Jonathan L. Rosenstein

The appellants appealed the dismissal of their collection action against the respondents, who had guaranteed a vendor take-back mortgage.

The trial judge dismissed the action based on two defences—inadequate independent legal advice and failure to make a formal demand—that were not pleaded or raised during the trial.

The Court of Appeal allowed the appeal, finding that the trial judge breached procedural fairness by effectively amending the pleadings on his own initiative post-trial without giving the appellants adequate notice or a meaningful opportunity to respond.

A new trial was ordered.

In proposal proceedings under the Bankruptcy and Insolvency Act, the debtor brought concurrent expungement motions against proofs of claim filed by two former law firms.

The court held that the debtor failed to establish, on a balance of probabilities, that the trustee erred in admitting the unpaid appeal-fee claim of one firm or that the claim was not legitimate, and further held that s. 135(5) did not permit reopening paid accounts or ordering repayment beyond the amount of the proof of claim.

Applying insolvency expungement jurisprudence, solicitor’s account assessment principles, and the single proceeding model, the court found that the negligence allegations against the second firm raised complex unliquidated set-off issues more appropriately determined in the pending civil negligence action.

The expungement motion as to the first law firm was dismissed, while the motion as to the second was adjourned pending the civil action, with the trustee directed to retain the disputed amount.

The appellants, a real estate brokerage and its realtor, appealed a summary judgment dismissing their claim for a $650,000 commission from the respondent purchaser after a commercial real estate transaction failed to close.

The motion judge found that the Buyer Representation Agreement, which listed the commission as 'TBD', did not contractually bind the purchaser to pay the commission amount set out in a separate agreement between the brokerage and the seller.

The Court of Appeal dismissed the appeal, holding that the motion judge made no reviewable error in his contractual interpretation and that his conclusion was open to him based on the highly fact-specific circumstances.

In a contentious estates proceeding, the court determined costs following an earlier dismissal of the moving party's request for payout of sale proceeds held in trust.

Both sides sought partial indemnity costs and each claimed success, but the court found divided success and held that neither side was completely successful.

Applying Rule 57.01 principles, the court found the amounts sought were excessive in light of proportionality and mixed results.

The court also found litigation conduct by both sides increased costs, while assigning primary responsibility for failing to add the estate party to the estate trustee.

Costs were fixed at $5,000 payable by one responding party to the moving party.

Following a trial where the plaintiff succeeded in claims of oppression and fraud against two defendants, the court determined the costs of the action.

The court awarded the plaintiff substantial indemnity costs of $385,353.72 against the two main defendants, finding their conduct—including a fraudulent sham purchase and willful refusal to comply with a court order—to be reprehensible, scandalous, and outrageous.

A corporate co-defendant was held jointly and severally liable for 35% of those costs due to the plaintiff's success on a contract rescission claim.

A dispute arising from a failed gas station development venture.

The plaintiff invested $350,000 for a 50% interest in a company owning a property in Thorndale, Ontario, with the defendant agreeing to complete development obligations in exchange for a 50% interest for $50.

The relationship deteriorated due to lack of communication and delays.

The defendants sold the property to a third party without the plaintiff's knowledge or authorization.

The plaintiff obtained a certificate of pending litigation and commenced litigation.

The property was eventually returned to the original company.

The court found the defendants liable for oppression and fraud, ordered a shotgun buy-sell arrangement based on independent appraisal, and awarded damages at large.

Following the dismissal of the plaintiffs' action against the defendants Ashok and Usha Badhwar in the trial decision indexed as 2024 ONSC 7285, the Badhwars sought costs of the action.

The defendants were represented at trial by their daughter-in-law, Rhea Sharma, a lay representative, rather than by counsel.

The court considered the principles established in Girao v. Cunningham regarding costs awards to self-represented litigants and lay representatives.

The court awarded costs to the Badhwars despite the absence of formal legal representation, recognizing that Ms. Sharma had devoted significant time and effort to the case and that the Badhwars were vulnerable parties who required assistance.

This costs endorsement follows the granting of interlocutory relief to Parkland Corporation in a lease dispute.

The court awards partial indemnity costs to Parkland, finding the respondents' conduct did not rise to the level warranting substantial indemnity.

The decision discusses the principles governing costs, including proportionality, misconduct, and the timing of costs awards.

The appellants appealed a trial judgment that dismissed their claims of substantial interference with an easement and nuisance against the respondents, while granting a permanent injunction preventing parking in the right-of-way tunnel.

The respondents cross-appealed the scope of the parking injunction.

The Court of Appeal dismissed both appeals, finding no palpable and overriding error in the trial judge's interpretation of the easement, application of the substantial interference test, or the tailored scope of the parking injunction.

The trial judge's costs award was also upheld.

The decision concerns Parkland Corporation’s motion for interlocutory relief to enforce negative covenants in a lease requiring Caledon Fuels Inc. to operate a gas station as an Ultramar station with fuel supplied by Parkland.

The court grants Parkland leave to register a certificate of pending litigation (CPL) and issues an injunction against Caledon and the purchaser, 16408117 Canada Inc., from breaching the lease.

The ruling addresses the legal tests for a CPL and interlocutory injunction, the effect of actual notice of a lease under the Land Titles Act, and the balance of convenience between the parties.

The plaintiffs sought to enforce a guarantee, promissory note, and mortgage against Ashok and Usha Badhwar, parents of a primary debtor, for a debt of over $1.3 million.

The defendants raised defences of non est factum, undue influence (for Usha), and failure to demand payment on the guarantee.

The court found that the plaintiffs knew or ought to have known of the parents' lack of sophistication and English language skills, and Usha's susceptibility to undue influence.

The certificate of independent legal advice obtained by the plaintiffs was deemed fatally flawed and insufficient to protect them from these equitable defences.

Additionally, the court found the guarantee to be a demand guarantee, and the plaintiffs failed to make a formal demand before commencing the action.

Consequently, the court dismissed the plaintiffs' action, set aside the guarantee, promissory note, and mortgage, and ordered the mortgage removed from the parents' property title.

The defendants Nik Handa and Re/Max Realty Services Inc. brought a motion for summary judgment seeking $650,000 in commission from the plaintiff Nadeem Qureshi, related to an aborted real estate transaction where Re/Max acted as Qureshi's agent.

Qureshi brought a cross-motion to dismiss the counterclaim.

The core dispute involved the interpretation of the "To Be Determined" (TBD) commission clause in the Buyer's Representation Agreement (BRA) and whether subsequent agreements (Commission Agreement and revised Co-op Agreement) incorporated a fixed commission amount binding on Qureshi.

The court found that the commission amount was an essential term not sufficiently determined in any contract signed by Qureshi, and the revised Co-op Agreement did not incorporate the Commission Agreement's terms to bind Qureshi for payment.

The defendants' motion for summary judgment was dismissed, and Qureshi's cross-motion was granted.

This case, originally an application for damages for breach of an Agreement of Purchase and Sale (APS) and later converted to a trial, involved the plaintiff's attempt to purchase a gas station from the defendants.

The court found that the defendant seller breached the APS by failing to arrange sufficient financing and not being ready to close the transaction.

However, the plaintiff's claim for damages was dismissed as it failed to prove it suffered any damages, specifically by not establishing the market value of the property at the date of breach and by relying on inadmissible hearsay evidence for lost opportunity damages.

The court declined to award costs, ordering each party to bear its own.

The defendant Scottish & York Insurance Co. Limited brought a motion under Rule 26.01 to amend its statement of defence and, if necessary, under Rule 51.05 to withdraw an admission.

The plaintiff, Gordon Djuric, opposed, arguing the amendments constituted a withdrawal of an admission regarding OPCF 44R underinsured motorist coverage and would cause non-compensable prejudice, particularly affecting his accident benefits settlement.

The court found that the original statement of defence did not contain an unambiguous admission of OPCF 44R coverage.

Furthermore, the court determined that the alleged prejudice (denial of benefits the plaintiff may not have been entitled to) was not the type of non-compensable prejudice contemplated by Rule 26.01.

Leave to amend the statement of defence was granted, and costs were awarded to Scottish & York.

The appellant appealed a trial decision regarding the interpretation of a Share Purchase Agreement and the calculation of an earn-out provision (Target EBITDA).

The trial judge had found that the respondents constructively dismissed two key salespeople and engaged in oppressive conduct, reducing the Target EBITDA accordingly, but refused to further reduce it by a settlement amount the respondents received for a stolen book of business.

The trial judge also refused to adjust the Lower Threshold in the earn-out formula.

The Divisional Court dismissed the appeal, finding no error in the trial judge's contractual interpretation or his crafting of the oppression remedy, which properly validated the reasonable expectations of the parties as set out in the agreement.

A cross-appeal on costs was also dismissed.

The appellant, Amtim Capital Inc., appealed the dismissal of its claim against Appliance Recycling Centers of America (ARCA) for alleged underpayment due to improper allocation of head office expenses.

The trial judge found Amtim failed to discharge its onus of proving ARCA breached the agreements or that the expense allocation was not in accordance with U.S. GAAP.

The Court of Appeal upheld the trial judge's findings, including the refusal to draw adverse inferences against ARCA for alleged disclosure deficiencies, noting Amtim's failure to pursue further production motions or utilize contractual access rights.

The appeal was dismissed, and the appellant was ordered to pay costs.

This decision addresses costs following a trial concerning easement rights and property interference.

The plaintiffs' (Paiva) claims against the Town of Newmarket were dismissed, and their claims against the Buckley defendants were largely dismissed, except for a limited injunction.

The Buckley defendants' counterclaim for an injunction was granted.

The court, applying the Courts of Justice Act and Rules of Civil Procedure, awarded costs to the Town of Newmarket and the Buckley defendants as the overall successful parties, while reducing their claimed amounts due to excessive hours billed and, for the Buckley defendants, instances of breaching court orders.

The applicant sought a declaration regarding ownership of chattels left on a property sold to one respondent, and damages for lost chattels.

The court found an agreement for storage constituted a gratuitous bailment, not a license, and that the chattels were not abandoned.

The respondent bailee improperly transferred possession of the chattels to a subsequent purchaser.

The court declared the applicant's ownership of the remaining chattels and ordered damages for the lost ones.

This trial concerned a long-standing dispute over an easement (right-of-way) through a tunnel between adjacent commercial properties at 247, 253, and 255 Main Street South, Newmarket.

The plaintiffs, owners of 255 Main Street, alleged that the defendants, owners of 247 and 253 Main Street, substantially interfered with their easement rights through increased use, physical alterations, and parking.

The plaintiffs also sued the Town of Newmarket for enabling the interference.

The defendants counterclaimed, asserting the plaintiffs illegally parked on their property.

The court found that while increased use and minor alterations did not constitute substantial interference, the defendants' parking in the tunnel did.

The court dismissed the plaintiffs' claims for damages and against the Town of Newmarket, but granted an injunction preventing parking in the tunnel.

The court also granted the defendants' counterclaim, enjoining the plaintiffs from parking on the 253 Main Street parking pad, finding no ancillary right or prescriptive easement for parking.

This is an amended costs endorsement following a successful appeal by the respondents.

The Court of Appeal for Ontario awarded costs of the appeal to the respondents Burns Hubley LLP, Paul Gribilas, and J+W Foods Inc., inclusive of disbursements and interest, payable by the appellants.