Jonathan L. Rosenstein

The respondent brought a motion to quash the appellants' appeal of an arbitral award regarding post-closing adjustments under a Share Purchase Agreement.

The respondent argued that the Joint Submission to Arbitrate governed the proceedings and did not provide a right of appeal, meaning leave was required under the Arbitration Act, 1991.

The appellants argued the original Share Purchase Agreement allowed appeals for 'manifest error'.

The court found that the Joint Submission to Arbitrate replaced the original agreement and governed the arbitration.

As it did not provide a right of appeal, and no leave was sought, the motion was granted and the appeal was quashed.

The plaintiff, a shell corporation, brought a motion for leave to issue a certificate of pending litigation (CPL) regarding a gas station it had agreed to purchase.

The transaction failed to close on the extended closing date, and the vendor subsequently sold the property to a third party.

The court dismissed the motion, finding no triable issue that the agreement of purchase and sale remained in effect.

Furthermore, the court held that the property was not unique, damages would be an adequate remedy, and the plaintiff's status as a shell corporation raised concerns about its ability to pay damages if unsuccessful at trial.

The defendants brought a motion to transfer the action from Hamilton to Toronto under Rule 13.1.02 of the Rules of Civil Procedure.

The action had already been ordered to be tried together with a companion action in Hamilton, and the motion was brought on the eve of trial.

The defendants argued they could not arrange for their expert to testify remotely in Hamilton.

The court found insufficient evidence to support this claim and concluded the defendants failed to establish that Toronto was a significantly better venue.

The motion was dismissed to avoid unfairly delaying the trial.

Following a successful motion for summary judgment and default judgment against the defendants, the plaintiffs sought substantial indemnity costs based on a term in the mortgage.

The court found the request for substantial indemnity costs premature, as the judgment might be paid without needing to enforce the mortgage.

The court awarded partial indemnity costs of $14,000 based on the parties' prior agreement, with directions for assessment if the parties could not agree on the total costs of the action.

This decision addresses a motion for security for costs arising from an aborted real estate transaction involving a gasoline station.

The plaintiff (899) had initiated an action for a Certificate of Pending Litigation (CPL) after the vendor (465) re-sold the property to another defendant (929), who obtained an indemnity.

The court found it premature to determine the ultimate disposition of the plaintiff's $100,000 deposit for the main action.

However, it allocated portions of the deposit ($40,000 for 929 and $25,000 for 465) as security for costs related to the pending CPL motion and other stages already encountered.

The plaintiff was deemed the more successful party on this security for costs motion and was awarded partial indemnity costs.

The plaintiff's action for $25 million in damages was dismissed in full against all defendants.

This endorsement addresses the defendants' claims for costs.

The court found the plaintiff's principal, Mr. Lagani, engaged in blameworthy conduct, including misleading the court, intimidating witnesses, and making unsubstantiated allegations of fraud, warranting substantial indemnity costs.

The court declined to award costs against Mr. Lagani personally due to lack of jurisdiction and insufficient notice.

The court also rejected the Berczy Group's claim for equitable set-off against funds owed to the plaintiff, stating set-off cannot be used as a "sword" to proactively claim funds.

Substantial indemnity costs were awarded to all defendants.

The Plaintiffs moved for summary judgment against Ashok and Usha Badhwar on a written guarantee secured by a mortgage, and for default judgment against Rochak Badhwar for an unpaid debt of $938,919.12.

The Badhwars raised the defence of non est factum, claiming they did not know what they were signing and that there was no consideration for the guarantee.

The court found no misrepresentation to support the non est factum defence, as conceded by Badhwar on cross-examination.

The defence of no consideration due to the guarantee being signed after loan monies were advanced was not considered because it was not properly pleaded.

Applying the principles from Hryniak v. Mauldin, the court found no genuine issue requiring a trial and granted judgment against Rochak and the Badhwars, allowing enforcement of the mortgage.

The defendants moved to set aside a default judgment in a mortgage enforcement action.

The court, on its own motion, stayed the entire proceeding pursuant to s. 106 of the Courts of Justice Act, finding that the plaintiff had initiated a second action for the same debt while an earlier, defended action was still pending.

The court deemed this an abuse of process, setting aside the default judgment and staying the current action in favour of the earlier one, reserving costs to be dealt with in the 2011 action.

The plaintiffs sought an order of contempt and a Mareva injunction against the defendants for failing to comply with a prior production order regarding $155,000 in missing unsecured loans.

The court found that the individual defendant had been evasive and failed to produce the required financial records, raising suspicions of spoliation and financial manipulation.

The court granted an interlocutory Mareva injunction freezing the defendants' assets and gave the individual defendant one final opportunity to comply with the production order before facing a renewed contempt motion.

A refusals motion arose during cross‑examination related to a pending summary judgment motion involving allegations that the responding party attempted to hire a hitman.

The moving party objected to questions seeking disclosure about a sealed matrimonial proceeding that allegedly involved Mareva and Anton Piller orders.

The court held the questions were irrelevant and constituted a fishing expedition aimed at embarrassing collateral matters and upheld the refusals.

The court also addressed complications arising from a witness’s alleged recantation affidavit and allegations of fabricated evidence, finding the procedural posture inappropriate for determining those issues.

In light of escalating collateral disputes and multiple related proceedings between the parties, the court stayed summary judgment motions and assumed case management over all related litigation to ensure proportional and efficient resolution.

The moving party law firm sought permission to withdraw as counsel of record for the plaintiffs mid-trial due to non-payment of legal fees and an alleged breakdown of the solicitor-client relationship.

The clients opposed the motion, arguing that withdrawal would cause significant prejudice.

The court dismissed the motion, finding that despite a prior consent agreement, the court retained discretion to refuse withdrawal.

The court held that the clients would suffer serious prejudice as it was not feasible for them to self-represent in complex commercial litigation, they had already paid substantial fees, and the law firm held security on the clients' properties.

Following a consent order dismissing the action against several defendants and striking the plaintiff's fresh as amended statement of claim, the successful defendants sought costs.

The court awarded full indemnity costs to a defendant lawyer due to unfounded allegations of fraud and breach of fiduciary duty.

Other defendants were awarded costs on a partial indemnity basis.

The court rejected the plaintiff's argument that costs should be limited or denied due to procedural steps or prior cost awards.

The plaintiff was ordered to pay substantial costs to the moving parties.

The plaintiffs invested $1.25 million USD in the defendants' rehabilitative shoe insert business, Barefoot Science, based on representations that the company owned its intellectual property.

The plaintiffs later discovered the principal defendant secretly owned the patents and had forged documents to protect his reversionary interest.

The court found the defendants liable for deceit, fraudulent misrepresentation, and oppression.

The court awarded the plaintiffs $2.2 million USD, varied the security agreements to capture the intellectual property, and declared the forged agreements void.

The plaintiffs brought a motion seeking an order that the parties jointly pay for the transcripts of a first trial, and that those transcripts be used at a new trial ordered by the Court of Appeal due to a reasonable apprehension of bias.

The defendants opposed the motion, arguing it was premature and reversed the evidentiary onus.

The court ordered the parties to jointly order and equally pay for the transcripts, but dismissed the balance of the motion, finding it premature to determine how the evidence should be tendered before the trial judge has reviewed the transcripts.

The parties entered into an agreement where the respondent would solicit new customers for the appellant in exchange for a 5% commission.

After the appellant terminated the agreement, a dispute arose over whether commissions were owed for ongoing sales to customers brought in by the respondent.

The motion judge granted summary judgment to the respondent, finding the agreement required ongoing payments.

The Court of Appeal dismissed the appeal, upholding the motion judge's contractual interpretation, rejecting the defence of non est factum because the appellant failed to read the agreement, and finding no denial of procedural fairness regarding the appellant's equitable set-off claim.

The appellant sued the respondent bank for breach of contract and negligence after his cousins fraudulently withdrew over $1 million from his account.

The trial judge dismissed the action, finding the appellant was bound by a Financial Services Agreement (FSA) that released the bank from liability if errors were not reported within 30 days.

On appeal, the appellant argued the trial judge provided insufficient reasons and misconstrued the FSA.

The Court of Appeal dismissed the appeal, holding that the verification agreement constituted a complete defence and the appellant failed to exercise reasonable care.

The respondent's cross-appeal on costs was allowed, directing the appellant to pay the trial costs.

The successful plaintiffs brought a motion seeking payment of approximately $1 million held by the Accountant of the Superior Court of Justice to partially satisfy their judgment.

The defendant opposed the motion, arguing that his law firm was entitled to a priority charge on the funds for $825,000 in unpaid legal fees pursuant to s. 34(1) of the Solicitor's Act.

The Court of Appeal dismissed the defendant's arguments, finding that the funds were not preserved through the instrumentality of the law firm and that the equities overwhelmingly favoured the plaintiffs.

The motion was allowed and the funds were ordered released to the plaintiffs.

The defendants moved to set aside a default judgment obtained after their statement of defence had been struck for failure to deliver an affidavit of documents.

Applying Rule 19.08(2) of the Rules of Civil Procedure and the governing three-part test, the court considered the promptness of the motion, the explanation for the default, and whether the defendants had an arguable defence on the merits.

The court found the defendants acted promptly after learning of the judgment and provided a reasonable explanation for their failure to respond to the motion to strike.

The defendants also advanced arguable defences concerning the execution of mortgage acknowledgements, the scope and validity of personal guarantees, and potential limitation period issues under the Limitations Act, 2002 and the Real Property Limitations Act.

In the interests of justice, the court set aside the noting in default and the default judgment and permitted amendments to the statement of defence.

Commercial neighbours disputed use of a shared laneway subject to a registered right of way.

On a contempt motion brought within an earlier application proceeding, the motion judge dismissed contempt but imposed detailed permanent injunctive restrictions governing future use of the laneway.

The Court of Appeal held that the judge materially changed an interlocutory order into a permanent injunction without adequate explanation, applied the wrong legal test, made factual findings not available on the conflicting motion record, and lacked jurisdiction to grant permanent injunctive relief absent an extant underlying proceeding.

The appeal was allowed, the injunctive provisions were set aside, appeal costs were awarded to the appellants, and motion costs were ordered in the cause.

The plaintiff sought an order staying or adjourning a scheduled trial pending the outcome of an appeal from an earlier interlocutory order dismissing an application related to enforcement of debt acknowledgments.

The plaintiff argued that Rule 63.01(1) of the Rules of Civil Procedure automatically stayed the proceeding, or alternatively that the court should exercise discretion under Rule 63.02(1) to stay the trial.

The court held that Rule 63.01(1) applies only to orders for the payment of money and therefore did not mandate a stay.

Considering the procedural history, repeated adjournments, and the age of the action, the court concluded that the interests of justice favored allowing the trial to proceed despite the pending appeal.