Jeffrey Wayne Kramer

The moving defendants sought an order declaring a 2001 commercial action deemed dismissed under Rule 48.15(6), or alternatively dismissed for delay under Rule 24.01.

The court held that, because a notice of intent to defend had been filed, the action was not effectively deemed dismissed as abandoned, following the existing interpretation of the transition provision for undefended actions.

On the delay motion, the court accepted that lengthy inactivity was plausibly explained by extended settlement efforts between the principal parties and found the moving defendants had not demonstrated actual prejudice or a substantial risk to a fair trial in what was largely a document-driven promissory note dispute.

The motion was dismissed, limitations issues were left for another day, and the court imposed an expedited timetable under the new Rule 48.14 framework.

The appellants obtained a default judgment against the respondent, an undischarged bankrupt, after successfully moving to lift a bankruptcy stay and striking his pleadings without providing him notice.

The respondent successfully moved to set aside the default judgment.

The appellants appealed, arguing the bankrupt lacked standing under the Bankruptcy and Insolvency Act to bring the motion to set aside and that he was not entitled to notice.

The Divisional Court dismissed the appeal, holding that the bankrupt had standing to defend an action involving claims of fraud that would survive bankruptcy, and that he was entitled to notice of the motion to strike under the Rules of Civil Procedure once the stay was lifted.

Following a successful oppression action involving breach of fiduciary duty, enforceability of a property management agreement, and corporate share ownership, the plaintiff sought substantial indemnity costs relying in part on a Rule 49 settlement offer.

The defendants argued success at trial was divided and that no costs or reduced costs should be awarded.

The court found the plaintiff achieved substantial success, particularly on the oppression and fiduciary breach issues, and had effectively beaten portions of the Rule 49 offer.

The court held that substantial indemnity costs were appropriate for certain issues after the offer date and partial indemnity for others.

Considering proportionality and the absence of a competing bill of costs from the defendant, the court fixed total costs at $145,000 inclusive.

The plaintiff and defendants were friends who entered into a real estate joint venture through a corporation.

The plaintiff provided the financing, while the defendants were to manage the property.

After one defendant defaulted and was removed, the remaining defendant, acting as sole director, breached his fiduciary duties by hiding corporate income, falsifying records, and paying himself exorbitant property management fees against the plaintiff's objections.

The court found the defendant's conduct oppressive, determined the parties' respective shareholdings based on funds advanced, ordered the repayment of excess management fees, and imposed a shotgun buy/sell mechanism to effect a corporate divorce.

In a wrongful dismissal action brought by a former general counsel, the plaintiff moved to set aside a sealing order previously obtained by the defendant without notice.

The defendant had sought the sealing order on the basis that the draft statement of claim disclosed confidential solicitor-client communications.

The parties later agreed that the sealing order should be set aside after the defendant acknowledged that similar allegations had already been made in other unsealed pleadings forming part of the public record.

The court found that the defendant ought not to have brought the original sealing motion given the existence of those pleadings.

Costs of the motion were awarded to the plaintiff on a partial indemnity basis.

The defendants brought a motion for summary judgment seeking dismissal of an action brought by the estate of a deceased investment advisor concerning alleged entitlement to the advisor’s book of client accounts.

The defendants argued that pursuant to the brokerage firm’s policy, client accounts belonged to the firm upon the advisor’s death and therefore the estate had no property interest or right to disclosure regarding their value.

The estate relied on the advisor’s employment contract stating that he owned his accounts during his lifetime and argued that ownership should pass to the estate absent an agreement to the contrary.

The court held that the evidentiary record was insufficient to determine whether the firm’s general policy applied to the advisor or how it interacted with the individualized employment contract.

Because the moving parties failed to demonstrate that there was no genuine issue requiring a trial, summary judgment was refused.

The appellant appealed a summary judgment dismissing his tort claim for negligent misrepresentation against the respondent.

The appellant had advanced mortgage funds on a property and alleged the respondent made a negligent representation regarding the property's consideration in a deed.

The Court of Appeal upheld the motion judge's finding that there was no genuine issue requiring a trial, as the evidence showed the appellant did not rely on the representation when deciding to advance the monies.

The appeal was dismissed.

The appellant vendor sold a property to the respondent purchaser, accepting two assigned mortgages as partial payment.

The appellant subsequently discovered the mortgaged properties were worth significantly less than the face value of the mortgages and sued for fraudulent misrepresentation.

The motion judge granted summary judgment to the respondents, finding no false representation.

The Court of Appeal allowed the appeal, holding that there was a genuine issue for trial as the record contained evidence from which a trial judge could infer that the respondents made false representations by words or conduct regarding the value of the mortgaged properties.

The appellants appealed a judgment, arguing that minutes of settlement foreclosed the complaints that were before Tarion.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the minutes of settlement did not foreclose the complaints.

The appellants, a bank and a payment processor, appealed a trial judgment finding them liable for improperly debiting the respondent merchant's bank account for MasterCard fines and credit card replacement costs.

The Court of Appeal dismissed the appeal, finding that the payment processor was not merely an agent of the bank and that the merchant agreements, which were contracts of adhesion, did not contain provisions making the merchant liable for the specific fines or replacement costs.

Furthermore, the bank failed to prove that the merchant's conduct caused the need to replace the credit cards.

The appellants appealed the imposition of two conditions on an order for the partition and sale of a commercial property, while the respondents cross-appealed seeking to reverse the order for sale.

The Divisional Court upheld the finding of co-ownership but set aside the condition requiring the prior payment of $1 million, finding that conflicting evidence regarding payment required a trial.

The court held that the sale could not proceed until the issues of payment and alleged oppression were resolved at trial.

Both the appeal and cross-appeal were allowed in part.

The appellants appealed an application judge's decision finding that the pylon sign in the engineering drawings accorded with the terms of the commercial lease.

The appellants argued the drawings showed a much larger footprint than the lease specified and placed the sign in a different location.

The Court of Appeal upheld the application judge's finding that the lease terms were imprecise and subject to change upon completion of engineering drawings.

The Court also upheld the decision to order a trial of an issue regarding the remedy of specific performance, despite it not being pleaded, as there was no prejudice to the appellants.

The appeal was dismissed.

The appellants appealed a decision of the motion judge granting partial summary judgment to the respondents.

The Court of Appeal found no error in the motion judge's decision and dismissed the appeal, awarding costs of $5,000 to the respondents.

The appellant appealed a motion judge's order dismissing a motion to set aside an ex parte order that struck the appellant's pleading for failing to answer undertakings given on discovery.

The Court of Appeal refused to admit fresh evidence and found no error in the motion judge's conclusion that the respondent had made full, fair, and frank disclosure on the ex parte motion.

The Court also rejected the appellant's argument that the undertakings had been answered, finding the provided answers unhelpful and unresponsive.

The appeal was dismissed with costs.

The appellant tenant terminated a commercial lease, arguing the landlord failed to complete the building in accordance with the schedule.

The trial judge found the tenant acted unreasonably and not in good faith by failing to consider other contractual options, such as completing the work itself and deducting the cost from rent.

The Court of Appeal upheld the liability finding but allowed the appeal on damages in part, reducing the damages award by the $50,000 it would have cost to complete the building.

The cross-appeal on damages was dismissed due to the landlord's failure to mitigate.

The appellants sought leave to appeal a judgment for costs.

The Court of Appeal found no error in principle to justify granting leave.

Leave to appeal was denied and the appeal was dismissed with costs fixed at $8,500.

The appellant appealed a motions judge's decision finding a concluded settlement between the parties for $12,000.

The Court of Appeal upheld the finding of a settlement, noting that correspondence confirmed the agreement and the appellant's former counsel conceded the amount.

However, the Court varied the order to direct that the $12,000 settlement amount, plus accrued interest, be paid to the appellant out of money held in court.

The respondent's cross-appeal for costs of the motion was dismissed, and no costs were awarded for the appeal.