Kevin D. Sherkin

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.

The lien claimants appealed a decision declaring that the respondent's mortgage had priority over their construction liens.

The respondent challenged the Divisional Court's jurisdiction, arguing the priority decision was not a 'judgment' under the Construction Lien Act.

The court held it had jurisdiction because the priority decision was a final order.

On the merits, the court upheld the motions judge's factual finding that the mortgage funds were advanced to the owner as a joint borrower, rather than merely serving as collateral security, thereby giving the mortgage priority under section 78(6) of the Act.

The appeal was dismissed.

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.

The appellant registered a claim for lien against condominium units owned by the respondent for work supplied to the developer.

The Master discharged the lien and certificate of action, finding the respondent was not an 'owner' under the Construction Lien Act and the appellant failed to properly preserve and perfect the lien by not naming the respondent.

The Divisional Court dismissed the appeal, upholding the Master's findings that the appellant had no valid lien rights against the respondent's units and affirming the Master's award of substantial indemnity costs due to the appellant's conduct.

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.

In a priority dispute under the Construction Lien Act, the court determined the relative priorities of several mortgagees and construction lien claimants.

The court held that professional fees incurred by a first mortgagee to protect its security constituted an 'advance' under section 78(6) of the Act, granting it priority.

The court also found that a $10 million advance made jointly to two borrowers under a second mortgage was an advance in respect of that mortgage, giving it priority over the lien claimants.

However, the court ruled that an advance made under a loan agreement to a third party was not an advance in respect of a collateral mortgage given by the developer as guarantor, meaning the lien claimants had priority over the collateral mortgage.

The applicants sought declarations that the respondent, the mayor of Caledon, contravened the Municipal Conflict of Interest Act by voting on land development matters in which he allegedly had a pecuniary interest.

The court found no evidence that the respondent had a direct or indirect pecuniary interest in the matters voted upon, noting that his property was located several kilometers away from the developments and any potential development of his land was decades in the future.

Both applications were dismissed.

The appellants purchased luxury hotel condominium units in the Trump International Hotel based on financial estimates provided by the developer, Talon.

The estimates projected significant returns but were based on uninformed opinions and understated expenses.

The appellants sued for misrepresentation.

The motion judge dismissed their claims, finding their reliance on the estimates unreasonable and barred by entire agreement clauses.

The Court of Appeal reversed, holding that reliance was reasonable and it would be unconscionable to enforce the exculpatory clauses given Talon's evasion of Securities Act protections.

The Court ordered rescission for one appellant and damages for the other.

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.

The appellant was employed under a five-year fixed-term contract and was terminated without cause after 23 months.

The motion judge found the early termination clause unenforceable and awarded common law reasonable notice damages subject to mitigation.

The Court of Appeal allowed the appeal, holding that where an employment contract is for a fixed term and lacks an enforceable early termination provision, the employee is entitled to the salary and benefits for the unexpired portion of the term.

Furthermore, the court held that there is no duty to mitigate damages arising from the early termination of a fixed-term contract.

The appellant, a second mortgagee on a matrimonial home, appealed a judgment denying its claim for additional funds and interest based on unregistered amending agreements.

The appellant argued its claim trumped that of an execution creditor.

The Court of Appeal dismissed the appeal, finding the appellant had previously admitted its security only applied to the registered principal amount and had taken an inconsistent position in a separate action.

The court also rejected the appellant's equitable mortgage argument and upheld the costs awards.

The defendants sought leave to appeal an order refusing to dismiss the plaintiffs' claims for equitable relief, including constructive trust, and permitting the plaintiffs to amend their statement of claim.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decision on a matter of principle and no reason to doubt the correctness of the motion judge's decision that the plaintiffs had pleaded sufficient facts to support their equitable claims.

A commercial landlord brought an application seeking interpretation of a lease and additional rent for a basement area occupied by the tenant’s assignee following insolvency proceedings.

The court examined the lease language, surrounding negotiations, and principles of contractual interpretation under Sattva.

It held that the basement was not part of the leased premises, but the lease rent was calculated on a per‑square‑foot basis.

The tenant’s assignee was therefore liable to pay rent for the basement based on the lease rate for its square footage from the date of assignment.

The landlord’s separate claim for rectification of the lease to reflect greater square footage of the upper floors was dismissed because the landlord had expressly waived the contractual right to remeasure the premises.

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.