Jonathan L. Rosenstein

The moving party sought an order at the commencement of trial declaring entitlement to enforce notarized debt acknowledgments against the respondents as if judgments had already been obtained, and requiring payment of the amounts stated in those instruments.

The motion relied on a prior decision determining that the applicable limitation period for enforcement of German Submissions for Compulsory Enforcement was 30 years and argued that the earlier ruling created issue estoppel preventing the respondents from contesting certain matters at trial.

The court held that the prior motion addressed only the applicable limitation period and did not finally determine questions regarding the identity of the holder of the acknowledgments, the validity of their assignment, or the amount owing.

Because those issues were not essential to the earlier decision and were not conclusively determined, the doctrine of issue estoppel did not apply.

The respondents were therefore entitled to raise those issues at trial.

The plaintiff advanced funds to a partnership operated by relatives pursuant to promissory notes and personal guarantees, including a $1,000,000 loan with an option to convert to equity.

The defendants asserted that the plaintiff elected to convert the loan to equity through a signed authorization, while the plaintiff alleged the document was forged.

The court found the authorization document to be a forgery and held that the plaintiff remained a lender entitled to repayment under the promissory note and guarantees.

The plaintiff also sued a bank for releasing funds from his account without authorization.

The court held that the plaintiff was bound by verification provisions in the bank’s Financial Services Agreement, which relieved the bank of liability due to the plaintiff’s failure to review and report account discrepancies.

Multiple defendants moved under Rules 21 and 25 of the Rules of Civil Procedure to strike a lengthy statement of claim alleging fraud, conspiracy, breach of fiduciary duty, breach of trust, and unjust enrichment arising from unpaid German loan obligations allegedly concealed through asset transfers and trusts.

The court held that the pleading failed to set out material facts supporting the elements of the alleged causes of action and largely consisted of vague allegations and legal conclusions.

Several claims were struck as disclosing no reasonable cause of action, though the plaintiff was granted leave to amend.

The court emphasized the requirement to plead material facts and provide full particulars for allegations of fraud and related claims.

The plaintiff was also ordered to properly produce loan documents referenced in the pleadings.

Following the dismissal of the plaintiffs' motion for leave to appeal a security for costs order, the defendants sought costs.

The plaintiffs argued costs should be reserved to the trial judge.

The court rejected this argument, noting this was a second attempt to appeal the security for costs order and warranted cost consequences.

The court awarded costs of $2,500 to each of the two responding defendants.

The appellants appealed an order dismissing their motion for partial summary judgment in an Ontario action seeking to enforce German submissions to compulsory enforcement arising from guarantees of bank loans.

The central issue was whether those instruments were foreign judgments for Ontario limitations purposes or were governed by German substantive law under conflict of laws principles.

The court held the instruments were not German judgments and that German law supplied the applicable 30-year limitation period, with the result that the claims were not statute-barred.

The court also rejected the argument that the motion judge had recast the pleadings and dismissed the motion to admit fresh evidence.

The plaintiffs sought leave to appeal an order upholding a Master's decision requiring them to post further security for costs.

The plaintiffs, who were non-residents and not impecunious, argued the judge misapplied the 'good chance of success' test by conflating it with the summary judgment test and failing to define it.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the order and holding that the Master and the appeal judge had properly applied the established legal test.

The defendants moved to strike the plaintiffs’ pleadings for failure to comply with a production order requiring an accounting of revenues and supporting documents relating to the exploitation of certain patented shoe insole technology.

The plaintiffs had initially failed to meet the deadline and their early attempts at compliance were deficient, but they later produced extensive supplementary disclosure and accounting materials.

The court held that although the plaintiffs’ record‑keeping was poor, they had made earnest efforts and had achieved substantial compliance with the production order.

The court declined to exercise its discretion to strike the pleadings, emphasizing the preference for deciding civil disputes on their merits and the absence of wilful non‑compliance.

The plaintiffs’ cross‑motion seeking leave to revive a previously adjourned summary judgment motion was also dismissed because the action was imminently scheduled for trial and the motion could disrupt the trial schedule.

The applicant brought an application for directions under Rule 75.06(1) of the Rules of Civil Procedure to challenge the validity of a will and codicils based on undue influence and lack of capacity.

The respondents moved for summary judgment to dismiss the application, arguing the underlying claims were statute-barred.

The court dismissed the motion for summary judgment, holding that such a motion is generally not available in an application unless specifically authorized by a procedural order, and that the court could not achieve a full appreciation of the evidence at this early stage.

The appellants appealed an order dismissing their motion to discharge a certificate of pending litigation registered against their residential property.

The respondents had obtained the certificate in the context of an oppression remedy claim involving a corporate dispute.

The Divisional Court allowed the appeal and discharged the certificate, finding that the motions judge erred in law by applying a broad equitable discretion instead of determining whether there was a reasonable claim to an interest in land.

The court concluded that the pleadings did not demonstrate a reasonable claim to an interest in the land, as the claims were for damages and corporate remedies, not for an interest in the property itself.

The defendants brought a partial summary judgment motion arguing that claims seeking enforcement in Ontario of German “Notarized Debt Acknowledgments” were barred by limitation periods.

The court characterized the acknowledgments as foreign agreements creating unilateral covenants permitting enforcement without a prior German court judgment, rather than foreign judgments.

Applying conflict-of-laws principles, the court held that German limitation law governed.

Under the German Civil Code, enforceable documents such as the acknowledgments are subject to a 30‑year limitation period.

As a result, the claims were not statute‑barred and the motion was dismissed.

The applicant brought a motion for partial summary judgment in an estates application seeking declarations that a will and codicils were invalid due to undue influence and that certain joint assets formed part of the estate.

The motion sought a determination that any claims against the respondents regarding their handling of assets received by right of survivorship or as designated beneficiaries were barred by operation of the Limitations Act, 2002.

The respondents argued that the application implicitly sought relief against them, including declarations of breach of fiduciary duty and an order requiring remedy.

The court expressed concerns regarding the appropriateness of the motion in the context of the relief sought in the application.

The court directed the parties to appear at a further hearing to address those concerns before determining the motion.

The defendants sought security for costs against non-resident plaintiffs in two related civil fraud actions involving failed investment schemes.

Following an appeal, the matter was remitted to reconsider whether the plaintiffs had a “good chance of success” on the merits, which could weigh against ordering security for costs.

The court reviewed extensive evidentiary allegations concerning the role of a law firm and its partner in facilitating investment transfers connected to the alleged fraud.

The court held that while the record raised genuine issues for trial, the plaintiffs failed to demonstrate a “good chance of success,” particularly regarding whether the defendants owed a duty of care to non-client investors or participated in the alleged fraud.

Security for costs was therefore ordered on the same terms previously imposed.

At a Commercial List case conference in a civil action involving debt obligations and guarantees, the court addressed procedural scheduling and evidentiary issues relating to an upcoming summary judgment motion.

The principal issue on the anticipated motion was whether the plaintiff’s claims were statute‑barred under applicable limitation laws, potentially governed by German law.

The court directed the parties to produce supplementary expert reports addressing the applicable foreign law and its limitation periods, particularly in light of allegations of fraudulent concealment that might affect discoverability.

The court also addressed potential hearsay objections to affidavit evidence and ordered preservation and production of relevant documents for the period 1996–2004.

The plaintiffs appealed an order of a case management master requiring them to post additional security for costs in complex civil litigation.

The plaintiffs were non-residents of Ontario and did not claim impecuniosity, but argued that the strength of their claims justified denying security for costs.

The court held that the master applied the wrong legal standard by requiring the plaintiffs to show an "overwhelming likelihood of success" rather than the correct standard of a "good chance of success" when assessing the merits under Rule 56.01 of the Rules of Civil Procedure.

Because this constituted an error of law, the appeal was allowed in part and the matter was remitted to the case management master for reconsideration using the proper standard.

The plaintiff sought interim and interlocutory injunctions restraining the defendant from continuing an alleged trespass and requiring removal of construction equipment, fencing, refuse bins, and a large stockpile of topsoil from its property.

The dispute arose from a development arrangement where the defendant was permitted under a letter agreement to operate a sales or construction trailer on a commercial block pending reconveyance.

The defendant argued the provision created a lease granting broader rights of occupation, or alternatively that any misuse constituted only a breach of contract.

The court held the agreement granted only a limited licence to place and operate a trailer and did not confer exclusive possession or a leasehold interest.

The defendant’s additional uses constituted deliberate and continuing trespass warranting injunctive relief, and the RJR‑MacDonald test was satisfied in any event.

The appellant appealed an order dismissing his 1995 action for delay.

He sought to introduce fresh evidence, arguing he was denied a fair opportunity to present his case as a self-represented litigant at the motion.

The Court of Appeal dismissed the motion to admit fresh evidence, finding the evidence was available at the time of the hearing and the motion judge had afforded the appellant an opportunity to make his case.

The Court also upheld the dismissal for delay, noting the action was based on a 1989 transaction, there was inexcusable delay, and the respondent would suffer prejudice due to a deceased key witness and faded memories.

The appellant appealed the dismissal of her unjust enrichment claim against her deceased husband's mother.

The appellant and her husband had lived rent-free on the mother's farm and made extensive improvements to it.

After the husband's death, the appellant moved out and the mother sold the farm, keeping the proceeds.

The Court of Appeal upheld the trial judge's findings that the improvements were largely paid for by the husband's company, that the benefits of living rent-free offset the value of the improvements, and that the improvements were made voluntarily and in self-interest, providing a juristic reason for the mother to retain the benefit.

The appellant appealed a Master's order dismissing his motion to add himself, in his capacity as Estate Trustee, as a plaintiff in his personal action against the respondent.

The Master had ruled the claim was statute-barred.

The Divisional Court allowed the appeal, finding the Master erred in calculating the limitation period.

The court held that the limitation period was extended because the parties had engaged in mediation and because the respondent had delayed renouncing her right to act as Estate Trustee, which prevented the appellant from being appointed earlier.

The plaintiff appealed a Master's decision dismissing her motion to amend her statement of claim and add a new party defendant.

The plaintiff originally pleaded and swore in an affidavit for a Certificate of Pending Litigation that she advanced $150,000 as a loan secured by a mortgage.

Five years later, she sought to amend her claim to allege the funds were an equity investment.

The Divisional Court upheld the Master's decision, finding that the proposed amendment was untenable at law and an abuse of process because it fundamentally contradicted the plaintiff's prior sworn evidence upon which she had obtained relief.

The appellants appealed the denial of their motion to set aside a noting in default.

The Court of Appeal found that the motion judge erred by focusing solely on whether the appellants had formed an intent to defend before the deadline, failing to consider the full factual matrix, including the appellants' fear of attorning to the jurisdiction.

Finding no evidence of an intent to flout the rules, no inordinate delay, and no prejudice to the respondent, the Court allowed the appeal and set aside the noting in default.