Kevin D. Sherkin

Four consolidated class actions brought by small investors who invested in syndicated mortgages promoted by Fortress Real Capital Inc. and Fortress Real Developments Inc. The investors alleged misrepresentation, breach of fiduciary duty, breach of contract, and negligence.

The motion judge struck claims against individual respondents Jawad Rathore and Vincenzo Petrozza, and dismissed claims to enforce syndicated mortgages against Empire Pace (1088 Progress) Ltd. and ADI Developments entities.

The appellants appealed.

The Court of Appeal upheld the dismissal of personal claims against Rathore and Petrozza but reversed the dismissal of mortgage enforcement claims against Empire Pace and ADI, finding that the motion judge erred in applying Rule 21 to matters requiring evidentiary findings regarding contract interpretation and disclosure.

The appellants retained Birkshire Group Inc. to perform home renovation work.

After the relationship deteriorated, Birkshire registered a construction lien and sued for the balance owing.

The appellants counterclaimed and sued other respondents.

At trial, the judge awarded Birkshire damages and recognized a lien.

The appellants appealed, arguing the trial judge failed to address evidence from two witnesses called after the close of evidence.

The trial judge had determined this evidence was material to credibility issues but made no reference to it in his reasons.

The Court of Appeal found the trial judge's reasons deficient and allowed the appeal, ordering a new trial.

The appellant condominium corporation appealed a Superior Court decision that dismissed its negligence claim against multiple defendants for delay in service.

The claim involved construction defects discovered in 2012 and issued in 2014 but not served within the required six-month period.

The appeal judge reversed the master's decision, finding palpable and overriding errors of fact and law.

However, the Court of Appeal found that the appeal judge's decision was based on a transcription error in the master's reasons (where "institutional" was incorrectly transcribed as "individual"), which created a false inconsistency.

The Court of Appeal allowed the appeal and restored the master's decision, finding that the master properly applied the legal principles regarding delay and prejudice.

Following the defendant's unsuccessful motion to transfer and consolidate the action, the successful plaintiff sought costs of $7,082.73 on a partial indemnity basis.

The defendant argued costs should be in the cause or parties should bear their own costs.

The court rejected the defendant's arguments, finding the plaintiff entitled to costs payable forthwith.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court fixed the plaintiff's costs at $6,000 inclusive.

The defendants brought a motion to transfer the action from Newmarket to Toronto to be heard immediately after a related action commenced by the plaintiff in Toronto.

The court dismissed the motion, finding that transferring the action would delay the Toronto action, which was already set down for trial.

The court noted the plaintiff's advanced age and the fact that she had been financing the Toronto litigation for five years.

The court held that the plaintiff's choice of venue was entitled to deference and there was no risk of inconsistent findings.

This is a costs endorsement following an appeal where the Court of Appeal set aside the order of the application judge dated October 5, 2015.

The parties had contested two issues on the application with divided success.

The application judge had reduced the respondent's costs from an agreed amount of $42,500 to $30,000 due to partial success.

On appeal, the Court of Appeal determined that the appellant succeeded on both issues argued at the application and therefore was entitled to the full agreed costs amount of $42,500 for the application below, in addition to $20,000 for the costs of the appeal.

The appellants appealed a trial judgment that imposed a constructive trust over their properties, declared that Venanzio Pingue was not a shareholder of the respondent company, and removed him as an officer and director due to breach of fiduciary duties.

The trial judge found that Venanzio had misappropriated $592,671.43 from the company and never paid for his shares.

The appellants argued the trial judge erred in interpreting the parties' written agreements and in refusing to admit their expert report.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's interpretation of the agreement or her discretionary decision to exclude the late expert report.

The court also dismissed the motion to admit fresh evidence and the motion for leave to appeal the costs order.

This partial judgment addresses cross-applications between the Fenwicks (purchasers) and Concierge Auctions ULC (auctioneer) regarding a $430,000 buyer's premium held in court.

The dispute arose after a real estate auction failed to close due to vendor mortgage issues, leading the Fenwicks to enter a second agreement to purchase the property directly from the vendors.

Concierge claimed the buyer's premium, arguing the second sale was an extension of the first, while the Fenwicks contended the original sale's failure negated Concierge's entitlement.

The court found the two agreements constituted one continuous transaction, entitling Concierge to the buyer's premium plus HST and pre-judgment interest, and dismissed claims of unjust enrichment and quantum meruit.

This partial judgment addresses cross-applications between the Fenwicks (purchasers) and Concierge Auctions ULC (auctioneer) regarding a $430,000 buyer's premium held in court.

The dispute arose after a real estate auction failed to close due to vendor mortgage issues, leading the Fenwicks to enter a second agreement to purchase the property directly from the vendors.

Concierge claimed the buyer's premium, arguing the second sale was an extension of the first, while the Fenwicks contended the original sale's failure negated Concierge's entitlement.

The court found the two agreements constituted one continuous transaction, entitling Concierge to the buyer's premium plus HST and pre-judgment interest, and dismissed claims of unjust enrichment and quantum meruit.

The applicants sought to remove the respondent from his position as mayor due to alleged conflicts of interest, but their applications were dismissed.

This endorsement addresses the respondent's request for costs.

The court awarded the respondent partial indemnity costs, totaling $78,298.93, to be paid by the applicants.

Kelly Darnley was ordered to pay $66,298.93 and Charles Bristoll $12,000.

The court declined substantial indemnity costs, finding the applicants' conduct not reprehensible, but noted their broad and unsupported allegations unnecessarily increased complexity.

This is a costs endorsement following an appeal of a partial summary judgment motion.

The appellants sought rescission of an agreement of purchase and sale and damages, with their claims being representative of 20 other similar outstanding actions.

The Court of Appeal allowed the appeal in part, awarding rescission to one appellant and damages to another (with calculation to be determined by the Superior Court).

The court addressed the costs of the partial summary judgment motions, considering offers to settle that included interest provisions and applied to multiple similar claims.

The court awarded costs to the appellants for the partial summary judgment motions while reducing the amount claimed due to the dismissal of motions against three individual defendants and the ongoing nature of the claims.

The appellant appealed from a Superior Court decision that found a commercial lease for fitness club premises did not include the basement, despite the tenant's long-standing use of it.

The Court of Appeal reversed, holding that when the lease is interpreted in light of all surrounding circumstances—particularly email correspondence between the parties' lawyers—the parties clearly intended to lease the entire premises, including the basement, on a lump sum basis.

The court found the application judge erred in law by failing to consider all relevant circumstances, despite acknowledging the need to do so.

The applicant brought a motion to consolidate or hear together two applications seeking the removal of a mayor and a councillor for alleged breaches of the Municipal Conflict of Interest Act.

The court dismissed the motion, finding that one of the applications had already been fully argued and was no longer 'pending' as required by Rule 6.01.

Furthermore, the court held that the applications required individualized reviews of separate impugned votes, meaning there were no common material facts that would justify joinder or risk inconsistent judicial findings.

The applicant, Saeed Yahyavi, brought an emergency motion to restrain the sale of his home by the respondent, Nadi Inc., under power of sale.

The applicant alleged that Nadi Inc. failed to disclose and account for a $250,000 payment received from a settlement in a fraudulent conveyance action, which should have been credited against the judgment debt secured by the mortgage on his home.

The court found that Nadi Inc. knowingly misstated the amount due in the notice of sale by improperly characterizing the settlement funds as punitive damages and costs rather than a realization on the judgment.

The court declared the notice of sale void and enjoined Nadi Inc. from completing the sale.

The applicant was ordered to pay $1,100,000 into court, and the issues regarding the proper amount due were referred to a Master for accounting.

Following the dismissal of the moving parties' motion for a Mareva injunction, the respondents sought their costs.

The court awarded substantial and full indemnity costs to the respondents, totaling over $126,000, finding that the moving parties had made serious, unfounded allegations of fraud and breach of trust, and had engaged in inappropriate conduct by raising unrelated regulatory issues to smear certain respondents.

Following the dismissal of summary judgment motions in a dispute over the purchase of hotel condominium units in the Trump International Hotel in Toronto, the successful defendants sought costs on a partial indemnity basis.

The plaintiffs argued that no costs should be awarded due to alleged misconduct and their success on certain factual issues, or alternatively that the amount sought was excessive.

The court held that the litigation was not a case of divided success and that the plaintiffs ultimately failed on critical factual and legal elements of their claims.

Applying the principle that costs should be fair, reasonable, and within the expectations of the parties, the court awarded the successful defendants a reduced amount.

Costs of $58,000 inclusive were ordered.

The plaintiffs brought a motion for summary judgment under Rule 20 of the Rules of Civil Procedure seeking to enforce a judgment under s. 258 of the Insurance Act against an insurer alleged to have issued a motor vehicle liability policy to the tortfeasor responsible for a catastrophic 1992 motor vehicle accident.

The plaintiffs relied on circumstantial evidence, including an accident report listing a policy number, licence plate renewal applications, correspondence with insurers, and an affidavit from the tortfeasor’s daughter.

The court held that the evidentiary record was insufficient to establish on a balance of probabilities that the tortfeasor held a motor vehicle liability policy with the alleged insurer at the time of the accident.

Because the existence of such a policy was not proven, the remaining issues concerning assumption of liability, limitation defences, and damages were unnecessary to determine.

The motion for summary judgment was dismissed.

Two purchasers of hotel condominium units in the Trump International Hotel in Toronto brought test‑case summary judgment motions seeking rescission and damages based on alleged misrepresentations and an alleged breach of an Ontario Securities Commission prospectus‑exemption ruling.

The purchasers relied primarily on an “Estimated Return on Investment” document that allegedly overstated revenues and understated expenses.

The court found the document contained multiple misrepresentations but held the plaintiffs’ claims nevertheless failed because their reliance on the estimates was not objectively reasonable in light of extensive contractual disclaimers, disclosure documents, and risk warnings.

The court further held the defendants did not breach the OSC exemption ruling and that statutory securities and condominium misrepresentation provisions were not engaged.

One plaintiff’s claims were also statute‑barred under the Limitations Act, 2002.

The moving parties sought to quash the opposing parties’ attempt to revive and schedule a previously raised motion concerning an alleged breach of a Mareva injunction.

The earlier trial reasons and subsequent appellate decision left unresolved whether the injunction had been breached.

The court found that the trial judge had deferred the issue and that a later email from the trial judge declining to amend the judgment did not constitute a formal endorsement or order under the Rules of Civil Procedure.

Given the absence of a final adjudication and the lack of reasons, the issue remained open.

The court exercised its discretion to permit the matter to proceed so the alleged breach of the Mareva injunction could be determined.

Following the dismissal of a motion by the defendants to dissolve a Mareva injunction, the court addressed the issue of costs.

The plaintiffs sought costs of $22,170.43 inclusive of disbursements and HST, while the defendants argued the amount should be reduced to $15,000.

The court rejected the defendants’ criticisms of the time spent by plaintiffs’ counsel, noting the absence of comparative information about defence counsel hours and characterizing the challenge as unsupported.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court found that a costs award of $22,000 inclusive of disbursements and HST was appropriate.

The moving defendants were ordered to pay the amount within 30 days, failing which the receiver was authorized to pay the award and charge it to the receiver accounts.