Joseph Markin

The appellants, a corporation and its sole shareholder, appealed a Small Claims Court judgment holding them jointly and severally liable for unpaid legal fees owed to the respondent law firm.

The Divisional Court dismissed the appeal, finding that the individual appellant had personally retained the firm through his conduct.

The court also upheld the trial judge's decision to pierce the corporate veil due to the corporation's undercapitalization and found that the respondent was entitled to an oppression remedy as a creditor whose reasonable expectation of payment was unfairly disregarded.

The award of damages in Canadian dollars, despite an initial agreement to pay in barter dollars, was upheld based on evidence of a 1:1 equivalency.

Competing summary judgment motions arose from a debt restructuring in which the moving parties released a collateral mortgage and personal guarantees in exchange, in part, for two off-plan Dubai condominium units.

The court held that the amended agreement, read together with the incorporated reservation forms and Dubai law evidence, required that the purchase price for the units be paid into escrow.

The responding parties used closing documents that falsely represented the escrow accounts had been funded when no such funds existed, thereby inducing the release of valuable Canadian security.

Applying the summary judgment framework and the test for fraudulent misrepresentation, the court found no genuine issue requiring trial and granted judgment to the moving parties.

The court also ordered substantial indemnity costs, with further submissions on interest and costs quantum.

The applicants sought to set aside an arbitration award dismissing their claims for unpaid contractor fees, arguing the expedited arbitration rules violated the Arbitration Act by denying them a fair hearing.

The respondents argued the application was out of time and that the parties had agreed to the arbitration rules in their contract.

The Superior Court of Justice dismissed the application, finding the applicants had expressly agreed to the arbitration rules and that the application was brought beyond the strict 30-day time limit under section 47 of the Arbitration Act, which the court had no authority to extend.

The defendant university moved to set aside a default judgment, writ of execution, and garnishment arising from a dispute over a student recruitment and satellite campus arrangement.

Applying the five-factor test for setting aside default judgment, the court held that the defendant had shown an arguable defence, particularly because the judgment had been based on a liquidated contractual claim rather than the pleaded fiduciary duty theory emphasized by the plaintiff.

The court also found a genuine issue for trial as to whether the parties' relationship was contractual or fiduciary in nature.

The motion was granted, the garnished funds were to be returned except for $52,000, and costs were awarded to the defendant.

The appellant moved for a stay pending appeal of a Small Claims Court order that refused to set aside a judgment made after she failed to attend trial.

The appellant also sought to stay the enforcement of a writ of seizure and sale.

The Divisional Court dismissed the motion, finding that the appellant failed to meet the first branch of the RJR-MacDonald test because there was no serious issue to be decided.

The appellant had not complied with Rule 17(5) of the Small Claims Court Rules, which requires a motion to set aside a judgment to be brought within 30 days of becoming aware of it.

The plaintiff lender moved for summary judgment dismissing a counterclaim and for judgment on two mortgage loans arising from a construction financing arrangement.

After a mini-trial, the court held the written loan agreement did not require the lender to fund monthly interest payments from future advances and did not oblige the lender to make further advances after the borrowers defaulted.

The court rejected allegations that the mortgage broker bound the lender to any side agreement or that the lender owed a duty to protect the borrowers from entering a high-risk loan they could not carry.

The counterclaim was dismissed, the stay on the mortgage judgment was lifted, and judgment, possession, and substantial indemnity costs were granted to the lender.

The applicant brought a motion to set aside an order quashing his application for judicial review of an arbitrator's decision upholding his termination.

The applicant argued he was denied procedural fairness because his union failed to provide a Somali interpreter at the arbitration hearing, which he claimed fell under the deficient representation exception to the rule against individual standing.

The Divisional Court dismissed the motion, finding no error in the motion judge's conclusion that the evidence did not support the need for an interpreter and noting the applicant's proper remedy was before the Ontario Labour Relations Board.

The appellants appealed an order striking their negligence claim against former criminal defence counsel as an abuse of process.

The court held the civil action was plainly a collateral attack on criminal convictions that had remained undisturbed on appeal.

To succeed, the appellants would have had to prove that, but for counsel's negligence, the accused would have been acquitted, thereby re-litigating the criminal charges and undermining the integrity of the adjudicative process.

The court held that allegations of ineffective assistance generally should be pursued by direct attack within the criminal proceeding, not through a separate civil action.

The appeal was dismissed with costs.

The appellant challenged the dismissal of his action alleging misrepresentations in connection with the purchase of interests in two closely held businesses, and also challenged partial allowance of counterclaims by the respondents.

The Court of Appeal held that the trial judge's findings were grounded in credibility, were well supported by the record, and attracted deference.

It rejected the argument that one respondent breached the share purchase agreement by selling an interest he did not own, finding both parties understood the transaction as a sale of that respondent's interest.

It also upheld a damages award reflecting another respondent's continuing ownership interest after the appellant operated and dissolved one company without accounting to that shareholder.

The appeal was dismissed with costs.

The applicant employee sought judicial review of an arbitration award that dismissed his grievance regarding his termination for cause.

The respondent union and employer brought a motion to quash the application on the basis that the employee lacked standing.

The Divisional Court granted the motion to quash, finding that the union was the exclusive bargaining agent and the employee had no independent right to seek judicial review.

The court rejected the employee's argument that he was denied natural justice due to the lack of an interpreter at the arbitration, noting that he was fluent in English and that any complaint regarding the union's representation should have been brought before the Ontario Labour Relations Board as a breach of the duty of fair representation.

The purchaser appealed a trial decision finding that open web steel joists were not part of the structural steel included in an agreement of purchase and sale for a commercial property.

The Court of Appeal allowed the appeal, finding that the trial judge erred by relying on extraneous documents to interpret the agreement.

The Amending Agreement and the documents specifically referenced within it, including the purchase order and structural drawings, clearly included open web steel joists.

As the vendor failed to provide the joists, they breached the agreement, and the funds held in trust were ordered returned to the purchaser.

Supplementary endorsement addressing distribution of funds held in trust following a prior decision determining entitlement between vendor and purchaser in a real estate transaction.

The court had previously invited written submissions regarding entitlement to GST included in the purchase price and the cost of steel plates allegedly lost after delivery to the job-site.

After reviewing the additional submissions, the court concluded that the purchase price under the agreement of purchase and sale was $500,000 plus GST and that GST had been properly paid.

The court also accepted that $7,500 should be deducted for the steel plates.

The court directed the trust funds to be distributed primarily to the vendor with a smaller amount to the purchasers and added a corporate purchaser nunc pro tunc as a co‑plaintiff/applicant.

A commercial dispute arose following a land purchase agreement that included a separate agreement for the purchase of custom-fabricated structural steel, with $525,000 held in trust pending verification of the steel.

The purchaser claimed entitlement to the trust funds after failing to verify the steel within the contractual period, arguing that a prior settlement had been reached and that verification could not reasonably be completed.

The court found that no binding settlement was reached during negotiations between the parties.

However, the court held that the purchaser failed to act reasonably and in good faith in attempting to complete verification, particularly by refusing a reasonable proposal to share the cost of reproducing fabrication drawings necessary for verification.

The vendor was therefore entitled to most of the trust funds, subject to a possible adjustment relating to GST and steel plate costs.

The plaintiff brought an action for damages alleging the defendants made false representations regarding the financial status of two courier companies he invested in and later purchased.

The defendants counterclaimed for unpaid amounts under a share purchase agreement and for the value of retained shares.

The court dismissed the plaintiff's claim, finding he was an experienced businessman who had the opportunity to conduct due diligence and failed to prove any misrepresentations.

The court granted the defendants' counterclaims in part, ordering the plaintiff to pay $50,000 to Saini for the outstanding balance of the share purchase agreement, and $50,000 to Stanford for his unabandoned share interest in the companies.

The appellant appealed the judgment of the motion judge.

The Court of Appeal found no error in the motion judge's reasons and dismissed the appeal, awarding costs to the respondents on a partial indemnity basis.

The appellant appealed a conviction for criminal harassment under s. 264 of the Criminal Code.

The appeal argued that the trial judge erred by refusing an adjournment after the Crown indicated it would seek to amend the Information to expand the timeframe of the alleged conduct, and that the refusal created a reasonable apprehension of bias.

The appellant also challenged the finding that the actus reus and mens rea of criminal harassment were proven beyond a reasonable doubt.

The court held that decisions concerning adjournments attract deference and found no prejudice because disclosure of the earlier incidents had already been provided and the evidence would have been admissible regardless of the amendment.

The court further concluded that the trial judge correctly assessed the evidence establishing the complainant’s reasonable fear and the accused’s intent.

The conviction appeal was dismissed.

The appellants appealed a motion judge's decision to strike out their statement of claim against the Law Society of Upper Canada under Rule 21.

The appellants alleged the Law Society was liable in negligence for failing to take appropriate action against lawyers who acted for other parties.

The Court of Appeal dismissed the appeal, finding that the claim was precluded by the Supreme Court of Canada's decision in Edwards v. Law Society of Upper Canada due to a lack of proximity between the appellants and the Law Society.

The appellant appealed a decision of the Summary Conviction Appeal Court dismissing his appeal from a conviction for sexual assault.

The appellant argued that his guilty plea was equivocal.

The Court of Appeal dismissed the appeal, finding no error in the lower court's decision, as the appellant had twice unequivocally acknowledged the accuracy of the facts supporting the constituent elements of the offence prior to his plea.

The appellants appealed a motion judge's decision regarding the tolling of the limitation period for a solicitor's negligence claim arising from a criminal proceeding.

The Court of Appeal allowed the appeal, holding that it is artificial to distinguish between the trial phase and the sentencing phase when addressing allegations of solicitor's negligence.

The limitation period did not begin to run until the trial was complete and the sentence was imposed.

The applicant brought a motion to set aside an order quashing his application for judicial review of a family arbitration award.

He argued that recent amendments to the Family Law Act meant family arbitrators exercise a statutory power of decision, giving the court jurisdiction under the Judicial Review Procedure Act.

The Divisional Court dismissed the motion, affirming that family arbitrators derive their authority from private consensual agreements, not statute, and therefore do not exercise a statutory power of decision.