Joel E. Levitt

The Court of Appeal for Ontario dismissed the appeal by the defendants, Danping Wang (also known as Linda Wang) and Shi Gang Ni (also known as Simon Ni), from a judgment awarding $555,000 to the respondent, Jamshid Nayyer, for breach of contract.

The trial judge found that the parties had a valid oral agreement entitling the respondent to a 20% interest in certain properties, which was later exchanged for a full interest in a condominium.

The trial judge’s findings on credibility and the evidence were upheld, and the appeal was dismissed with costs.

This is an appeal from a trial judgment that awarded the respondent $600,000 in damages and set aside the transfer of the appellants’ matrimonial home as a fraudulent conveyance.

The trial judge found that one appellant failed to return funds obtained from the respondent for a joint venture that never materialized and subsequently fraudulently conveyed the matrimonial home to his wife for nominal consideration to avoid a breach of trust claim.

The appellants challenged the trial judge's findings of fact regarding the amount owed, fraudulent intent, and the wife's payment of good consideration.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings, including the presence of multiple badges of fraud.

This endorsement addresses costs following a prior decision where the plaintiff, Jamshid Nayyer, was awarded damages against the defendant, Linda Wang.

Nayyer sought substantial indemnity costs against Wang.

The co-defendant, Simon Ni, against whom the action was dismissed, sought costs against Nayyer.

The court awarded Nayyer full partial and substantial indemnity costs against Wang, totaling $128,627.17.

The court also awarded Ni costs of $2,938, but ordered them to be paid by Wang, not Nayyer, citing Ni's benefit from Wang's actions, his support of dishonest evidence, and "unclean hands" regarding taxes.

Prejudgment interest was set at 2% from October 28, 2018, the date the cause of action arose.

The defendants brought a motion to set aside a default judgment for possession of their property, which was granted to the plaintiff due to mortgage default.

The court dismissed the defendants' motion, finding they failed to provide a plausible excuse for the default, were properly served, and did not demonstrate an arguable defence on the merits.

The court also rejected the argument that the judgment was an improper 'partial default judgment' and concluded that the balance of prejudice favored the plaintiff, as the defendants continued to occupy the property without payments while the plaintiff incurred expenses.

The plaintiff brought an action against the defendants, his former mother-in-law's daughter and her husband, alleging an oral agreement to exchange his 20-percent beneficial interest in a jointly purchased property for sole ownership of a condominium owned by the defendant.

The defendant refused to convey the condominium after the plaintiff separated from her mother.

The court found that the plaintiff had established the oral agreements and made the required payments.

The court held that the Statute of Frauds did not bar the claim because it was not pleaded and the doctrine of part performance applied.

The court awarded the plaintiff $555,000 in damages for breach of contract, or alternatively for unjust enrichment, against the defendant who owned the condominium.

During the fifth day of trial, the defendants sought to call a handwriting expert whose report had been served but not listed in pre-trial documents or trial management forms.

The plaintiff opposed, citing significant prejudice due to lack of opportunity to prepare a responding expert report or adjust trial strategy.

The court denied the defendants' request, emphasizing the importance of procedural fairness, the prevention of trial by ambush, and adherence to the Rules of Civil Procedure and the Supreme Court of Canada's call for timelier and more affordable trials.

The appellant, Ellyn Law, appealed a motion judge's order that its retainer agreement with the respondents, Alexander L. Bimman and 2182474 Ontario Inc., was valid and capped fees at 30% of recovery, disallowing certain additional fees and disbursements.

The Court of Appeal affirmed the validity and enforceability of the retainer agreement, clarifying that while lawyers can challenge their own agreements under s. 24 of the Solicitors Act, there is a presumption of fairness and reasonableness that requires exceptional circumstances to rebut.

However, the Court found the motion judge erred in disallowing a disbursement for an external law firm (Chitiz Pathak LLP) as it was reasonably necessary to resolve the underlying action.

This case involved two consolidated actions arising from a failed joint real estate venture.

The plaintiff, 2270752 Ontario Inc., sued Baljit Dhaliwal for breach of trust for failing to return $600,000 advanced for the venture.

Concurrently, the plaintiff sought to set aside a fraudulent conveyance of Baljit Dhaliwal's matrimonial home to his wife, Arvinder Dhaliwal, alleging it was done to defeat creditors.

The court found Baljit Dhaliwal liable for breach of trust and ordered the return of the $600,000.

The court also found the transfer of the matrimonial home to be a fraudulent conveyance under the Fraudulent Conveyances Act, citing multiple "badges of fraud" and set it aside.

The actions against Century 21 New Star Realty Inc. and Arvinder Dhaliwal (for the breach of trust claim) were dismissed, as they were not involved in the breach of trust or vicariously liable.

The applicant sought to remove the respondent as the attorney for property and personal care for her father, alleging he lacked capacity to grant the power of attorney, that the respondent exercised undue influence, and that the respondent mismanaged his property and care.

The court found insufficient evidence to rebut the presumption of capacity or to establish undue influence.

The court also found no strong and compelling evidence of misconduct or neglect by the respondent to justify terminating the valid power of attorney.

The application was dismissed.

The defendant brought a motion to set aside a summary judgment of $50,000 obtained by the self-represented plaintiff.

The defendant argued that the summary judgment motion proceeded without proper notice to her or her counsel.

The court found that the plaintiff failed to provide the defendant's lawyer with notice of the return date for the summary judgment motion.

The court granted the motion and set aside the summary judgment, allowing the defendant an opportunity to have her defence dealt with on the merits.

The appellant appealed an order dissolving a partnership, declaring he had no interest in a specific property, ordering him to pay $410,984.61 to the respondent, and appointing the respondent as Receiver.

The appellant had a long history of non-compliance with multiple court orders, leading to an uncontested hearing.

The Court of Appeal found no error in the lower court's order, noting it flowed naturally from the appellant's prior non-compliance, and dismissed the appeal.

The moving parties (respondents in the main application) brought a motion to set aside two previous court orders.

The first order dissolved a real estate partnership and required the moving parties to pay compensation, which they argued was obtained without disclosing that they had appealed an earlier order striking their pleadings.

The second order dismissed their motion for leave to appeal after they failed to attend the hearing.

The court dismissed the motion to set aside, finding that the non-disclosure was not material as the pleadings had been struck for non-compliance with court orders, and the failure to attend the leave motion was not due to inadvertence.

A defendant brought a motion for security for costs under r. 56.01(1)(a), (d), and (e) of the Rules of Civil Procedure in an action by an estate seeking recovery of funds secured by a mortgage.

The moving party argued that the estate trustee ordinarily resided outside Ontario, that the trustee was a nominal plaintiff without assets in Ontario, and that the action was frivolous because it was statute-barred.

The court held that an executor cannot be personally ordered to post security for costs and that the estate possessed an asset in Ontario in the form of the mortgage.

The court further found that a payment toward the principal restarted the limitation period under s. 23(1) of the Real Property Limitations Act.

The motion for security for costs was therefore dismissed.

The plaintiff creditor brought a motion for summary judgment seeking to impose liability on multiple defendants arising from unpaid invoices for tires supplied to a corporate purchaser.

The plaintiff relied on alleged non‑compliance with the Bulk Sales Act and alleged fraudulent conveyances arising from the sale of the debtor company.

The court held that summary judgment was inappropriate because the Bulk Sales Act claim had not been pleaded and the evidentiary record did not establish fraudulent conveyance or liability of the additional defendants.

On a cross‑motion, certain defendants successfully sought to vacate a certificate of pending litigation and dissolve a Mareva injunction obtained ex parte, as the plaintiff failed to demonstrate an interest in land or a strong prima facie case with risk of asset dissipation.

In an application concerning a dispute over the beneficial ownership of a condominium allegedly funded by a loan, the applicant sought leave under Rule 39.02(2) of the Rules of Civil Procedure to file a supplementary affidavit after cross-examinations had been conducted.

The proposed affidavit asserted that payments previously identified by the respondent as repayment of the condominium loan were actually repayment of a different loan.

The court applied the governing factors for leave to file additional affidavit evidence after cross-examination, including relevance, responsiveness to cross-examination, prejudice, and the explanation for failing to introduce the evidence earlier.

Although the respondent made strong submissions opposing the request, the court accepted counsel’s explanation that the omission was due to oversight and found any prejudice could be compensated through costs and procedural directions.

Leave was granted on strict terms including a timetable for responding evidence and costs payable to the respondent.

In a receivership proceeding, the court considered a motion by a court-appointed receiver seeking a contempt finding against an individual who had taken possession of gold bars purchased by the debtor companies shortly before the receivership.

The receiver alleged that the respondent failed to comply with court orders requiring delivery of the precious metals and disclosure of information about their whereabouts.

Applying the three-part test for civil contempt, the court found beyond a reasonable doubt that the respondent knowingly breached both orders by failing to return at least some of the gold bars under his control and by withholding contact information for individuals involved in their distribution.

The court emphasized that contempt proceedings serve both punitive and coercive purposes to uphold the rule of law and enforce compliance with court orders.

The respondent was sentenced to six months’ imprisonment in Canada unless he purged his contempt within seven days by delivering available gold bars and providing the required information.

The appellant appealed a trial judgment finding it liable for unpaid invoices, arguing that a different corporate entity was responsible.

The Court of Appeal dismissed the appeal, noting that the appellant had taken a different position at trial and that there was no palpable and overriding error in the trial judge's finding of liability.

The Ontario College of Teachers brought discipline proceedings against a member who had been criminally convicted of numerous counts of sexual assault, indecent assault, and gross indecency involving multiple students over several years.

The member pleaded no contest to the allegations of professional misconduct and sexual abuse.

The Discipline Committee accepted the member's undertaking to surrender his teaching certificate and never teach again, and ordered the immediate revocation of his certificate.

The Committee also denied the member's request for a publication ban on his name, finding that the public interest in transparency and deterrence outweighed the member's concerns about harassment.