Lars Brusven

The decision concerns the interpretation of a settlement agreement between siblings Marvin Rubner, Joseph Rubner, and Brenda Bistricer regarding the division of special shares in Kalber Developments Incorporated, a family corporation, and the estate of their mother, Eda Rubner.

The court finds that the Kalber Settlement Agreement and the Will Settlement Agreement do not operate as a disclaimer or renunciation by Brenda of her interest in the special shares, and that Joseph, not being a party to the agreements, cannot claim a benefit under them.

The application by Marvin is granted, and costs are fixed against Joseph.

In a trial for conversion, the plaintiff claimed the landlord unlawfully disposed of its racking system after a lease disclaimer.

The landlord argued the racking was deemed abandoned under a court order from bankruptcy proceedings or, alternatively, that its disposal was justified due to the plaintiff's trespass.

The court found that the "deemed abandonment" provision in the liquidation order was a valid defense, and even if not, the landlord acted reasonably in disposing of the racking given the plaintiff's trespass and the high costs of preservation.

The plaintiff's claim for conversion was dismissed.

The landlord's counterclaim for lost rental revenue was also dismissed due to insufficient evidence on damages.

The Applicant condominium sought an order appointing an arbitrator and confirming the arbitrator's jurisdiction over issues in its Fresh as Amended Notice of Arbitration.

The Respondent developer sought to quash the notice, arguing repudiation of a prior agreement to appoint a specific arbitrator and that a third party (Gooderham) should be involved due to new matters.

The court granted the Applicant's request to appoint the agreed-upon arbitrator, finding no repudiation.

However, the court deferred the determination of the arbitrator's jurisdiction, mandate, and whether the third party should be joined to the arbitrator himself, consistent with the principle that arbitrators can rule on their own jurisdiction.

The moving parties (defendants/appellants) sought to set aside parts of a motion judge's order that lifted an automatic stay of a fraud judgment and ordered payment into court.

The basis for their request was the motion judge's failure to consider a Croatian share transfer document.

The Court of Appeal dismissed the motion, finding the Croatian document lacked evidentiary weight as it was not accompanied by a certified English translation as required by s. 125(2) of the Courts of Justice Act, was not produced at trial, and was attached to an affidavit from an unreliable witness containing hearsay.

The plaintiffs, The Calbot Group Ltd. and 2649106 Ontario Inc. cob Synergy Capital, brought two motions: a Preservation Motion seeking to secure $5 million from land sale proceeds and a Jurisdiction Motion against certain foreign defendants.

The court first addressed the Jurisdiction Motion, finding that the plaintiffs failed to establish a real and substantial connection between the foreign defendants (NSR Canada Development Limited, New Silk Road Culturaltainment Ltd., and Sha Huang aka Sam Huang) and Ontario, as the alleged contract (MOU or verbal agreement) was not genuine and the corporate veil could not be pierced.

Consequently, the action against these foreign defendants and Mr. Huang was stayed.

The Preservation Motion, seeking relief under Rule 45.02, a Certificate of Pending Litigation (CPL), or Mareva injunction, was also dismissed.

The court found that the plaintiffs' claim was for damages, not a specific fund, and they failed to demonstrate a serious prospect of success or meet the stringent requirements for such remedies.

Costs were awarded to the successful defendants.

On the eve of trial, the plaintiffs brought a motion for further documentary production and discovery after the defendants provided late answers to questions previously refused during examinations for discovery.

The defendants argued that issue estoppel applied due to previous unsuccessful refusals motions.

The court rejected the issue estoppel argument, finding that the defendants altered the litigation landscape by voluntarily providing the late answers.

The court ordered limited, file-specific documentary production relevant to the new answers, but denied broader discovery requests to avoid delaying the trial.

Following a successful motion by the defendants to stay the plaintiffs' action on the basis of jurisdiction simpliciter and forum non conveniens, the court determined the quantum of costs.

The defendants sought partial indemnity costs totaling over $260,000.

The court found the requested amounts excessive given the length and complexity of the hearing, and ordered the plaintiffs to pay $50,000 to Israel and $36,000 to CTCC, inclusive of disbursements and HST.

The plaintiffs, Argentine citizens, brought an action in Ontario against the State of Israel and its Canadian fiscal agent, seeking to recover proceeds from two bonds issued by Israel in the name of their great-uncle's estate.

The defendants brought a motion to stay the proceeding, arguing that Ontario lacked jurisdiction simpliciter or, alternatively, that Israel was the more appropriate forum.

The court granted the motion, finding that the presumptive connecting factors to Ontario were weak and rebutted, as the core of the dispute involved contracts formed and torts allegedly committed outside of Ontario.

Furthermore, the court held that even if it had jurisdiction, it would decline to exercise it because Israel was clearly the more appropriate forum based on the location of witnesses, applicable law, and enforcement considerations.

Two 50/50 shareholders of an IT security company brought cross-applications for oppression under s. 241 of the CBCA following a breakdown in their relationship.

The applicant alleged the respondent misappropriated corporate opportunities and improperly dissolved the company, while the respondent alleged the applicant misappropriated funds and improperly terminated his position.

The court dismissed both applications, finding that both parties engaged in a 'war of attrition' and neither established that the other's conduct warranted an oppression remedy or caused compensable damages.

The defendant insurers brought a motion for further and better affidavits of documents from the plaintiff insureds in a coverage dispute under a builders' risk insurance policy.

The dispute arose from a 15-month delay in completing a light rail transit project, which the plaintiffs attributed to a sinkhole event.

The defendants sought production of subcontractor change orders, native schedules, and delay-related correspondence to explore other potential causes of the delay.

The court dismissed the request for change orders and schedules as premature and insufficiently substantiated, but granted the request for certain delay-related correspondence to assist in identifying other subcontractors who may have caused delays.

The plaintiff sought a mandatory injunction to compel interim monthly payments of $6,500 from the defendant business, E. Corbiere & Sons Contracting, based on an alleged oral compensation agreement.

The defendants disputed the agreement and claimed the plaintiff had already received significant advances.

The court dismissed the motion, finding that the plaintiff failed to establish a strong prima facie case for the alleged oral agreement and did not demonstrate irreparable harm, as any financial loss was compensable in damages and his claims of impecuniosity were speculative.

The court also noted that the relief sought was akin to a partnership distribution not pleaded in the statement of claim.

The appellant sought leave to appeal a Divisional Court decision dismissing his negligent medical diagnosis and drug treatment claim against the respondent physicians.

The appellant had failed to provide expert medical evidence establishing a breach of the standard of care despite being granted an adjournment and more than six months to obtain such evidence.

The Court of Appeal dismissed the motion for leave to appeal, finding no error in the Divisional Court's reasoning and confirming that in medical negligence cases, the plaintiff must prove the standard of care through expert evidence.

The self-represented appellant appealed a Small Claims Court decision dismissing his medical negligence claim against his former neurologist for allegedly misdiagnosing him with Parkinson's disease.

The trial judge had stayed the proceedings multiple times to allow the appellant to obtain an expert report on the standard of care.

The appellant eventually submitted letters from his subsequent treating physician, which questioned the original diagnosis but did not opine on the standard of care.

The Superior Court dismissed the appeal, affirming that while treating physicians can provide opinion evidence without formal expert reports, the plaintiff still must establish a breach of the standard of care.

Without such evidence, the trial judge properly dismissed the action as a waste of time under Rule 12.02.