David Simon Altshuller

The plaintiff, Lazy Dolphin Development Inc., sought and was granted default judgment against the defendant, Senthilruban Pathmanathan, for failing to close a real estate transaction.

The court reviewed the basis for liability and the calculation of damages, including the effect of an amendment to the purchase agreement, the resale of the property, and the appropriate date for interest calculation.

The court awarded damages, legal fees, commission, and interest, and clarified the principles for assessing damages and interest in the context of failed real estate transactions.

This endorsement addresses the costs of an unsuccessful motion for summary judgment brought by the Plaintiffs against the Defendant David Ryan.

The Defendant sought partial indemnity costs of over $100,000.

The Plaintiffs argued for costs to be reserved to the trial judge or fixed at $25,000, asserting that much of the work done for the motion would be reusable at trial.

The court found that the Plaintiffs should have realized the case was not suitable for summary judgment and that a significant portion of the work would not be reusable.

The court awarded the Defendant $60,000 in all-inclusive costs, payable within 30 days, but reserved the issue of expert report disbursements to the trial judge, acknowledging their potential reusability.

The plaintiffs, J.M.L. Holding Corporation and Gary Muchula, sought summary judgment against their former real estate solicitor, David Ryan, alleging professional negligence.

They claimed Mr. Ryan's conduct led to the erroneous sale of a waterfront property they did not intend to sell, seeking $550,000 in damages.

The court dismissed the motion, finding that the case presented genuine issues requiring a trial, including significant credibility and reliability issues between the parties, conflicting expert opinions on the standard of care and damages, and an incomplete evidentiary record, particularly regarding the buyer's perspective and the plaintiffs' intentions for the property.

The plaintiff, Lightbox Enterprises Ltd., moved for interlocutory injunctive orders against the defendant, 2708227 Ontario Inc., concerning their business relationship involving retail cannabis stores.

Lightbox alleged breach of license and service agreements and misuse of confidential information and trademarks ("Dutch Love", "Hobo Cannabis"). 2708227 Ontario Inc. counter-claimed, asserting the relationship was a franchise governed by the Arthur Wishart Act and that Lightbox failed to provide disclosure, entitling 2708227 Ontario Inc. to rescind the agreements.

The court dismissed Lightbox's motion for injunctive relief, finding no contractual basis for the primary relief sought, insufficient evidence to establish a strong prima facie case for breach of confidence, no irreparable harm, and that the balance of convenience favored the defendant.

The defendants (Franchisor Group) brought a motion for a collective security for costs order against three corporate plaintiffs (Franchisees) involved in related but unconsolidated actions, seeking a global payment of $597,427.32.

The court dismissed the motion, finding no legal basis under Rule 56.01 for a collective security for costs order against plaintiffs in separate actions.

The court also declined to grant alternative relief (separate security orders) under the "basket clause" of the notice of motion, citing procedural unfairness due to lack of proper notice and the arbitrary nature of quantifying security without a detailed breakdown of costs per action.

This decision addresses two motions brought by the Defendants to compel answers to refusals arising from examinations for discovery and cross-examinations on affidavits filed for a security for costs motion.

The court provided guidance on the scope of cross-examination on affidavits, particularly concerning the financial disclosure obligations of shareholders of corporate plaintiffs claiming impecuniosity.

The Master made specific rulings on numerous disputed refusals, balancing relevance and proportionality, and ordered the Shareholders to provide additional information and documents, while adjourning the discovery refusals motion.

Giuseppe Paolo Magnotta died intestate, survived by his wife, Melissa Magnotta (Applicant), and his mother, Rossana Magnotta (Respondent).

Melissa applied for a Certificate of Appointment of Estate Trustee without a Will.

Rossana objected, initially citing Melissa's alleged threat to exhume the deceased's remains and misrepresentation of estate liabilities, and sought a neutral third-party trustee.

The court found Rossana's objections unreasonable, as Melissa was the sole beneficiary and her "threat" to exhume was not acted upon.

Rossana's claim of a financial interest as a creditor for funeral expenses was also deemed insufficient to grant standing under Rule 75.03, as creditors have other remedies.

The court granted Melissa's application, dispensed with the administration bond, and awarded Melissa partial indemnity costs against Rossana.

The Plaintiffs moved to appoint Janina Gal as litigation guardian for Andrzej Gal, who was mentally incapable.

The Defendants opposed, arguing Janina had an adverse interest and was not indifferent to the outcome.

The court found Janina had a conflict of interest, as the litigation's success would result in properties forming part of Andrew's estate, which would then be transferred solely to Janina under Andrew's will, conflicting with Andrew's stated intention to divide properties equally among his daughters.

Furthermore, Janina was not indifferent to the outcome, as she stood to gain financially and had an acrimonious relationship with another daughter involved in the dispute.

The motion to appoint Janina as litigation guardian was dismissed, and the Plaintiffs were ordered to appoint a new, unconflicted litigation guardian or move to appoint the Public Trustee and Guardian.

The plaintiff, Azmoon Trading Inc., sought to alter a previous costs award in favour of the defendants, Caffe Demetre Franchising Corp. et al., following the dismissal of an injunction motion.

Azmoon Trading argued that costs should be borne by each party due to similar incurred costs and ongoing litigation, and challenged specific disbursements related to the defendants' counsel retaining lawyers from London, Ontario.

The court confirmed the original costs award of $41,670.61 to Caffe Demetre, finding that the successful party is presumptively entitled to costs, and that retaining counsel from a different municipality, even if it incurs additional travel disbursements, is generally permissible and reasonable if the overall costs are fair.

On appeal from a motion judge's decision, the franchisor appealed the finding that the franchise agreement had been validly rescinded under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000, and the dismissal of its cross-motion for damages.

The franchisee cross-appealed certain ancillary issues.

The Court of Appeal found in favour of the franchisor on all issues.

This costs endorsement addresses the allocation of costs for both the underlying motions for summary judgment and the appeal.

The appellants (franchisor and related entities) appealed a motion judge's decision that the respondents (franchisee and principals) validly rescinded a franchise agreement under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000.

The motion judge found the franchise disclosure document (FDD) was so inadequate as to amount to no disclosure because it failed to include the terms of the head lease and did not provide cost estimates for converting an existing restaurant to an ASWR outlet.

The Court of Appeal allowed the appeal, finding that while the FDD may have contained deficiencies, these were not so serious as to amount to a complete lack of disclosure.

The court distinguished the case from prior jurisprudence by noting the franchise agreement contained collaborative site selection and opt-out provisions that protected the franchisee's ability to make an informed decision.

The court awarded damages to the franchisor for unpaid construction invoices and the head lease deposit, less any benefits derived from operating the franchise.

The plaintiffs, a franchisee and its principals, moved for partial summary judgment seeking rescission of a franchise agreement due to alleged failures of disclosure under the Arthur Wishart Act (Franchise Disclosure), 2000.

The defendants brought a cross-motion for summary judgment to dismiss the claim.

The court found that the franchisor's disclosure document was egregiously deficient, specifically lacking a materially complete form of lease (including the head lease) and proper cost estimates for a conversion-type franchise.

The court rejected arguments that disclosure was impossible due to an undetermined location or that franchisee sophistication waived disclosure obligations.

The deficiencies amounted to a failure to provide a disclosure document, entitling the franchisee to rescission under s. 6(2) of the AWA.

The court also determined which corporate defendants were "franchisor's associates" and dismissed claims for misrepresentation and breach of good faith due to lack of focused argument.

All damages issues were referred to a Master.

The George Defendants brought a motion for the judge to recuse himself due to his past association and friendship with the Plaintiffs' senior counsel.

The judge, while finding no reasonable apprehension of bias based on his past involvement with a non-profit organization, ultimately decided to recuse himself.

This decision was made out of an abundance of caution, given his personal friendship with counsel and the possibility that counsel's credibility might become an issue in the motions, despite the administrative nature of counsel's affidavit.

The matter was sent back to civil practice court for a new judge.

Former franchisees rescinded their franchise agreements under the Arthur Wishart Act after failing to receive a disclosure document.

Following a reference determining the franchisor’s payment obligations under s. 6(6) of the Act, the franchisor defendants moved to oppose confirmation of the Master’s report, challenging awards for inventory, supplies and equipment, the refusal to offset profits earned during operation, and the costs award.

The court applied the deferential standard governing review of a master’s report and held that no error in principle or misapprehension of evidence had been demonstrated.

The court confirmed that payments under s. 6(6)(a)-(c) are independent statutory entitlements and cannot be offset by profits under s. 6(6)(d).

The Master’s findings and costs award were upheld.

Following a reference determining compensation owed under s. 6(6) of the Arthur Wishart Act (Franchise Disclosure), 2000 after rescission of a franchise agreement, the court considered the appropriate costs award.

The successful franchisee plaintiffs sought substantial indemnity costs after obtaining an order requiring the defendants to pay $290,830.72 plus interest.

The defendants argued no costs should be awarded because the amount had effectively been conceded.

The court held that the plaintiffs were the successful party and entitled to costs, but rejected substantial indemnity costs absent reprehensible conduct or success under Rule 49.

Partial indemnity costs were fixed at $25,000 inclusive of disbursements and taxes.