David Shiller

The applicant tenant applied for an order referring disputes over operating costs under three commercial leases to an independent professional consultant for expert determination, as provided in the leases.

The respondent landlord argued the disputes involved legal interpretation and should be resolved by the court.

The court granted the application, finding that the expert determination clause was broad enough to encompass the disputes, which involved practical questions of lease interpretation and allocation of expenses.

Following dismissal of a defamation action under the anti-SLAPP regime, the moving parties sought costs of the motion and the action.

The court held the statutory presumption under s. 137.1(7) of the Courts of Justice Act applied, given the collateral purpose for the litigation, the plaintiff's inability to prove harm caused by the impugned expression, and the prior finding that the action met the definition of SLAPP litigation.

Although full indemnity costs were presumptively available, the court made a modest reduction for excessive affidavit-preparation time and delay in bringing the motion.

Costs were fixed at $132,000.00 on a substantial indemnity basis.

The plaintiff, a federal political party leader, brought a defamation action against the defendants for publishing statements characterizing him as a racist, misogynist, and anti-Semite.

The defendants brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the action.

The court granted the motion, finding that while the statements were prima facie defamatory, the plaintiff failed to demonstrate that the defendants had no valid defence of justification or fair comment.

Furthermore, the plaintiff failed to show that the harm suffered outweighed the public interest in protecting free expression on matters of public interest.

The self-represented appellant tenant failed to comply with a prior case management order requiring payment of $12,000 to the respondent landlord.

At a subsequent case management teleconference, the tenant confirmed no payment was made and advised of his intention to vacate the premises.

The court ordered the stay of the Landlord and Tenant Board's eviction order to be vacated, allowing the eviction to proceed with priority.

The court also set a schedule for the tenant to perfect the appeal if he chose not to abandon it.

The bank brought summary judgment motions in three related debt actions and sought to preserve certificates of pending litigation against two properties while also asserting legal or equitable mortgage rights.

The court held that the certificates of pending litigation had been obtained on a materially deficient ex parte record because the moving party failed to make full and fair disclosure, and ordered them vacated.

However, the borrowers admitted the debts and their counterclaim for damages allegedly caused by the certificates failed because they adduced no credible evidence showing damages or an issue requiring a trial.

Summary judgment was granted on the debt claims, the legal and equitable mortgage claims were refused for lack of proof of mutual intention, and costs were awarded against the bank because of its misconduct on the ex parte motion.

The plaintiffs sought an interlocutory injunction requiring the defendants to vacate and cease farming lands transferred by Ontario to a bare trustee for the benefit of the Six Nations community as represented by the elected council.

The responding party asserted a lease from the hereditary governance structure, individual s. 35 rights, procedural impropriety in the eviction decision, and lack of authority in the elected council to control off-reserve lands.

The court held that consultation obligations had been met through years of main table negotiations, that any Aboriginal or treaty rights were collective rather than individually enforceable in this proceeding, and that no lawful leasehold or possessory entitlement had been established.

Applying the RJR-MacDonald framework, the court found a serious issue to be tried, irreparable harm from continuing trespass and interference with governance and land use planning, and a balance of convenience favouring the title holders.

The interlocutory injunction was granted.

A private elector brought a motion for an interim and interlocutory injunction restraining a municipal councillor from attending or voting at city council meetings pending an application challenging the validity of the councillor’s election on residency grounds.

The court applied the three‑part test for interlocutory injunctions from RJR‑MacDonald and found that although there was a serious question to be tried, the applicant failed to demonstrate irreparable harm.

The court also held that the balance of convenience favoured allowing the councillor to continue performing his duties, particularly given the public interest in municipal governance.

The requested injunction would effectively grant the ultimate relief sought prior to adjudication on the merits.

The applicant sought an interim and interlocutory injunction restraining a municipal councillor from attending or voting at meetings of a city council.

The motion arose in the context of a dispute involving the councillor’s participation in municipal governance.

The court declined to grant the requested equitable relief.

The motion for injunctive relief was dismissed, with directions for the parties to provide written submissions on costs.

The applicants sought judgment on a $5 million promissory note securing advanced commissions paid under a charity fundraising and consulting arrangement.

The respondent contended the advance had been fully earned through commissions on funds raised in 2008 and therefore nothing remained owing on the note.

The court accepted the respondent's position, relying heavily on the charity's 2008 tax filings to find that the advanced commissions had been earned and that the note debt was extinguished by statutory set-off under s. 111 of the Courts of Justice Act.

The court dismissed the applicants' claim, discharged the related security, and held that the respondent's attempt to recover an additional commission balance was statute-barred.

An auditing firm sought a declaration that its former corporate audit client was contractually required to indemnify it for legal fees and professional time incurred responding to a regulatory investigation concerning the client.

The engagement letters contained indemnity provisions and a working papers clause requiring reimbursement for time spent responding to regulatory or legal processes.

The court held that the provisions unambiguously required the client to indemnify the auditor for both legal fees and its own professional time incurred in cooperating with the regulator, absent negligence by the auditor.

While the legal fees were accepted as reasonable on the record, the auditor’s own fees required adjustment based on the underlying dockets, excluding entries lacking descriptions.

The court granted the declaration and ordered payment of the legal fees and adjusted professional fees.

The applicant moved for judgment on a demand promissory note and related security, seeking payment of a liquidated debt and dismissal of any set‑off claims raised by the respondent.

The respondent asserted a contractual right of set‑off arising from a services agreement and also brought motions seeking security for a Mareva damages undertaking and security for costs.

The court held that the existence of significant factual disputes, including whether contractual set‑off applied and limitation issues, made the matter unsuitable for determination on motion.

The court also found insufficient evidence to justify security for the damages undertaking or security for costs.

Both motions were dismissed and the issues were directed to proceed to trial.

In ongoing litigation concerning a family marina business under receivership, the court considered a motion by the court‑appointed receiver seeking approval of its interim reports, payment of interim receiver’s fees, and approval of legal fees incurred by its counsel.

The defendants opposed the motion, alleging bias by the receiver and arguing that the original receivership order permitted payment only from the proceeds of a future sale of the marina.

The court found no evidence of bias or improper conduct by the receiver and held that a material change in circumstances—specifically opposition to the marina’s sale—permitted variation of the prior order to allow interim payment.

The court approved the receiver’s interim reports and authorized payment of the receiver’s fees and legal fees as fair and reasonable, but declined to grant the receiver a first charge over the marina property.

The court also ordered that $17,000 be released to the estate once a properly appointed estate trustee or administrator complied with Rule 9 of the Rules of Civil Procedure.

The applicant sought continuation of a Mareva injunction freezing the respondent’s assets in connection with a disputed promissory note and security agreement.

The respondent argued the injunction should be set aside due to material non‑disclosure on the original ex parte motion, including the applicant’s assignment of the security underlying the debt and the respondent’s asserted set‑off claim.

The court held that the potential weakness of the undertaking as to damages arising from the assignment should have been disclosed to the judge who granted the ex parte order.

Although the court declined to continue the Mareva injunction in its existing form, it found that some interim relief was justified to preserve the status quo pending a short trial.

The injunction was continued temporarily for ten days with limited permitted expenses and directions for proposals regarding payments and trial scheduling.

The applicant subtenant sought a permanent or interlocutory injunction to enforce an exclusivity clause in its commercial sublease, which granted it the exclusive right to operate a karaoke club.

The respondent sublandlord had leased another unit to a co-respondent for a restaurant with karaoke.

Finding material facts in dispute, the court ordered the application to proceed to trial.

Applying the RJR-MacDonald test, the court granted an interlocutory injunction restraining the co-respondent from providing karaoke services pending trial, finding a serious issue to be tried, irreparable harm to the applicant's business, and the balance of convenience favouring the applicant.

The plaintiff landlord brought a motion under Rule 5.04 to add a newly incorporated company as a defendant, alleging it received assets, business opportunities, and benefits through fraudulent conveyances after the tenant abandoned leased premises.

The proposed defendant argued that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that the presumption of discovery under s. 5(2) was rebutted because the proposed defendant corporation did not exist at the time of the underlying events.

Given uncertainty regarding when transfers occurred and when the plaintiff could reasonably have discovered the claim, the court found a triable issue of discoverability.

Leave was therefore granted to add the corporation as a defendant with permission to plead a limitations defence.

Following earlier reasons dismissing competing motions relating to enforcement of an alleged settlement agreement and interlocutory relief in a corporate dispute, the court was asked to determine costs.

The moving party sought substantial costs relying on a prior offer to settle and alleged litigation conduct by another respondent.

The court held that neither side achieved meaningful success because the substantive dispute, including enforceability of the settlement agreement, would be determined at trial after the proceeding was converted into an action.

Given the largely technical successes and the likelihood that ultimate success would only be determined at trial, the court ordered that costs of the motions be costs in the cause.

No costs were awarded with respect to the parties’ competing claims for costs.

A motion was brought to enforce a settlement agreement under which a shareholder allegedly agreed to sell his one‑third interest in a corporation to the other shareholders.

The moving party sought summary enforcement of the settlement.

The responding party argued the settlement should not be enforced due to alleged fraudulent misrepresentations regarding the corporation’s financial condition and tenancy prospects.

The court held that a motion to enforce a settlement applies the same test as summary judgment and found that numerous genuine issues of fact required a trial.

The motion to enforce the settlement was dismissed and the original application was converted into an action to allow the disputed issues to proceed to trial.

The appellant appealed an order enforcing a monetary judgment from a Michigan court.

The Court of Appeal upheld the motion judge's finding that the appellant had attorned to the jurisdiction of the Michigan court, which gave the Ontario court jurisdiction to enforce the judgment.

The court also found that the narrow exceptions to enforcement set out in Beals v. Saldanha did not apply.

The appeal was dismissed with costs.