Kevin D. Sherkin

The defendants moved to set aside earlier ex parte orders granting a Mareva injunction and appointing a receiver over corporate assets allegedly used to shield property from enforcement of a substantial fraud judgment.

They argued that changed circumstances following a partial appellate reduction of the judgment, the alleged inadequacy of the plaintiffs’ undertaking as to damages, delay in prosecuting the action, and the balance of convenience justified dissolving the orders.

The court held that although the Court of Appeal reduced and modified aspects of the original fraud judgment, the defendant remained liable for over $12 million and the underlying factual basis for asset preservation had not materially changed.

The court also rejected arguments concerning the undertaking as to damages and delay, noting the extensive appellate proceedings that reasonably delayed progress.

The Mareva injunction and receivership orders therefore remained justified to preserve assets pending trial.

The purchaser brought a motion for summary judgment in litigation arising from a failed commercial real estate transaction, seeking dismissal of the vendor’s action and return of a $250,000 deposit.

The purchaser argued it was justified in refusing to close due to alleged breaches including lease modifications without consent, misrepresentation of the rent roll, failure to deliver estoppel certificates, and absence of required personal guarantees.

The court held that the alleged deficiency regarding guarantors did not justify refusal to close and that the individual signatory purchaser had been released from liability through a valid assignment to a corporate purchaser.

However, genuine issues requiring a trial remained regarding alleged contractual breaches, the forfeiture or return of the deposit, and related claims including a third-party claim against the purchaser’s lawyers.

Partial summary judgment was granted dismissing the action against the individual purchaser, but the remaining issues were directed to trial.

Following the release of the court's reasons on an appeal, counsel advised the judge of an error regarding the agreed-upon costs.

The court issued a correcting endorsement to amend the costs award payable to the successful appellant from $15,000 to the agreed amount of $5,000.

The plaintiff subcontractor brought a motion for summary judgment against the individual defendants for breach of trust under the Construction Lien Act.

The corporate contractor had failed to pay the plaintiff for completed flooring work despite receiving funds from the owners and swearing a statutory declaration that all sub-trades had been paid.

The court found a breach of trust occurred and held two of the individual defendants personally liable under s. 13(1) of the Act, finding they had effective control of the corporation and acquiesced in the breach.

The action against a third individual defendant, an employee, was dismissed.

The plaintiff brought an action against a developer for breach of a partnership agreement and included several co-owners of the development project as defendants, alleging they were trustees de son tort who knowingly received trust funds.

The co-owner defendants moved for summary judgment to dismiss the claims against them.

The court found no privity of contract between the plaintiff and the moving defendants, and no evidence that they knowingly assisted in a breach of trust or received more than their proportionate share of profits.

The motion for summary judgment was granted and the action against the moving defendants was dismissed.

The appellant appealed an order dismissing its motion for leave to amend its Statement of Claim to add claims of negligence and negligent misrepresentation regarding an adhesive product.

The Master had found the proposed amendments sought to plead new facts and causes of action that were statute-barred.

The Divisional Court allowed the appeal, finding that the original claim contained sufficient material facts to support the new legal theories, and the amendments merely sought alternative remedies based on the same facts.

The plaintiff moved for summary judgment to enforce a $500,000 promissory note and dismiss a counterclaim.

The defendants argued the claim was statute‑barred and asserted that the loan was actually an advance against partnership profits.

The court held that the promissory note constituted a demand obligation, such that the limitation period under the Limitation Act, 2002 began to run only when demand for payment was made.

The court rejected attempts to introduce parol evidence contradicting the clear written terms of the promissory note and found no genuine issue requiring a trial regarding the validity of the debt.

Summary judgment was granted on the promissory note, but the counterclaim was permitted to proceed.

The applicant filed a human rights application alleging discrimination in services after being refused seating at a franchise restaurant.

In this interim decision, the Tribunal dismissed the application against the unidentified manager/owner due to lack of contact information.

The Tribunal declined to dismiss the application against the franchisor at a preliminary stage, directing that franchisor liability be determined at the hearing.

The Tribunal also noted the franchisee's failure to respond and directed the matter to proceed to a one-day hearing.

In a Commercial List proceeding, defence counsel attempted to schedule a 9:30 a.m. attendance to arrange a motion to set aside a noting in default, but plaintiff’s counsel refused to consent to any scheduling and failed to attend the appointment.

The court addressed the obligations of counsel practicing on the Commercial List, emphasizing the importance of cooperation, communication, and common sense in advancing proceedings efficiently.

The judge criticized the use of counsel’s personal scheduling conflicts as a justification to avoid prompt 9:30 attendances and found the plaintiff’s counsel’s conduct obstructive to the scheduling process.

The court restricted the plaintiff from taking further procedural steps without approval and ordered a peremptory case conference.

The decision reiterates that counsel cannot rely on their calendars to impede the progress of Commercial List matters.

The appellant, a third mortgagee, appealed a summary judgment dismissing its action for damages for an alleged improvident sale and for an accounting under s. 27 of the Mortgages Act.

The appellant argued the motion judge applied the wrong test, the sale was improvident, and the second mortgagee was not entitled to add the first mortgage payout to its claim.

The Court of Appeal dismissed the appeal, finding that while the wrong test was applied, the respondent took reasonable precautions to obtain the true market value of the property.

The court also held the respondent was entitled to the payout amount under the doctrine of equitable subrogation.

The plaintiffs were defrauded of $1.3 million by a promoter who instructed them to deposit funds into a law firm's trust account.

The funds were subsequently disbursed on the promoter's instructions.

The plaintiffs sued the law firm and the responsible lawyer for negligence and breach of trust.

The defendants moved for summary judgment.

The court granted the motion, finding that the lawyers owed no duty of care to the non-client plaintiffs, as there was no proximity and the plaintiffs' reliance was not reasonable.

The court also found no fiduciary duty existed.

The court considered whether a defendant whose statement of defence had been struck and who was noted in default could nonetheless make submissions at trial regarding the plaintiff’s entitlement to damages.

The plaintiff argued that allowing submissions would constitute an abuse of process, relying on Rule 19.02 of the Rules of Civil Procedure.

The court applied authority interpreting Rule 19.02 and held that making oral submissions does not constitute “taking another step” in the action.

Accordingly, a defendant noted in default is not barred from attending a motion or hearing and making submissions.

The court permitted the defendant to make submissions and directed the parties to exchange further written submissions.

Following summary judgment in a mortgage debt enforcement action, the court determined the appropriate costs award.

The successful lender sought substantial indemnity costs of approximately $78,500 relying on contractual mortgage provisions and the defendant’s untenable defence.

The court held that although the lender had a strong argument for elevated costs, the legal resources deployed were disproportionate given the simplicity of the claim and the self‑represented defendant’s weak position.

Exercising its discretion despite the contractual clause, the court reduced the costs award as unreasonable and excessive.

A lump‑sum costs award of $38,000 inclusive was ordered.

The defendant lender brought a motion for summary judgment dismissing a claim by a third mortgagee arising from a power of sale of residential property.

The plaintiff alleged the sale was improvident and challenged the defendant’s ability to add amounts paid to discharge a prior mortgage to its own mortgage debt.

The court held the sale price fell within the range of professional appraisals and did not demonstrate bad faith or fraud.

The court further held that the defendant was contractually and equitably entitled to add the payout of the prior mortgage to its own mortgage and recover that amount in priority to the plaintiff.

Finding the matter suitable for determination on a documentary record, the court granted summary judgment and dismissed the action.

A commercial condominium corporation sought a compliance order against a grocery store tenant and its landlord to prevent the display of merchandise on the common element sidewalk.

The application judge granted the compliance order, dismissed the landlord's oppression application, and awarded costs to the condominium corporation.

The landlord and tenant appealed the compliance order, and the condominium corporation cross-appealed the costs award.

The Court of Appeal dismissed the main appeal, finding the limitation period had not expired due to continuous breaches, and upheld the dismissal of the oppression application.

However, the Court allowed the cross-appeal on costs, finding the application judge erred in principle by failing to explain her calculation of 'additional actual costs' under s. 134(5) of the Condominium Act, 1998, and remitted the costs issue for reconsideration.

The plaintiff sued the corporate defendant and its principal for wrongful dismissal.

The defendants filed a joint statement of defence alleging cause, and the corporation counterclaimed.

The corporation later became insolvent, and its counterclaim was assigned to the principal.

After the corporation's statement of defence was struck for failure to attend discovery, resulting in deemed admissions of the plaintiff's allegations, the principal sought to amend his pleadings to continue the counterclaim.

The Court of Appeal upheld the decision denying the amendments, finding that because the principal stood in the shoes of the corporation, the deemed admissions made the counterclaim legally impossible to succeed, rendering the proposed amendments an abuse of process.

The applicant filed a human rights application against Bagel World alleging discrimination in services.

The franchisor, Bagel World, sought clarification on the proper respondent, noting the location was operated by a franchisee that had ceased operations.

The Tribunal issued a Case Assessment Direction requiring the franchisor to provide contact information for the owner and file a Response.

When the franchisor failed to file a Response, the Tribunal issued an interim decision ordering the franchisor to file a Response within 35 days and requiring the applicant to provide accurate contact information for any other respondents she intends to proceed against.

The appellants appealed a trial judgment finding them liable for over $20 million in damages for improperly placing a paving company, Osler, into bankruptcy as part of a fraudulent scheme to deprive the respondents (the Alfano family trusts) of their 87 percent equity interest.

The Court of Appeal upheld the finding of liability against Mr. Piersanti, agreeing that he orchestrated a fraudulent scheme, including concocting a fake shareholders' agreement and assigning the company into bankruptcy.

The Court also upheld the trial judge's decision to exclude the appellants' expert witness for lacking independence and acting as an advocate.

However, the Court allowed the appeal in part by setting aside the liability finding against Ms. Piersanti, reducing the compensatory damages to $14,391,807 based on adjustments conceded by the respondents' expert at trial, and setting aside orders requiring a related company to pay $2.5 million into court and declaring an interest in certain properties.

The appellants appealed a Superior Court decision that set aside an arbitrator's interlocutory orders, an order striking statements of defence, a final arbitral award, and removed the arbitrator.

The Court of Appeal allowed the appeal in part, holding that the application judge erred in setting aside the interlocutory orders, as the Arbitration Act does not permit judicial intervention for procedural decisions.

However, the Court upheld the setting aside of the order striking the pleadings and the final award, finding that the respondents were treated unfairly because their bankruptcy made compliance with the interlocutory orders legally impossible.

The removal of the arbitrator was also upheld.

The appellant appealed a summary judgment enforcing a California default judgment against him.

He argued that the California court's jurisdiction was obtained by fraud, specifically alleging that the complaint falsely claimed he signed certain contracts.

The Court of Appeal dismissed the appeal, finding a real and substantial connection between the causes of action and California, and concluding that the appellant failed to present evidence of fraud going to jurisdiction.

The court held that the appellant was improperly attempting to re-litigate facts already determined by the default judgment.