Jonathan C. Lisus

The applicant landlord sought a declaration regarding the interpretation of a rent re-set clause in a 99-year commercial ground lease.

The clause required the property to be valued 'as if it were unimproved'.

The landlord argued this meant the land should be valued as if it were unencumbered and available for freehold condominium development.

The respondent tenant argued the valuation must account for legal restrictions preventing such development.

The court held that the landlord was issue estopped from re-litigating the interpretation decided in a 1990 arbitration.

Alternatively, the court found that the correct interpretation of the lease required the valuation to account for the legal encumbrances restricting the tenant's ability to develop the property.

The appellant, a hotel owner, sought recovery for fire damage to its building caused by a fire in the respondents' leased restaurant space.

The appellant's insurer brought a subrogated action in the appellant's name.

The respondents argued that the lease terms barred the insurer from pursuing the claim.

The motion judge dismissed the action, finding that the landlord's covenant to insure and the tenant's contribution to insurance costs triggered the principles established in the Supreme Court trilogy, preventing subrogation against the tenant.

The Court of Appeal reversed, holding that the lease contained explicit "notwithstanding" language that overcame the trilogy principles and preserved the tenant's liability for its own negligence.

Following a series of motions and applications in a complex family estate and joint venture dispute, the court determined the appropriate costs awards.

The court awarded partial indemnity costs to Mattamy Homes for an abandoned summary judgment motion and a successfully defended summary judgment motion.

The litigation guardian was also awarded partial indemnity costs.

However, the joint attorneys for property were awarded substantial indemnity costs of $180,000 against the Bistricers, as the court found the Bistricers' conduct in the litigation to be reprehensible, duplicitous, and driven by ulterior motives.

Appeal from a trial judgment dismissing a negligent misrepresentation claim.

The appellants, a manufacturer of assembly lines, contracted to supply equipment to a German company.

When the purchaser transferred the contract to its Canadian subsidiary, the appellants requested assurances from the parent company.

The respondents provided a letter from their bank confirming project financing and the parent company's guarantee.

When the project failed due to industry collapse, the appellants sued for negligent misrepresentation, claiming the letter was misleading because it failed to disclose that the bank's financing was conditional.

The trial judge dismissed the claim, finding the representation was true and not misleading, and that the appellants had not reasonably relied on it.

The Court of Appeal upheld the dismissal, finding no palpable and overriding error and no denial of procedural fairness.

The plaintiffs requested an amendment to the court's previous reasons dismissing their request for injunctive relief, citing an error in a transcript regarding whether the Law Society of Upper Canada was investigating the plaintiffs.

The defendant conceded the transcript error but argued the dismissal should be maintained.

The court corrected the factual error in its supplementary reasons but declined to amend its previous order, finding that the plaintiffs' case for injunctive relief was still not ironclad enough to warrant the exceptional remedy sought.

The parties sought to settle an order following a decision finding the respondent in breach of an indemnity agreement related to a commercial lease.

The applicant landlord requested that the order include rent payable through to the end of the lease term, an issue not raised during the initial application.

The court held that while a lease is a commercial contract allowing for damages post-termination, the landlord has a duty to mitigate.

Because the landlord provided no evidence that the loss of future rent was unavoidable, the court declined to include an award for rent beyond the date previously determined.

The defendant, Her Majesty The Queen in Right of Ontario, brought a motion to stay an order dated August 4, 2017.

Following the Divisional Court's dismissal of Ontario's motion for leave to appeal on October 3, 2017, the Superior Court of Justice dismissed the motion to stay as moot.

Costs of the motion were reserved to the disposition of the defendants' motions for summary judgment.

The plaintiffs sought costs of $132,992.26 after successfully opposing the defendants' motions to quash summonses.

The defendants argued that costs should be reserved to the disposition of upcoming summary judgment motions, or alternatively that the costs claimed were excessive.

The court found that the plaintiffs' costs outline did not sufficiently delineate the time spent on the motions to quash versus other related motions.

Due to the lack of required facts and detailed submissions, the court reserved the costs of the motions to quash to the hearing of the motions for summary judgment.

The defendants, Ontario and OLG, brought motions to quash summonses to witness served by the plaintiffs on 13 non-parties, including former and current Cabinet ministers, in advance of pending summary judgment motions.

The plaintiffs sought to examine these witnesses under Rule 39.03 regarding the cancellation of the Slots at Race Tracks Program (SARP).

The court held that the defendants had standing to challenge the summonses and that the plaintiffs had met the low threshold of showing the proposed witnesses might have relevant evidence.

The court rejected arguments that the examinations were an abuse of process or barred by Cabinet confidentiality at this stage.

However, the court quashed the summonses served on Premier Kathleen Wynne and Minister Ted McMeekin on the basis of parliamentary privilege, as they were sitting members of the legislature.

The applicant landlord brought an application to enforce an indemnity agreement against the respondent guarantor after the tenant defaulted on a commercial lease.

The respondent argued the application should be converted to a trial, alleging it was induced to sign the indemnity by negligent misrepresentations regarding park signage and access.

The court found no evidence of specific, actionable representations and held that the absolute and unconditional terms of the indemnity agreement, along with the parol evidence rule, precluded the respondent's defence.

The application was granted, and the respondent was ordered to pay rent arrears, restoration costs, and legal fees.

This costs endorsement followed a motion with divided success.

The applicant succeeded on minor issues (dismissing a sealing order motion), while the respondent succeeded on the major issue (establishing privilege over documents and obtaining an order for their delivery/destruction).

The court found the major issue occupied significantly more time.

Applying Family Law Rule 24(6), the court apportioned costs, awarding them to the respondent due to greater success on the major issue.

The applicant's failure to provide a costs outline, while criticizing the respondent's counsel's time investment, was noted as an 'attack in the air'.

The respondent's costs outline was deemed reasonable given the complexity and effort involved.

The applicant was ordered to pay the respondent $81,275.65 in costs.

The Crown sought an adjournment of a constitutional challenge brought by the Canadian Civil Liberties Association (CCLA) against administrative segregation provisions in the Corrections and Conditional Release Act.

The Crown argued for deference to Parliament due to pending legislative amendments (Bill C-56) and a new administrative policy.

The CCLA opposed the adjournment.

The court refused the adjournment, finding that the CCLA's constitutional challenge addressed aspects of the existing Act that would remain unaltered by the proposed amendments, thus rendering the adjournment unnecessary and not a matter of disrespect to the legislative process.

The respondent, Eli Dadouch, brought a motion seeking the return and destruction of solicitor-client privileged notes surreptitiously photographed by the applicant, Anita Bielak, and for orders sealing the court file and restraining the applicant from discussing the litigation with their adult children.

The court found the notes to be privileged and ordered their return and destruction.

However, the court dismissed the requests for a sealing order and a gag order, emphasizing the principle of open courts and the impracticality of such an order given the adult children's awareness and the need for therapeutic, not legal, intervention for their distress.

Her Majesty the Queen in Right of Ontario (HMQ) sought an order to enforce an agreement between counsel to delay examinations under Rule 39.03 pending a motion to quash summonses, or alternatively, to stay the summonses.

The court applied the RJR MacDonald test for a stay, finding a serious issue to be tried regarding the quashing of summonses and the standing of HMQ/OLG to quash summonses for unrepresented witnesses.

The court determined that proceeding with examinations would cause irreparable harm to HMQ's legal interests by rendering the motion to quash moot.

The balance of convenience favoured HMQ, and the motion to stay the summonses was granted.

The Applicant sought to disqualify the Respondent's counsel, Harold Niman and Niman Gelgoot & Associates, citing a conflict of interest due to Niman's prior representation against the Applicant and her family in other family law disputes, and alleging Niman possessed confidential information.

The Applicant also argued the Respondent's retention of Niman was tactical and intended to intimidate her.

Niman brought a cross-motion to strike certain evidence from the Applicant's affidavits, including settlement-privileged communications and documents related to a complaint against Dr. Douglas Weir to the College of Physicians and Surgeons.

The court dismissed the Applicant's motion to disqualify, finding no "sufficient relationship" between the prior retainers and the current proceeding, and no evidence that Niman actually possessed relevant confidential information.

The court granted Niman's motion to strike, upholding settlement privilege and the statutory prohibition against admitting professional regulatory proceedings in civil matters.

The wife and her boyfriend brought a motion to remove the husband's lawyer due to an alleged conflict of interest.

The boyfriend had a brief consultation with the lawyer for his own matrimonial matter, and the husband's answer in the current litigation alleged an affair between the wife and boyfriend and extravagant spending.

The moving parties claimed the lawyer breached duties of confidence, loyalty, and candour, and faced a potential conflict in cross-examining the boyfriend as a witness.

The court dismissed the motion, finding no confidential information was disclosed, the relationship between the wife and boyfriend was not confidential, and the two matrimonial litigations were not sufficiently related to create a presumption of conflict.

The court also found no breach of a limited duty of loyalty or candour, and no impediment to cross-examination.

The defendant sought leave to appeal an order dismissing a motion to strike or stay an amended statement of claim.

The underlying action alleged that government representations induced the plaintiffs to invest in a telecommunications company and that subsequent government conduct destroyed the value of the investment, causing significant losses.

The moving party argued the claim was derivative in nature and that several pleaded causes of action disclosed no reasonable cause of action.

The court held that the stringent test for leave to appeal under Rule 62.02(4)(b) was not met because there was no reason to doubt the correctness of the motion judge’s decision.

Although the pleadings raised novel and important legal issues, they were not plainly and obviously doomed to fail and should proceed on a full evidentiary record.

The applicants, anchor tenants in three shopping malls, sought to assign and sublease their leases to a joint venture limited partnership.

The respondent landlords refused consent.

The court held that consent was not required because the leases were being assigned to the general partner, which was an affiliate of the existing tenant, thus falling under the leases' Affiliate Exception.

Alternatively, the court found that the landlords unreasonably withheld consent for two of the leases, as the tenant would remain liable and continue operating the stores, but the landlord was entitled to arbitrarily withhold consent for the third lease based on its specific terms.

The plaintiffs and the defendant OLG brought cross-motions regarding discovery in an action for damages arising from the cancellation of the Slots at Racetrack Program.

The plaintiffs sought an order compelling OLG to produce relevant emails sent or received by current and former OLG employees on personal, non-OLG email accounts, and to produce OLG's email use and document retention policies.

OLG sought leave to conduct an advance form of discovery by written questions prior to oral examinations.

The court adjourned both motions, ordering OLG to produce its IT and document retention policies for the court's review, and granting the parties leave to file further affidavit evidence regarding OLG's request for written particulars.

The Crown brought a motion for leave to appeal an order permitting the plaintiffs to amend their statement of claim to add the Crown as a defendant in litigation concerning the implementation of competitive procurement for student transportation services.

The plaintiffs alleged the Ministry of Education improperly influenced school boards to use RFP processes under the Broader Public Sector Accountability Act and related procurement directives, disadvantaging smaller operators.

The court held that the claims, including allegations of negligent misrepresentation and breach of statutory duties, were not plainly untenable and required a full factual record at trial.

Questions regarding Crown immunity and the scope of any duty of care could not be resolved without detailed factual findings.

Leave to appeal was therefore refused.