Kenneth Prehogan

The plaintiff judgment creditor brought a motion to enforce a prior judgment which found that the defendant debtor fraudulently conveyed his interest in a jointly-owned property to his wife.

The wife subsequently sold that property and purchased a new one.

The court ordered the sale of the new property, finding that the plaintiff was entitled to 50% of its net proceeds, including any increase in value.

The court declined to grant the wife additional time to obtain financing, balanced carrying costs against occupation rent, and awarded costs to the plaintiff.

This appeal arose from a residential real estate development joint venture that ended in dispute over profit overpayments and retained proceeds.

The trial judge found oppression, ordered an accounting, and made findings on set-off, piercing the corporate veil, pre-judgment interest, and costs.

The Court of Appeal found errors in the trial judge's premature dismissal of set-off claims, the personal liability findings against individuals (Rekha and Meena Sharma) by improperly piercing the corporate veil of non-parties or for insufficient reasons, and the finding of an ad hoc fiduciary duty.

The Court also determined that the immediate payment orders for net sale proceeds, the pre-judgment interest rate, and the costs award were premature given the outstanding accounting.

The appeal was allowed, setting aside parts of the trial judgment and the entire interest and costs judgment, and directing the Associate Judge conducting the accounting to determine interest and costs after the accounting is completed.

The appellant franchisee appealed a motion judge's decision denying an interlocutory injunction to prevent the termination of its franchise agreement.

The Divisional Court allowed the appeal, finding the motion judge's two-paragraph reasons were insufficient to permit meaningful appellate review as they failed to address the renewal clause, the factual disputes, or the RJR-MacDonald test.

The Court declined to decide the injunction on the merits, remitting it to a different judge.

The Court also held that the franchisor's undertaking not to terminate the agreement pending the determination of the injunction motion remained binding through the appeal process.

The applicant employer sought an interlocutory injunction to enforce non-competition and confidentiality clauses against a former employee who resigned and joined a competitor.

The employee had signed an employment agreement and later a shareholder agreement containing broader restrictive covenants.

The court dismissed the motion, finding the applicant failed to establish a strong prima facie case that the restrictive covenants were reasonable or enforceable, as they were overly broad and ambiguous.

The court also found no evidence of irreparable harm, as the applicant's claims of misused confidential information were speculative, and the balance of convenience favoured the employee.

The moving party sought leave to appeal a lower court order dated December 7, 2023.

The Divisional Court granted leave to appeal and ordered that the appeal be expedited.

The court also directed that the moving party's motion for interim relief be scheduled on an expedited basis before a single judge.

This decision addresses the issue of costs and pre-judgment interest following a 29-day trial concerning a dispute over the construction of a luxury custom home.

The court's prior reasons (2023 ONSC 2015) found the owners (the Kriesers) breached contracts with the builder/landscaper (the GES defendants), dismissing the Kriesers' claims and awarding outstanding amounts to the GES defendants on their counterclaim.

The GES defendants sought substantial indemnity costs and pre-judgment interest.

The court fixed pre-judgment interest, reducing it for periods of delay attributable to the GES defendants and the COVID-19 pandemic.

For costs, the court awarded the GES defendants partial indemnity costs up to their Rule 49 Offer to Settle date (November 22, 2016) and then blended costs thereafter, reflecting their complete success in the action and counterclaim.

The court declined to award substantial indemnity costs throughout, finding the Kriesers' allegations did not warrant it, and made minor adjustments for costs related to mid-trial adjournments and new counsel familiarization.

The Kriesers sued Gregory Evan Seligman and his companies (G.E.S. Construction Limited, Greenstone Gardens Inc., etc.) for breach of contract, breach of fiduciary duty, breach of duty of good faith, punitive damages, trespass, and intimidation related to the construction of a luxury custom home.

The defendants counterclaimed for unpaid accounts.

The court found that the Kriesers breached the construction and landscaping contracts by failing to make timely and sufficient payments.

All claims brought by the Kriesers were dismissed, and the counterclaims by G.E.S. Construction Limited and Greenstone Gardens Inc. for outstanding amounts were granted.

The plaintiffs brought a motion to declare three judgment debtors as vexatious litigants and to prohibit them from bringing further motions without leave, or alternatively, to require them to post security for costs.

The motion was prompted by the judgment debtors' attempt to set aside a 2014 trial judgment based on allegedly new evidence.

The court found that two of the judgment debtors had a history of abusive litigation conduct, including re-litigating decided issues and failing to pay costs awards.

The court declared those two debtors vexatious litigants and ordered all three to post security for costs before pursuing any further motions to set aside the judgment.

The moving parties brought a motion for leave to appeal the order of Chalmers J. dated March 28, 2023.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party, fixed in the amount of $3,000 all-inclusive.

The moving party, respondent on the appeal, brought a motion for security for costs under Rule 61.06 of the Rules of Civil Procedure.

The court found that the appeal was frivolous and vexatious, the appellant had insufficient assets in Ontario, and there was a history of abusing the court process and failing to pay outstanding judgments.

The motion was granted, and the appellant was ordered to post security for costs of $43,584.21, failing which the appeal would be dismissed.

The moving party, Michael Shtaif, was unsuccessful on a motion seeking to declare an assignment of judgment and certificates of judgment invalid.

The responding party sought full indemnity costs of $35,376.01, arguing the motion was an abuse of process and a collateral attack on prior decisions.

The court found the moving party's conduct amounted to an abuse of process but did not rise to the rare and exceptional level required for full indemnity costs.

The court awarded substantial indemnity costs fixed at $25,278.21.

This is an appeal from a summary judgment concerning the interpretation of a Share Purchase Agreement (SPA) and related employment agreements.

The dispute arose after the appellants (purchasers of a business) furloughed one of the respondents (sellers/employees) due to the COVID-19 pandemic, which the respondents asserted was a constructive dismissal.

The SPA included an "Accelerated Provision" for a capital payment if an employee was terminated without cause, and an "Unprofitable Quarter Provision" allowing termination for cause without penalty.

The motion judge found constructive dismissal without cause, triggering the Accelerated Provision.

The Court of Appeal dismissed the appeal, upholding the motion judge's interpretation that the appellants had not exercised their option to terminate for cause under the Unprofitable Quarter Provision, and that their actions constituted a termination without cause, thereby triggering the payment.

The court emphasized deference to the motion judge's contractual interpretation and rejected arguments of commercial absurdity.

The self-represented defendant brought a motion to set aside two certificates of judgment and declare the assignment of the judgment from the original plaintiff to its successor invalid.

The court found that an order to continue was not required post-judgment and that the defendant's challenge to the assignment was a collateral attack on prior decisions of the Superior Court and Court of Appeal.

The court also held that the issuance of certificates of judgment is a purely administrative function, and there was no basis to set them aside.

The motion was dismissed.

This decision addresses interest and costs following a trial concerning a defunct joint venture.

The plaintiffs were largely successful at trial, establishing misappropriation of funds by the defendants and lifting the corporate veil.

The court awarded pre-judgment interest at 8% (non-compounded) from January 1, 2012, to November 2, 2021, with an exclusion period for plaintiff's delay.

Post-judgment interest was set at the Courts of Justice Act rates.

The court awarded substantial indemnity costs to the plaintiffs, reduced from the claimed amount due to some divided success and costs incurred by defendants from mid-trial document production.

The court found the defendants' conduct, including meritless allegations of dishonesty and introducing new unpleaded theories at trial, justified the substantial indemnity costs.

Following a successful appeal that set aside a summary judgment and remitted the matter for trial, the Court of Appeal received written submissions on the costs of the summary judgment motion.

The appellant sought $100,000 on a partial indemnity basis, while the respondent argued for a lower amount due to alleged duplicative steps.

The Court fixed the costs of the summary judgment motion payable to the appellant at $80,000 inclusive of disbursements and HST.

The appellants, Eugene Bokserman and Elena Krasnov, appealed a summary judgment that found a fraudulent conveyance of their jointly held home and awarded costs.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the conveyance was fraudulent, the refusal to admit fresh evidence, the determination that the action was not statute-barred, and the substantial indemnity costs award.

The court affirmed the motion judge's ability to assess credibility and weigh evidence in a summary judgment context and found no error in the application of the Fraudulent Conveyances Act or the Limitations Act.

This is a costs endorsement following a come-back motion concerning ex parte injunctions.

The applicant successfully continued a Family Law Act preservation order against her former spouse but failed to continue a Mareva order against his family members and corporate affiliates.

The court determined costs based on divided success, reasonableness of conduct, and settlement offers, ultimately awarding the applicant costs against the former spouse and the other respondents costs against the applicant, with deferred payment terms for the applicant.

Jack Ganz Consulting Ltd. (JGC) appealed a summary judgment dismissing its breach of contract and dependent contractor claims against Recipe Unlimited Corporation (Cara).

JGC alleged Cara breached a 2006 consulting agreement, including a stock option provision, and failed to provide reasonable notice upon termination.

The motion judge found JGC waived an auto-renewal clause, terminating the agreement in 2010, and that no other written agreement replaced it.

The Court of Appeal found the motion judge erred in finding a unilateral waiver for no consideration and that there was a genuine issue for trial regarding the terms governing the parties' relationship after 2008, given the uncertainty in the record and the parties' conduct.

The appeal was allowed, the summary judgment set aside, and the matter remitted for trial.

The plaintiffs and the deceased Madan Sharma were involved in a joint venture to build and sell residential homes.

Following Sharma's death, disputes arose over the winding up of the joint venture, with both sides alleging overpayment of management fees and misappropriation of funds.

The court found that the defendants misappropriated $1,586,584.83 from the sale of a joint venture property by directing the proceeds to a non-joint venture corporation, and pierced the corporate veil to hold the individual defendants personally liable.

The court dismissed the defendants' counterclaim for misappropriation but found that the plaintiff's post-2008 record keeping was sufficiently unreliable to constitute oppression, ordering a formal accounting to determine the final state of accounts.

The plaintiff franchisee brought a motion for an interlocutory injunction to prevent the defendant franchisor from acting on a Notice of Expiration of a restaurant franchise agreement.

The franchise agreement explicitly stated there was no right to renew after the initial 10-year term.

The plaintiff argued it was entitled to an extension based on alleged oral representations and breaches of the duty of fair dealing under the Arthur Wishart Act.

The court found the requested relief was a mandatory injunction requiring a strong prima facie case.

The court dismissed the motion, finding the plaintiff's case was weak, any potential remedy would likely be in damages rather than an order compelling renewal, and the plaintiff failed to establish irreparable harm.