Jonathan L. Rosenstein

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 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, 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 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.

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.

The applicant, Luke Vitale, sought costs after successfully appealing a City of Toronto Order to Comply regarding his property's dwelling units.

Although Vitale's application was granted on terms, the court found a fatal flaw in the City's order.

Despite Vitale's technical victory, the court noted his unnecessary maligning of the City and mutual miscommunications.

The City sought no costs.

The court ultimately ordered no costs, deeming it a technical victory for Vitale but satisfying the City's concerns, concluding that no order as to costs was appropriate.

The appellants appealed the dismissal of their defamation action under an anti-SLAPP motion, which arose from the respondent briefly sharing a Facebook post alleging theft of charitable funds.

The Court of Appeal upheld the motion judge's decision, finding that the expression related to a matter of public interest and that the appellants failed to demonstrate sufficient harm to outweigh the public interest in protecting the expression.

The court emphasized the lack of evidence of actual harm beyond a legal presumption and the brief duration of the impugned post.

The appellants, William Fehr Sr. and Dorothey Fehr, appealed a lower court order that permanently stayed their professional negligence action against Paul Gribilas (lawyer) and Burns Hubley LLP (accounting firm) based on a "no-claims-over" provision in a mutual release.

The release settled previous disputes, including the Fehrs' purported interest in J+W Foods Inc. The professional negligence action alleged that Gribilas and Burns Hubley LLP failed to protect the Fehrs' shareholdings.

The motions judge found the action to be an abuse of process because it contravened the no-claims-over clause, which prevented claims against parties who might seek contribution from the releasees (J+W Foods Inc., William Fehr Jr., Steven Trougakos).

The Court of Appeal dismissed the Fehrs' appeal, affirming that the motions judge had the inherent authority to stay the action as an abuse of process and that the defendants had a viable claim over, thereby triggering the no-claims-over provision.

The cross-appeal by Gribilas and Burns Hubley LLP was dismissed as moot.

The applicant, a real estate developer, appealed a Building Code Act Order to Comply issued by the City of Toronto, which mandated reverting his five-unit residential multiplex to a three-unit dwelling.

The property, originally a single-family home, was converted to multiple units before the applicant's purchase in 2011, and was zoned for single-family use in 1963.

The City initiated prosecution for non-compliance.

The court found the City's Order, issued under s. 10(1) of the Building Code Act, was based on an error of law, as that section applies to a change in use by the current owner, not a pre-existing condition.

Despite the appeal being out of time, an extension was granted.

The appeal was allowed on terms that the property must be used for only three dwelling units, aligning with the Act's public welfare objectives.

The plaintiffs, a realtor and his brokerage, sought to recover real estate commissions and leasehold improvement costs from the defendants related to the purchase of commercial units.

The defendants raised limitations and illegality as defences, arguing the realtor breached regulatory duties and that an "entire agreement" clause precluded the claims.

The court found the claims were not statute-barred, the entire agreement clause did not apply to exclude the agreed-upon costs and interest-free period, and the defence of illegality was not applicable despite some regulatory breaches by the realtor, as it would result in unjust enrichment for the buyers without prejudice.

The action was allowed in part, holding the individual defendant and two corporate defendants liable for the outstanding amounts with pre-judgment interest, while one corporate defendant was found not liable for a specific unit.

This decision addresses the costs award following the dismissal of an action under section 137.1(3) of the Courts of Justice Act (an anti-SLAPP motion).

The successful defendant sought full indemnity costs.

The plaintiffs argued for partial indemnity due to the defendant's delay in bringing the anti-SLAPP motion.

The court awarded full indemnity costs for the anti-SLAPP motion itself and partial indemnity costs for the remainder of the action, finding that delay warranted a discount from full indemnity for the action's costs but not a "double discount" or a reduction for the motion costs.

This application, proceeding as a hybrid trial, concerned the valuation of CE Williams Import Export Inc. (the "Corporation"), a company jointly operated by the applicant and respondent.

The court addressed disputes regarding the Corporation's value following the dissolution of the parties' business relationship in 2015.

Key determinations included dismissing the respondent's limitations defense, establishing a 5% commission rate for valuation, excluding revenue from the FCR brake flange DT program, including revenue from the Gen V (Magna) program for the full valuation period, and setting specific income for the Bridgestone fastener and Multimatic E2xx programs.

The court normalized owner salaries at $110,000 and variable expenses at 20% of revenue, and ruled that sales volumes should include all of North America.

A terminal value for the Corporation was excluded.

The court also ordered adjustments in the applicant's favour for assets transferred to the respondent's new company and to equalize expenses.

The parties' experts were directed to re-calculate the Corporation's value based on these findings, with the respondent to account for 50% of the adjusted value plus prejudgment interest.