John Polyzogopoulos

This decision concerns the validity of a by-law amendment by Information Technology of Systems Ontario (ITSO) requiring member associations to maintain the same corporate structure and control as when they first became members, unless approved by ITSO’s board.

The Barrie & District Association of Realtors (BDAR) challenged the amendment, arguing it was a retroactive breach of contract, impermissibly vague, and made in bad faith to target BDAR.

The court dismissed the application, finding the amendment was not retroactive, was sufficiently clear, and was made for a legitimate purpose in the best interests of ITSO and its members.

The applicant sought costs on a full or substantial indemnity scale following a consent order resolving her motion for a Mareva injunction and Norwich order against the respondent, her brother and co-estate trustee.

The respondent had unilaterally transferred approximately $500,000 of estate assets to himself.

The court declined to award elevated costs, noting the applicant had also participated in impersonating the deceased to facilitate the initial transfer of funds.

The court fixed the applicant's costs on a partial indemnity scale at $45,960.00 and found the respondent's settlement offer did not entitle him to a costs set-off as it lacked the certainty achieved in the consent order.

This endorsement addresses the costs of a successful motion by the Defendant, Andrew Rudensky, to set aside a noting in default and default judgment obtained by the Plaintiffs.

The Plaintiffs argued for no costs or an offset, asserting Mr. Rudensky's fault for the default.

The court found the Plaintiffs solely responsible for failing to properly serve Mr. Rudensky, thus dismissing their arguments regarding his alleged fault or delay.

The court also rejected Mr. Rudensky's claim for substantial indemnity costs under Rule 49.10, finding that his offer to settle was not "beaten" by the costs endorsement itself.

Ultimately, the court fixed Mr. Rudensky's partial indemnity costs at $79,253.40, payable by the Plaintiffs within 30 days.

The defendant, Andrew Rudensky, moved to set aside a default judgment and noting of default obtained by the plaintiffs for defamation.

The court found that the Amended Statement of Claim was not properly served on Mr. Rudensky at his place of residence, rendering the default judgment irregularly obtained.

Applying the "as of right" rule for irregularly obtained judgments, the court set aside both the default judgment and the noting of default.

Following the dismissal of the moving parties' motion for a certificate of pending litigation, both parties sought costs.

The moving parties argued they were substantially successful because the dismissal was conditional on an undertaking offered by the responding parties.

The court rejected this argument, noting the moving parties chose to proceed with the motion after the undertaking was offered.

The court awarded costs to the successful responding parties on a partial indemnity scale in the amount of $86,739.59.

The plaintiffs moved for leave to issue a certificate of pending litigation against a commercial property in Barrie, alleging an agreement to jointly acquire the property with the defendants.

The court found a triable issue regarding the plaintiffs' claim to an interest in the land, including whether one defendant acted as an agent for an undisclosed principal.

However, balancing the equities, the court dismissed the motion conditional upon the corporate owner providing an undertaking not to sell the property except to a bona fide purchaser, to pay 50% of net proceeds into court if sold, and to provide 30 days' notice of any refinancing or sale.

The defendant brought a motion under Rule 21.01(1)(b) to strike out claims for damages for conspiracy made in the plaintiff's statement of claim.

The defendant argued that the Competition Act precludes conspiracy allegations relating to price maintenance, that directing minds cannot conspire with their corporation, that the principle of merger precludes the claims, and that special damages were not properly pleaded.

The court dismissed the motion, finding that the law on price maintenance conspiracy is unsettled, the directing minds' alleged conduct was tortious in itself, the principle of merger applies at trial rather than the pleadings stage, and pleading the same special damages for both substantive wrongs and conspiracy is sufficient.

The defendants brought a motion to stay or dismiss the action, arguing it was improperly commenced by a litigation guardian because the 90-year-old plaintiff had been assessed as capable of managing her property.

The court dismissed the motion, finding that while the plaintiff could manage basic property, the capacity assessor properly concluded she lacked the specific capacity to instruct counsel due to a stroke and the complexity of the litigation.

The court also dismissed the defendants' alternative motion to remove the litigation guardian and plaintiff's counsel for alleged conflicts of interest, finding no evidence that the litigation guardian was acting contrary to the plaintiff's best interests.

The defendant brought a motion to permanently or temporarily stay the Ontario action in favour of proceedings in Florida.

The plaintiff, a Florida mortgage lender, commenced the Ontario action to enforce a personal guarantee signed by the defendant in Toronto.

The defendant argued that Florida was the more appropriate forum due to ongoing foreclosure and deficiency proceedings against his company in Florida, as well as a separate action he commenced there alleging fraud.

The court dismissed the motion, finding that the defendant failed to establish that Florida was the clearly more appropriate forum, as the key witnesses and the defendant were in Ontario, and the guarantee was signed in Ontario.

The court also declined to grant a temporary stay, noting that the Florida proceedings involved different parties and subject matter.

The plaintiff initiated an action against the defendant for a loan guarantee.

The defendant sought to stay the action on the basis of *forum non conveniens*, arguing a Florida proceeding was more appropriate.

Due to COVID-19 disruptions, a case conference was held to establish a timetable for the defendant's motion.

The parties disagreed on the hearing format and the defendant's obligation to file a Statement of Defence.

The court ordered the defendant to deliver a Statement of Defence and Motion Record by June 19, 2020, and set a detailed schedule for the motion, deferring the decision on whether the hearing would be oral or written.

The applicant brought a motion for contempt against the respondent for alleged non-compliance with consent orders regarding the sale of condominium units and the deposit of revenues.

The court dismissed the contempt motion, finding the test for contempt was not met beyond a reasonable doubt, particularly as the underlying orders were moot due to the sale of units.

However, the court awarded the applicant costs for the overall application, distinguishing between periods of litigation and finding the respondent's delays after the initial orders unjustified.

This is a costs ruling following a successful application by Halton Standard Condominium Corporation No. 627 to enforce an arbitration agreement and award against the Grandview respondents, and to set aside a solicitors' charging order claimed by Blaney McMurtry LLP.

The applicant sought costs on various scales against both sets of respondents.

The court awarded partial indemnity costs against the Grandview respondents for their failure to comply with the arbitration agreement and award, and partial indemnity costs against Blaney McMurtry LLP as the unsuccessful party regarding the charging order.

The applicant condominium corporation sought to enforce an arbitration agreement and award, which required the transfer of property from the developer respondents free of encumbrances.

The respondent law firm, Blaney McMurtry LLP, opposed this, asserting a valid solicitors' charging order over the same property for unpaid legal fees.

The court considered whether to set aside or vary the charging orders and whether to enforce the arbitration award.

The court found that the charging orders improperly covered property not "recovered or preserved" through the solicitors' work and set them aside as against the transfers to the condominium.

Consequently, the arbitration agreement and award were enforced and incorporated into a judgment.

The plaintiffs sought partial-summary judgment for rescission of a franchise agreement and damages under the Arthur Wishart Act, alleging fundamental disclosure deficiencies, specifically the non-disclosure of earnings projections.

The defendants argued proper disclosure, timeliness issues, and issue estoppel.

The court, utilizing enhanced summary judgment powers, found that the non-disclosure of earnings projections constituted a material and fundamental omission, tantamount to no disclosure under AWA s. 6(2), thereby triggering the plaintiffs' right to rescission.

The court dismissed the defendants' arguments regarding timeliness, issue estoppel, and other alleged deficiencies, and granted the plaintiffs' motion for rescission and damages.

The defendants brought a motion for leave to file an additional affidavit, continue the cross-examination of the plaintiff, and compel production of evidence from a related bank action, after cross-examinations had already concluded.

The motion was brought shortly before a scheduled summary judgment motion, following a change of counsel for the defendants.

Applying the four-factor test from First Capital Realty, the court granted leave to file the additional affidavit, noting the importance of a full evidentiary record for a summary judgment motion and the lack of non-compensable prejudice.

However, the court denied the requests to continue the cross-examination and compel production of the bank action evidence.

Following the dismissal of the plaintiff's motion for an interlocutory injunction, the defendants sought costs of over $100,000 payable forthwith.

The court noted the general rule that an unsuccessful party on an injunction motion typically pays costs forthwith, but found this to be an exceptional case.

The court found the defendant accountant's evidence regarding his involvement in the allegedly fraudulent transaction to be highly questionable and contrary to normal business practices.

Consequently, the court fixed costs at $85,000 on a partial indemnity basis but ordered them to be in the cause, leaving the ultimate burden of costs to be determined at trial.

A creditor brought an application for a bankruptcy order alleging acts of bankruptcy and sought a stay of the proceeding pending the debtor’s criminal fraud trial.

The creditor acknowledged that he could not prove the alleged debt without relying on findings from the criminal prosecution.

The court held that the Bankruptcy and Insolvency Act requires a bona fide allegation of a debt capable of proof at the time a bankruptcy application is commenced.

Applying both that principle and the RJR‑MacDonald stay test, the court found the applicant failed to demonstrate irreparable harm and that the balance of convenience favoured the debtor due to reputational and credit harm caused by an outstanding bankruptcy application.

The motion for a stay was denied and the applicant was granted leave to withdraw the bankruptcy application subject to costs submissions.

The applicant receiver sought leave to issue a writ of possession over a mortgaged property after alleging the respondent breached Minutes of Settlement by renting out the property rather than residing there.

The dispute centred on the interpretation of the phrase that the respondent would “remain in possession” of the property.

Applying established principles of contractual interpretation, the court held the settlement terms were clear and did not require the respondent to personally reside at the property.

The respondent retained possession so long as specified obligations were met, and there was no evidence those conditions were breached.

Accordingly, the alleged breach did not occur and the applicant was not entitled to enforce possession.