Corp., was defrauded in a factoring business scheme by WF Canada Ltd.'s principals.

Liquid Capital sued Frank Zito, an Enbridge Gas Distribution Inc. employee, alleging his participation in the fraud, and sought to hold Enbridge vicariously liable.

The trial judge dismissed the action, finding Liquid Capital had not proven Zito's involvement and, even if he was involved, Enbridge would not be vicariously liable.

On appeal, the Court of Appeal for Ontario upheld the trial judge's findings, concluding there was no reversible error in refusing to find Zito liable and no error in the costs award.

The appeal was dismissed, and leave to appeal costs was denied.

The appellants appealed a motion judge's order that set aside a solicitor's account assessment order as statute-barred and ordered payment of outstanding fees.

The Court of Appeal upheld the motion judge's finding that all accounts were final and that the first 29 paid accounts were statute-barred.

However, the Court found legal errors in the motion judge's analysis regarding the last three unpaid accounts.

It clarified that special circumstances are not required for assessment of unpaid accounts sought between one and 12 months after delivery, and that Section 3(a) of the Solicitors Act applies to accounts not yet delivered at the time of requisition, thus having no limitation period.

The appeal was allowed in part, referring the last three accounts for assessment.

Following a three-day trial in which the defendant was wholly successful in defending a solicitor negligence action arising from an alleged wrongful dismissal, the defendant sought costs on a partial indemnity basis.

The plaintiff argued for a lower amount based on their own trial costs and a prior security for costs order.

The court considered the factors under Rule 57.01, noting the importance of the issues to the defendant's professional reputation and the complexity of the taxation issues involved.

The court awarded the defendant costs in the requested amount of $51,299.61 all-inclusive, finding it reasonable and proportional.

The plaintiff, Liquid Capital Exchange Corp., sought damages for fraud against multiple defendants, including two individuals (Cook and Daoust) who created false invoices, and an Enbridge employee (Zito) and Enbridge Gas Distribution Inc., alleging their involvement or vicarious liability.

The court found that Liquid Capital failed to prove Mr. Zito's participation in the fraud on a balance of probabilities, noting the plaintiff's significant lack of due diligence due to an misplaced trust in one of the fraudsters.

The court also determined that even if Mr. Zito had been involved, Enbridge would not be vicariously liable as Mr. Zito acted outside the scope of his employment and lacked the authority to approve such contracts or invoices.

The action against the defendants was dismissed.

The plaintiff, a CPA, sued his former lawyer for breach of contract and solicitor negligence, alleging improper advice regarding tax liability on a forgiven employment loan.

The plaintiff claimed the lawyer failed to advise him that he would be responsible for taxes on a $125,000 loan forgiveness from his former employer, Gemstar, and that Gemstar had agreed to pay these taxes.

The defendant lawyer asserted he advised the plaintiff that the documents did not obligate Gemstar to pay taxes and that the plaintiff, as a CPA, was aware of the tax implications of loan forgiveness.

The court found the plaintiff's evidence unreliable and preferred the defendant's, concluding that Gemstar never agreed to pay the taxes and that the lawyer provided correct advice regarding the loan forgiveness extinguishing the debt.

The court dismissed the action, finding no breach of the standard of care or compensable damages, and no loss of a real chance to sue Gemstar or negotiate a better deal.

The respondent law firm moved to set aside an assessment order obtained by the applicants, arguing it was statute-barred, and sought payment of outstanding legal fees.

The applicants cross-moved for an assessment of all 32 accounts rendered over a four-and-a-half-year retainer.

The central issue was whether the accounts were "interim" or "final" for the purpose of limitation periods under the Solicitors Act.

The court found that the accounts were final, based on the parties' intention, regular payment without complaint, and the nature of the billing.

The court concluded that the assessment order was statute-barred and ordered the applicants to pay the outstanding legal fees.

The applicant, Marion Breukelman, sought to consolidate two civil proceedings (a civil action and an employment action) into her ongoing family law application.

The court granted the motion for consolidation, finding that the proceedings shared common questions of fact and law, particularly regarding the beneficial ownership of shares in a family business (R. Avis Surveying Inc.).

The court emphasized that consolidation would promote judicial efficiency, save legal expenses for the parties, and, most importantly, avoid the risk of inconsistent judgments across the related proceedings.

Despite concerns raised by the respondent and other parties about inconvenience, the court determined that the balance of convenience favoured consolidation, noting that the Family Law Rules provide tools for efficient case management.

The moving parties brought a motion for leave to appeal an order of Osborne J. dated January 19, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondent.