Kevin D. Sherkin

The appellants appealed an Associate Judge's order dismissing their motion for a Certificate of Pending Litigation (CPL) against the respondents' matrimonial home.

The appellants alleged the transfer of the home from the respondent husband to his wife was a fraudulent conveyance to defeat creditors in an underlying action regarding a condominium development.

The Superior Court dismissed the appeal, finding the Associate Judge correctly applied the Grefford test, properly excluded an affidavit from a separate proceeding, and reasonably concluded the appellants failed to establish a high probability of success in the main action or that the balance of convenience favoured a CPL.

The appellant commercial unit owners sought leave to appeal and to set aside an arbitration award that dismissed their oppression claims against the respondent condominium corporation.

The appellants alleged the respondent failed to enforce its declaration regarding unauthorized business uses.

The Superior Court dismissed the motion, finding that the parties were bound by an arbitration agreement that precluded appeals.

The court also found no breach of procedural fairness, as the appellants had a full opportunity to present their case and the arbitrator provided logical and transparent reasons for concluding they failed to prove oppression.

The applicant sought to be relieved of its obligation to pay interest at the contract rate of 11.2% on a prompt payment determination, arguing that its payment of funds into court as security stayed the interest clock.

The Divisional Court rejected this argument, finding that the payment into court was merely security and did not vary the terms of the determination.

The court affirmed its jurisdiction to calculate the balance owing and ordered the applicant to pay the remaining interest accrued, less the income earned on the funds held in court.

Following the dismissal of its application, the applicant sought to make further submissions regarding recent amendments to the definition of 'written notice of lien' under the Construction Act.

The Divisional Court declined the request, finding that the amendments, which came into effect after the applicant's payment obligations arose, did not apply retrospectively.

The court also declined to provide general guidance on the new amendments, noting that such guidance should be reserved for cases where the issue is material to the result.

The applicant owner sought judicial review of an adjudicator's determination ordering it to pay the respondent contractor $685,574.91 under the prompt payment regime of the Construction Act.

The owner argued the adjudicator erred by rejecting its set-off claim for delay, misinterpreting notice holdback obligations, and conducting a procedurally unfair hearing.

The Divisional Court dismissed the application, finding the adjudicator reasonably concluded the contract did not support the delay claim and correctly held that actual notice of registered liens does not trigger notice holdback obligations.

The court also found no procedural unfairness or reasonable apprehension of bias.

The appellants challenged summary judgment enforcing a $2.1 million promissory note, arguing procedural unfairness, evidentiary error, and lack of consideration.

The court rejected all grounds and upheld enforceability against both appellants.

The moving party sought panel review after a chambers judge refused to lift an automatic stay pending appeal.

Applying the deferential review framework for s. 7(5) CJA panel review, the court found no error in principle or unreasonable result and dismissed the review motion.

The plaintiffs brought a motion seeking leave to issue a certificate of pending litigation (CPL) against a matrimonial home allegedly transferred by one defendant to his spouse in a fraudulent conveyance scheme.

The plaintiffs' claims as creditors were based solely on damages sought in a separate underlying action against the defendant and others.

The court applied the three-part test from Grefford v. Fielding and dismissed the motion, finding that the plaintiffs failed to demonstrate a high probability of success in the underlying action and that the balance of convenience favoured denying the CPL, particularly given that the current property owner was a stranger to the underlying dispute.

The applicant sought an order disqualifying and removing the arbitrator in a mediation-arbitration proceeding between a condominium corporation and a hotel corporation regarding disputes over cost-sharing, maintenance, and utilities.

The arbitrator disclosed that a proposed expert witness for the applicant had recently referred an unrelated litigation matter to the arbitrator's law firm, with the arbitrator tasked with carriage of that matter.

The arbitrator initially identified a clear appearance of conflict and proposed three options, including his resignation or waiver by both parties.

However, after the respondent objected to the arbitrator's withdrawal, the arbitrator reversed his position and refused to resign.

The court found that while a single business referral might not justify disqualification, the subsequent events—including the arbitrator's initial determination of a clear appearance of conflict, his reversal of position, and the manner in which he attempted to manage the conflict—gave rise to a reasonable apprehension of bias.

The application was granted and the arbitrator was disqualified.

This costs endorsement follows a successful application by Figaro Dominion Ltd. and Figaro Gate Ltd. for a permanent injunction restraining the developer from obstructing a laneway and parking behind the applicants’ units.

The court awarded the applicants $33,000 in costs against the developer and awarded the Church full indemnity costs of $68,076.53, also payable by the developer.

The decision addresses the scale and quantum of costs, the effect of settlement offers, and the application of an indemnity clause in a Crane Swing Agreement.

The Applicants, Apollo Technology Capital Corporation and Nobul Technologies Inc., sought orders regarding the conduct of the upcoming annual general meeting (AGM) of MediPharm Labs Corp., including the appointment of an independent chair, the appointment of TSX Trust as scrutineer, and a declaration regarding the validity of their Dissident Circular.

The Court declined to grant the requested relief, finding no evidence of impropriety or unfairness in the process established by MediPharm’s by-laws and confirming that the issues raised could be addressed after the AGM if necessary.

The Applicants, commercial landlords, sought a permanent injunction against the Developer and the Church regarding the use of a right-of-way (ROW) over a laneway behind their properties.

The court found that the Developer’s construction activities, including staging, parking, and storage, substantially interfered with the Applicants’ use of the ROW, particularly for parking and access by tenants and customers.

The court granted a permanent injunction restraining the Developer from obstructing the laneway and from allowing its workers to park directly behind the Applicants’ units, but declined to order removal of all construction equipment due to the stage of construction and delay in seeking relief.

This decision is an appeal by Alan Saskin from the order of Associate Justice Ilchenko, sitting as Registrar in Bankruptcy, refusing an absolute discharge and imposing conditions under the Bankruptcy and Insolvency Act.

The court reviews the procedural history, the evidence, and the legal standards for discharge, including the meaning of "moral blameworthiness" under s. 173(1)(a) and the duties of a bankrupt under s. 173(1)(o).

The appeal is dismissed, with the court finding no error in the Registrar's factual or legal conclusions.

The applicant, Vivian Dubrofsky, sought interim injunctive relief under section 248(3) of the Business Corporations Act (Ontario) to restrain her mother, Maryka Weisz, from withdrawing funds from Art Tile Limited except for ordinary course expenses, pending final disposition.

The court dismissed the motion, finding that while there was a serious issue to be tried and the applicant met the evidentiary threshold, she failed to establish irreparable harm.

The court ordered that the Westmore Property not be encumbered and that certain trust funds remain in trust, but otherwise dismissed the requested relief.

The plaintiff, Jaymat Limited, brought a motion for summary judgment against the defendants, Vivo Pizza Pasta Franchising Inc. and Pino Trichilo, for repayment of advances made in respect of several restaurant locations.

The court found that the advances, initially ambiguous as to whether they were loans or equity, were ultimately confirmed as loans by a promissory note signed in October 2021.

The court held that both defendants received consideration for signing the note, and that the note was enforceable.

Judgment was granted to the plaintiff for $2,100,000 plus interest, with leave to amend the corporate defendant’s name.

The decision concerns a dispute over the return of a deposit following the termination of an agreement of purchase and sale (APS) for a property, in the context of a receivership and subsequent refinancing.

The court orders the return of the deposit to 2557905 Ontario Inc., with interest only from the date the deposit was placed in an interest-bearing account, and denies the listing broker's request for costs from the deposit.

The applicant sought judicial review of an adjudicator's prompt payment determination under the Construction Act.

The Divisional Court adjourned the application because the applicant failed to serve notice on the Attorney General as required by s. 9(4) of the Judicial Review Procedure Act.

The court also directed the applicant to serve notice on the Ontario Dispute Adjudication for Construction Contracts (ODACC) due to issues concerning jurisdiction, process, and the public release of adjudication decisions.

The applicant moved for a stay of a prompt payment adjudication order under the Construction Act requiring it to pay approximately $685,000 to the respondent, pending an application for judicial review.

The respondent consented to the stay on the condition that the full amount be paid into court.

The applicant argued against this condition, citing irreparable harm and balance of convenience.

The Divisional Court found that the applicant failed to establish irreparable harm if the money was paid into court, and the balance of convenience strongly favoured requiring payment into court.

The stay was granted on the condition that the applicant pay $700,000 into court.

The appellant, 2557904 Ontario Inc. (the stalking horse bidder), appealed a motion judge's order that dismissed the receiver's motion for an approval and vesting order (AVO) and instead approved the debtor's (1000093910 Ontario Inc.) motion to redeem a first mortgage.

The Court of Appeal found the motion judge erred by not ensuring 255 received compensation for costs thrown away and by granting provisional enforcement of the order after an appeal notice was filed.

The appeal was allowed in part, varying the order to require the debtor to pay $300,000 in compensation to 255 and setting aside the provisional execution.

The court also ordered that if the refinancing transaction does not close, the AVO for 255 will be granted.

The Court of Appeal heard motions in an appeal concerning the receivership of a debtor's property.

The appellant, a successful bidder, appealed two lower court orders that terminated its Stalking Horse Agreement and approved the debtor's refinancing transaction.

The motion judge referred several issues to a panel, including the appellant's standing and right to appeal, and whether the lower court erred in terminating the agreement and granting provisional enforcement.

The Court of Appeal continued the stay of provisional execution of the lower court orders, emphasizing the importance of maintaining the integrity of court-approved sale processes, especially given the absence of reasons from the motion judge for his initial decision.