Jeremy K. Sacks

Following an appeal regarding reduced security under the Construction Lien Act, the court issued a costs endorsement.

The appellant was awarded $7,000 in partial indemnity costs for a successful stay motion.

The respondent, having been successful on the main appeal, was awarded $15,000 in partial indemnity costs.

Following a successful appeal that reduced the plaintiff's damages award in a construction lien trial, the court considered written submissions on the costs awarded by the Master.

The Master had originally awarded the plaintiff $485,000 in costs based on an erroneous application of Rule 49.

The court found that the plaintiff's second offer to settle implicitly withdrew its first offer, and since the reduced damages award was less than the second offer, Rule 49 did not apply.

The court reduced the Master's costs award to $236,500 on a partial indemnity scale to reflect proportionality and the reduced damages award.

The appellant contractor appealed a motion judge's order vacating its construction lien upon the respondent owner posting security in an amount significantly less than the lien claim.

The appellant argued the motion judge erred by resolving complex factual issues regarding unapproved change orders and an extended duration claim on a summary motion under s. 44(2) of the Construction Lien Act.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the law by reducing security only where the evidence failed to establish a reasonable basis for the amounts claimed, though it varied the order to correct a conceded mathematical error.

The appellants retained Birkshire Group Inc. to perform home renovation work.

After the relationship deteriorated, Birkshire registered a construction lien and sued for the balance owing.

The appellants counterclaimed and sued other respondents.

At trial, the judge awarded Birkshire damages and recognized a lien.

The appellants appealed, arguing the trial judge failed to address evidence from two witnesses called after the close of evidence.

The trial judge had determined this evidence was material to credibility issues but made no reference to it in his reasons.

The Court of Appeal found the trial judge's reasons deficient and allowed the appeal, ordering a new trial.

The Plaintiff, a numbered corporation, sought summary judgment for HST payment on a property sale to the Defendant, Lucia Pessoa Park, amounting to $364,000.

The Defendant brought a cross-motion for summary judgment regarding municipal development fees owed by the Plaintiff.

The court dismissed the Plaintiff's claim for HST, finding the sale was exempt as a used residential unit under the Excise Tax Act, and that even if HST were payable, the Plaintiff was deemed to have collected it due to a statutory declaration.

The court granted the Defendant's cross-motion for development fees, which the Plaintiff had conceded.

The appellant brought a motion to stay an order that permitted the respondent to vacate a construction lien by posting security for only half the claimed amount, pending an appeal.

The respondent argued the order was interlocutory and unappealable under the Construction Lien Act.

The Divisional Court held that an order reducing security for a lien is a final order because it alters the substantive rights of the lien claimant.

Applying the RJR-MacDonald test, the court found a serious issue to be tried, irreparable harm due to the loss of security, and that the balance of convenience favoured the appellant.

The motion for a stay was granted.

The Monitor in a CCAA proceeding brought a motion to disallow a $2.3 million secured claim filed by a creditor.

The Monitor argued the secured guarantee given by the insolvent debtor was a transfer at undervalue under s. 96 of the BIA or a fraudulent conveyance.

The court dismissed the motion, finding that the debtor and creditor were operating at arm's length and that the Monitor failed to prove the debtor granted the guarantee with the intent to defraud, defeat, or delay creditors.

The defendants brought a motion to oppose the confirmation of a Master's report following a 29-day trial on a construction lien reference.

The Master had awarded the plaintiff $243,325.20 plus costs and elevated pre-judgment interest, largely based on adverse credibility findings against the defendants.

The Superior Court found that the Master made a palpable and overriding error by misreading the date on a key invoice, which tainted his credibility assessment and led to an erroneous $72,000 award for 'extra' design work.

The court deducted the $72,000 from the judgment and reduced the pre-judgment interest to the statutory rate, but upheld the Master's findings on commissions for builder upgrades, price reductions, and post-termination items.

The defendants were awarded $19,000 in costs for the motion.

The moving party, a condominium corporation, sought an order under s. 44(2) of the Construction Lien Act to vacate a construction lien registered by the respondent contractor upon posting security in an amount significantly less than the $2,744,377 claimed.

The dispute arose from a fixed-price contract for condominium renovations where the scope of work expanded, leading to unapproved change orders and an extended duration claim.

The court reviewed the evidence and found that while many factual disputes required a trial, certain portions of the lien claim, including specific unapproved change orders and most of the extended duration claim, lacked a proper evidentiary foundation.

The court ordered the lien vacated upon the posting of security reduced by $1,181,833.79 plus HST, along with $50,000 for costs.

The applicant and respondent, corporate entities controlled by a son and father respectively, jointly owned a commercial property.

The applicant sought an order for the sale of the property under the Partition Act, which the respondent opposed, citing malicious conduct and a contractual right of first refusal.

The respondent also claimed unpaid rental income.

The court held that the applicant had a prima facie right to sell the property and had not acted maliciously, but was bound by the right of first refusal.

The court ordered that the applicant's prior offer to sell its interest to the respondent remain open for an additional 60 days, after which the property could be sold on the open market if no agreement was reached.

The court also ordered the applicant to pay the respondent its share of outstanding rental payments.

The lien claimants appealed a decision declaring that the respondent's mortgage had priority over their construction liens.

The respondent challenged the Divisional Court's jurisdiction, arguing the priority decision was not a 'judgment' under the Construction Lien Act.

The court held it had jurisdiction because the priority decision was a final order.

On the merits, the court upheld the motions judge's factual finding that the mortgage funds were advanced to the owner as a joint borrower, rather than merely serving as collateral security, thereby giving the mortgage priority under section 78(6) of the Act.

The appeal was dismissed.

The appellant registered a claim for lien against condominium units owned by the respondent for work supplied to the developer.

The Master discharged the lien and certificate of action, finding the respondent was not an 'owner' under the Construction Lien Act and the appellant failed to properly preserve and perfect the lien by not naming the respondent.

The Divisional Court dismissed the appeal, upholding the Master's findings that the appellant had no valid lien rights against the respondent's units and affirming the Master's award of substantial indemnity costs due to the appellant's conduct.

The moving parties, four lien claimants, brought a motion for an extension of time to appeal an order determining that a mortgage had priority over their claims.

The delay in filing was short and caused by counsel's confusion over whether the appeal lay to the Court of Appeal or the Divisional Court.

The court found a bona fide intention to appeal, minimal prejudice to the respondent, and a live issue on the merits.

The motion was granted and the respondent was ordered to pay costs.

In a priority dispute under the Construction Lien Act, the court determined the relative priorities of several mortgagees and construction lien claimants.

The court held that professional fees incurred by a first mortgagee to protect its security constituted an 'advance' under section 78(6) of the Act, granting it priority.

The court also found that a $10 million advance made jointly to two borrowers under a second mortgage was an advance in respect of that mortgage, giving it priority over the lien claimants.

However, the court ruled that an advance made under a loan agreement to a third party was not an advance in respect of a collateral mortgage given by the developer as guarantor, meaning the lien claimants had priority over the collateral mortgage.

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 brought a motion to vary an order of a single judge that lifted a stay because the moving party failed to provide credible proof of financing without conditions.

The Divisional Court dismissed the motion, finding no error of law or palpable and overriding error of fact in the single judge's decision.

The court also held that the moving party could not seek to vary an earlier order after having accepted it and failed to comply with its conditions.

Costs of $500 were awarded to the responding party.

The plaintiff brought a motion to amend its statement of claim to add a new defendant and assert claims for declaratory relief and unjust enrichment relating to alleged transfers of sale proceeds from a property transaction.

The proposed amendments alleged fraudulent conveyance and preferential payments to a shareholder of the defendant corporation.

The court held that the proposed pleading lacked the necessary material facts to support allegations of fraud, conspiracy, interference with economic relations, and unjust enrichment, and was internally inconsistent and deficient under the Rules of Civil Procedure.

The court further found the pleading failed to provide proper particulars and did not establish a tenable cause of action against the proposed defendant.

The motion to add the party and amend the pleading was therefore refused.

The plaintiff landlord sued the defendant mutual fund dealers for inducing breach of contract, intentional interference with economic relations, and unjust enrichment after the defendants acquired the book of business of the plaintiff's tenant, who subsequently defaulted on its lease and went bankrupt.

The defendants brought a motion for summary judgment to dismiss the action.

The court granted the motion, finding that the defendants did not intend to procure a breach of the lease, did not engage in unlawful conduct targeting the plaintiff, and that the bankruptcy process provided a juristic reason for any enrichment.

The action was dismissed with costs awarded to the defendants on a partial indemnity scale.

Former employees and related parties moved for summary judgment dismissing a counterclaim alleging confidentiality breaches, fiduciary breaches, contractual breaches, inducement of breach, client solicitation, and misuse of confidential business information after the employees left to work for a competitor.

Applying the modern Rule 20 framework, the court held the record did not permit fair and just adjudication of most issues because key facts were disputed, credibility was engaged, and the claim and counterclaim substantially overlapped.

Partial summary judgment was nevertheless granted dismissing the fiduciary duty claim against the receptionist and apprentice hairstylist, as the record disclosed no basis on which either occupied a fiduciary position.

The balance of the action and counterclaim was ordered to proceed to trial, with motion costs left to the trial judge.