Jonathan L. Rosenstein

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.

This case involved a dispute over a 20-year commercial lease agreement between Bellwoods Brewery Inc. (Tenant) and 1896841 Ontario Limited (Landlord) for a second brewery and event space location.

Bellwoods alleged the Landlord breached the lease by failing to vacate the premises as required, delaying their operations.

The Landlord counterclaimed for unpaid rent.

A separate action by Lennard Commercial Realty for unpaid commission was also heard.

The court found the Landlord in breach of the lease for failing to vacate the premises and ordered specific performance of the lease, along with significant damages to Bellwoods for lost profits due to the delay.

The Landlord's counterclaim was dismissed.

Lennard's action for commission was also dismissed, as the contract stipulated payment upon occupancy, which had not yet occurred.

The appellants appealed a trial judgment awarding the respondents damages for oppression.

The trial judge found that the parties had entered into an oral agreement and a shareholders' agreement for the respondents to receive a 20 percent equity share in a new car dealership, which the appellants breached by excluding the respondents and obtaining the dealership through a different corporate entity.

The Divisional Court dismissed the appeal, finding no palpable and overriding error or extricable error of law in the trial judge's conclusions regarding the existence of the agreements, the breach, the respondents' standing as complainants under the Business Corporations Act, and the finding of oppression.

The respondents (plaintiffs below) moved to quash an appeal brought by the appellant (defendant below) from two interlocutory orders.

The appellant had appealed orders dismissing his motion to vary a summary judgment order and a subsequent motion to set aside an order granting leave for a writ of possession.

The Court of Appeal determined that the orders appealed from were interlocutory in nature, meaning jurisdiction for the appeal lay with the Divisional Court with leave, not the Court of Appeal.

Consequently, the motion to quash the appeal was granted.

The defendant brought an anti-SLAPP motion under subsection 137.1(3) of the Courts of Justice Act to dismiss a defamation action.

The court found that the defendant's expression, a Facebook post concerning the management of charitable funds for a dam project in Pakistan, related to a matter of public interest.

While the plaintiffs' defamation claim was found to have substantial merit, they failed to demonstrate that the harm suffered was sufficiently serious to outweigh the public interest in protecting the expression.

The court noted the plaintiffs provided no evidence of harm beyond legal presumption and failed to establish a causal link between the defendant's short-lived post and any significant harm, especially given other active defamatory posts.

Consequently, the action was dismissed.

The plaintiff, a personal services corporation, entered into sales and management agreements with the defendant, a U.S. corporation, to manage its Canadian subsidiary.

The plaintiff's compensation was based on the subsidiary's net profit, calculated in accordance with U.S. GAAP.

The plaintiff sued for breach of contract, alleging the defendant improperly allocated corporate overhead costs to the Canadian subsidiary, thereby artificially reducing the net profit and the plaintiff's compensation.

The court dismissed the action, finding the plaintiff failed to prove on a balance of probabilities that the defendant's allocation of corporate overhead costs was not in accordance with U.S. GAAP.

The court also dismissed additional claims for unpaid invoices and wrongful termination due to lack of evidence.

The applicant, a secured creditor for an equipment loan, sought the appointment of a receiver over the assets of two related debtor companies: one operating a cannabis facility and the other owning the real estate.

The mortgagees opposed the appointment over the real estate, arguing the applicant had no security interest in it and preferring to sell under power of sale.

The court found it just and convenient under section 101 of the Courts of Justice Act to appoint a receiver over all assets of both entities to prevent fragmented sales, maximize recovery, and maintain a court-supervised process, appointing the receiver nominated by the mortgagees.

The appellants appealed a trial decision concerning debts and damages arising from a dissolved business partnership.

The appeal raised two grounds: a credit allowed to the respondents by the trial judge and the calculation of interest on promissory notes.

The Court of Appeal upheld the trial judge's factual findings regarding the respondents' financial contributions, applying the principle of deference to findings of fact.

It also affirmed the application of Section 4 of the Interest Act, which limits interest rates on promissory notes that do not explicitly state an equivalent yearly rate, rejecting arguments based on prior oral understandings or customary rates.

The appeal was dismissed, and costs were awarded to the respondents.

In Phase III and IV of a trial concerning a Share Purchase Agreement, the court determined whether the 'Lower Threshold' used to calculate a deferred payment could be adjusted downwards due to the constructive dismissal of employees.

The court held that the plain wording of the agreement only permitted deductions from the Target EBITDA, not the Lower Threshold, and declined to imply a term.

On costs, the court ordered the plaintiff to repay $124,708.37 in fees advanced for a derivative action, awarded the defendants $10,000 for a production motion, and ordered the parties to bear their own costs for the main actions due to mixed success.

This appeal addressed whether an innocent purchaser for value obtains good title to property sold under a power of sale, despite the mortgagee's breach of section 22 of the Mortgages Act (failure to provide a default statement, suspending enforcement rights).

The lower court had set aside the transfer.

The Court of Appeal allowed the purchaser's appeal, holding that the "Safe Harbour Protections" under sections 35 and 36 of the Mortgages Act and section 99(1.1) of the Land Titles Act protect an innocent purchaser, providing good title upon registration.

The mortgagor's remedy for the mortgagee's non-compliance lies against the mortgagee, not the innocent third-party purchaser.

The moving party brought a motion for leave to appeal an order dated February 28, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $2,500 to the responding parties.

The Monitor in CCAA proceedings moved for an extension of the stay of proceedings, approval of its activities as described in its Fortieth Report, and approval of its fees and disbursements.

The motion was unopposed.

The court found that the applicants had acted in good faith and with due diligence, and that the extension was reasonable.

The court also approved the Monitor's activities and found the fees and disbursements to be reasonable.

The motion was granted.

The plaintiffs challenged the validity of a share transfer agreement entered into between two of the defendants, which resulted in one defendant becoming the majority shareholder of the corporation.

The court applied an objective test to determine the parties' intention to contract and found that the agreement contained all necessary elements of a contract.

The court rejected arguments that the agreement was merely an agreement to agree or that it was invalid due to technical deficiencies under the Business Corporations Act.

The share transfer agreement was declared valid and binding.

This is a costs decision following the permanent stay of the plaintiffs' main action and third-party proceedings.

The defendants, Paul Gribilas and Peter Gribilas, and the third party, J+W Foods Inc., sought costs as successful parties on dispositive motions.

The plaintiffs argued against costs, claiming a miscarriage of justice given the prior ruling that there were genuine issues for trial.

The court found no miscarriage of justice and applied the normal rule that costs follow the outcome, awarding partial indemnity costs to the Gribilas defendants and full indemnity costs to J+W Foods Inc. based on a contractual provision in a release.