Kevin D. Sherkin

The appellants, found in civil contempt for disobeying a court order regarding property use and trespassing, appealed their $1,000,000 fine.

They sought to introduce fresh evidence, alleging ineffective assistance of trial counsel.

The Court of Appeal dismissed the application for fresh evidence, finding it lacked due diligence and would not have affected the outcome.

The court upheld the sentencing judge's findings that the contempt was flagrant, protracted, deliberate, and profitable, and that the fine was fit, dismissing the appeal.

This decision addresses a request to coordinate two appeals arising from a single lower court decision that dismissed defamation actions under anti-SLAPP legislation.

The appellants sought separate hearings, while the respondents requested the appeals be heard together.

The appeal management judge ordered the appeals to be heard concurrently, emphasizing judicial economy and efficiency, and finding no principled reason to hear them separately despite the appellants' arguments regarding factual and legal dissimilarities between the two cases.

This endorsement addresses two procedural issues arising from the appellants' motion to adduce fresh evidence on appeal, specifically concerning an allegation of ineffective assistance of counsel.

The first issue involved the production of two recordings made by former counsel, which the appellants argued were inadmissible due to a breach of professional conduct rules.

The court affirmed that a breach of professional conduct rules does not automatically render evidence inadmissible in civil proceedings and ordered the production of the recordings, subject to conditions for their use.

The second issue concerned the standing of former counsel to file evidence and a factum.

The court granted former counsel limited leave to intervene as an added party, allowing them to file a responding factum on the specific issue of whether ineffective assistance of counsel is a valid ground of appeal in civil proceedings.

The defendants, having successfully obtained an order discharging a Certificate of Pending Litigation (CPL), sought substantial indemnity costs of $31,122.07.

The plaintiffs argued for a much lower award.

The court found that the plaintiffs had breached their obligation for full and fair disclosure of material facts on their initial ex parte motion to register the CPL.

Citing this material non-disclosure as an exceptional circumstance, the court awarded the defendants substantial indemnity costs as requested, payable jointly and severally by the plaintiffs.

The defendants moved to set aside a certificate of pending litigation (CPL) registered against a property, alleging the plaintiffs failed to make full and frank disclosure on their ex parte motion and did not satisfy the test for CPL registration.

The court found the plaintiffs failed to disclose material facts, including a share pledge and purchase agreement, and that they lacked a direct interest in the property.

The court granted the defendants' motion, discharging the CPL, emphasizing the duty of full disclosure on ex parte motions and the absence of a triable issue regarding the plaintiffs' interest in the land.

Following a successful motion for default judgment against two defendants in a class action regarding a syndicated mortgage, the plaintiffs sought costs on a substantial or full indemnity basis.

The court declined to award elevated costs, finding no reprehensible conduct or special circumstances to justify a punitive costs award.

Costs were awarded to the plaintiffs on a partial indemnity basis, fixed at $35,000 all inclusive.

The appellant, Barry James Gallant, appealed a motion judge's finding that the respondent, Miranda Bailey's, obligations as a guarantor on a mortgage loan ended on June 28, 2014, and that she was not bound by subsequent mortgage extensions made without her notice.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error.

The motion judge had reasonably interpreted the mortgage documents, including standard terms, the mortgage agreement, and the mortgage schedule, to conclude that the guarantee's duration was limited to the 12-month period set out in the mortgage agreement, thereby modifying the standard terms.

The plaintiffs, Valerie Barkley and Ronald Beaupre, brought a motion for default judgment against Nicholas Dookhie and Diane Chetram, who were noted in default in a class action concerning losses from a syndicated mortgage investment.

The court found Dookhie and Chetram liable for negligence, negligent misrepresentation, and breach of fiduciary duty, having failed to meet the standard of care for mortgage brokers by not performing due diligence, misrepresenting the investment as safe, and failing to assess client suitability or provide required disclosures.

The motion was granted, awarding the subclass of 11 class members $434,017.40 plus pre- and post-judgment interest at rates of 12% or 9% depending on the investor's referral source.

The plaintiff, 385277 Ontario Ltd., sought costs incurred on a contempt motion where the defendants were found to be in contempt of two previous court orders.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure, including the importance and complexity of the matter, counsel's experience, hours spent, proportionality, and the defendants' conduct.

Given the defendants' wilful defiance of court orders and their failure to make costs submissions, the court found the plaintiff's requested costs reasonable and proportionate.

Costs were awarded on a partial indemnity basis, with leave for the plaintiff to seek a top-up to substantial or full indemnity after trial.

This urgent motion before the Court of Appeal addressed whether a non-party, John Kavanagh, had an automatic right to appeal or should be granted leave to appeal two approval and vesting orders related to the sale of properties in a mortgage enforcement and insolvency proceeding.

The Receiver brought the motion to prevent automatic stays of the property sales.

The court found no automatic right of appeal under s. 193(c) of the Bankruptcy and Insolvency Act (BIA) because the orders were procedural and no loss exceeding $10,000 was demonstrated.

The court also denied leave to appeal under s. 193(e) of the BIA, concluding that the issues raised were not of general importance, lacked prima facie merit, and granting leave would unduly hinder the insolvency proceedings.

Consequently, Kavanagh's notices of appeal were quashed, and his motions for leave to appeal were dismissed, ensuring the property sales could proceed without automatic stays.

The defendant condominium corporation brought a motion to stay the plaintiffs' action against it pending mediation and arbitration under the Condominium Act, 1998 and the Arbitration Act, 1991.

The plaintiffs opposed the stay, arguing that the claims against the condominium corporation were intertwined with the claims against the developer and that bifurcating the proceedings would cause duplication and inconsistent verdicts.

The court found that while bifurcation was unreasonable and risked multiplicity, recent Supreme Court of Canada jurisprudence mandated a stay under section 7 of the Arbitration Act, 1991, as no statutory exceptions applied.

The motion to stay was granted.

The defendant 2613497 Ontario Inc. moved under Rule 37.14 to set aside a Mareva injunction and discharge Certificates of Pending Litigation, arguing the original order was obtained without notice and without full and fair disclosure.

The court found that the defendant's lawyers of record had participated in case conferences and filed responding materials for the original motion, establishing that the defendant had notice.

As the motion was not made without notice, Rule 37.14 did not apply, and the court dismissed the motion, awarding costs to the plaintiffs.

The applicant tenant brought an application for the interpretation of a commercial lease to determine responsibility for property taxes, utility arrears, renovation expenses, and management fees.

The court found that the lease unambiguously made the landlord responsible for property taxes.

The court also held the landlord responsible for utility arrears incurred prior to the lease that were necessary to maintain service.

However, the tenant was found responsible for renovation costs, as well as the landlord's reasonable legal and management fees.

The Court of Appeal for Ontario issued a costs endorsement following an appeal hearing related to the Companies’ Creditors Arrangement Act (CCAA) proceedings of Urbancorp Cumberland 2 GP Inc. and related entities.

The panel reviewed the costs requests from the appellants and respondents and found the amounts reasonable.

Specific costs were ordered to be paid out of the Estate of the Cumberland Group to the appellants (Toro Aluminum, Speedy Electrical, Dolvin Mechanical) and two respondents (Guy Gissin, Tarion Warranty Corporation).

The Monitor and the Attorney General of Ontario did not seek costs.

This appeal concerned the enforceability and priority of a judgment creditor's writ of seizure and sale against a beneficial interest in land held by a bare trustee under an unregistered trust agreement.

The appellant, a judgment creditor of Fortress Wismer (beneficial owner), sought declarations that its writ was binding on Pace Mark (registered owner/bare trustee) and had priority over subsequent advances under a previously registered construction financing charge held by the respondents (Firm Capital and MarshallZehr).

The Court of Appeal dismissed the appeal, affirming that the Execution Act is procedural and does not grant substantive rights to judgment creditors beyond seizing the debtor's interest.

The court held that the writ did not bind the legal owner (Pace Mark) and that actual notice of the writ did not grant priority over prior registered charges under s. 93(4) of the Land Titles Act, as that section does not apply to execution creditors.

This appeal concerns the effectiveness of a statutory trust under s. 9(1) of Ontario's Construction Lien Act (CLA) in Companies' Creditors Arrangement Act (CCAA) insolvency proceedings.

Unpaid contractors (appellants) claimed a trust over proceeds from the sale of condominium units by the insolvent developer (Cumberland Group).

The motion judge denied the trust, relying on Re Veltri Metal Products Co., reasoning that the CCAA Monitor's involvement prevented the trust from arising.

The Court of Appeal allowed the appeal, clarifying that a s. 9(1) CLA trust can be effective in CCAA sales processes and is only displaced by federal paramountcy if it conflicts with a specific CCAA priority.

The court distinguished Veltri, stating it did not prevent a s. 9(1) trust when proceeds exceed mortgage debt and expenses, and confirmed the "deemed receipt" rule.

The Monitor of a CCAA-protected company appealed a motion judge's decision dismissing its motion to disallow a creditor's claim secured by a guarantee.

The creditor, Speedy Electrical Contractors Ltd., had provided a personal loan and performed electrical work for Urbancorp entities.

When Speedy threatened legal proceedings and held a construction lien, the parties entered into a debt extension agreement whereby Speedy agreed to discharge its lien and extend the loan in exchange for a secured guarantee from King Residential Inc. (a related Urbancorp entity) over condominium units.

The Monitor argued the guarantee was a transfer at undervalue under section 96 of the Bankruptcy and Insolvency Act and a fraudulent conveyance under the Fraudulent Conveyances Act.

The motion judge found Speedy and KRI were dealing at arm's length and that fraudulent intent was not established.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings.

The applicant sought to recognize and enforce a default judgment of $1,500,000 obtained in Israel against the respondent.

The respondent opposed, arguing the action should be heard in Ontario, the Israeli judgment offended natural justice, or the application should be stayed pending his efforts to set aside the judgment in Israel.

The court found a real and substantial connection to Israel, rejected the natural justice defence as the respondent had opportunity to defend and Israeli courts provide mechanisms to set aside default judgments, and denied a stay due to the respondent's lack of diligence.

The court granted the recognition and enforcement, with a term that enforcement would be stayed if the Israeli judgment is set aside.

This is a costs endorsement following an appeal from orders of the Superior Court of Justice.

The appeal involved four consolidated actions concerning personal liability of corporate directors and officers in the context of real estate development and mortgage transactions.

The Court of Appeal upheld the motion judge's conclusions on the legal issue of personal liability based on pleaded allegations and legal principles.

The costs decision addresses the appropriate costs awards for the successful and unsuccessful parties across the multiple appeals.

The applicant sought an order declaring the City's removal of a rooftop sign illegal and a referral to a Master for damages.

The City argued the removal was lawful due to the sign's conversion to an "Off Premise Sign" without proper permits under provincial and municipal by-laws, and that the sign was not "lawfully erected" for grandfathering purposes.

The court found the application raised complex issues of statutory interpretation, Charter rights concerning commercial expression, and evidentiary needs that were unsuitable for an application.

The court ordered the application to be converted into an action to allow for full discovery, expert evidence, and a proper adjudication of liability and damages.