Joseph Markin

Competing summary judgment motions arose from a debt restructuring in which the moving parties released a collateral mortgage and personal guarantees in exchange, in part, for two off-plan Dubai condominium units.

The court held that the amended agreement, read together with the incorporated reservation forms and Dubai law evidence, required that the purchase price for the units be paid into escrow.

The responding parties used closing documents that falsely represented the escrow accounts had been funded when no such funds existed, thereby inducing the release of valuable Canadian security.

Applying the summary judgment framework and the test for fraudulent misrepresentation, the court found no genuine issue requiring trial and granted judgment to the moving parties.

The court also ordered substantial indemnity costs, with further submissions on interest and costs quantum.

The applicants sought to set aside an arbitration award dismissing their claims for unpaid contractor fees, arguing the expedited arbitration rules violated the Arbitration Act by denying them a fair hearing.

The respondents argued the application was out of time and that the parties had agreed to the arbitration rules in their contract.

The Superior Court of Justice dismissed the application, finding the applicants had expressly agreed to the arbitration rules and that the application was brought beyond the strict 30-day time limit under section 47 of the Arbitration Act, which the court had no authority to extend.

The defendant university moved to set aside a default judgment, writ of execution, and garnishment arising from a dispute over a student recruitment and satellite campus arrangement.

Applying the five-factor test for setting aside default judgment, the court held that the defendant had shown an arguable defence, particularly because the judgment had been based on a liquidated contractual claim rather than the pleaded fiduciary duty theory emphasized by the plaintiff.

The court also found a genuine issue for trial as to whether the parties' relationship was contractual or fiduciary in nature.

The motion was granted, the garnished funds were to be returned except for $52,000, and costs were awarded to the defendant.

The plaintiff lender moved for summary judgment dismissing a counterclaim and for judgment on two mortgage loans arising from a construction financing arrangement.

After a mini-trial, the court held the written loan agreement did not require the lender to fund monthly interest payments from future advances and did not oblige the lender to make further advances after the borrowers defaulted.

The court rejected allegations that the mortgage broker bound the lender to any side agreement or that the lender owed a duty to protect the borrowers from entering a high-risk loan they could not carry.

The counterclaim was dismissed, the stay on the mortgage judgment was lifted, and judgment, possession, and substantial indemnity costs were granted to the lender.

The appellants appealed an order striking their negligence claim against former criminal defence counsel as an abuse of process.

The court held the civil action was plainly a collateral attack on criminal convictions that had remained undisturbed on appeal.

To succeed, the appellants would have had to prove that, but for counsel's negligence, the accused would have been acquitted, thereby re-litigating the criminal charges and undermining the integrity of the adjudicative process.

The court held that allegations of ineffective assistance generally should be pursued by direct attack within the criminal proceeding, not through a separate civil action.

The appeal was dismissed with costs.

The appellant challenged the dismissal of his action alleging misrepresentations in connection with the purchase of interests in two closely held businesses, and also challenged partial allowance of counterclaims by the respondents.

The Court of Appeal held that the trial judge's findings were grounded in credibility, were well supported by the record, and attracted deference.

It rejected the argument that one respondent breached the share purchase agreement by selling an interest he did not own, finding both parties understood the transaction as a sale of that respondent's interest.

It also upheld a damages award reflecting another respondent's continuing ownership interest after the appellant operated and dissolved one company without accounting to that shareholder.

The appeal was dismissed with costs.

The purchaser appealed a trial decision finding that open web steel joists were not part of the structural steel included in an agreement of purchase and sale for a commercial property.

The Court of Appeal allowed the appeal, finding that the trial judge erred by relying on extraneous documents to interpret the agreement.

The Amending Agreement and the documents specifically referenced within it, including the purchase order and structural drawings, clearly included open web steel joists.

As the vendor failed to provide the joists, they breached the agreement, and the funds held in trust were ordered returned to the purchaser.

Supplementary endorsement addressing distribution of funds held in trust following a prior decision determining entitlement between vendor and purchaser in a real estate transaction.

The court had previously invited written submissions regarding entitlement to GST included in the purchase price and the cost of steel plates allegedly lost after delivery to the job-site.

After reviewing the additional submissions, the court concluded that the purchase price under the agreement of purchase and sale was $500,000 plus GST and that GST had been properly paid.

The court also accepted that $7,500 should be deducted for the steel plates.

The court directed the trust funds to be distributed primarily to the vendor with a smaller amount to the purchasers and added a corporate purchaser nunc pro tunc as a co‑plaintiff/applicant.

A commercial dispute arose following a land purchase agreement that included a separate agreement for the purchase of custom-fabricated structural steel, with $525,000 held in trust pending verification of the steel.

The purchaser claimed entitlement to the trust funds after failing to verify the steel within the contractual period, arguing that a prior settlement had been reached and that verification could not reasonably be completed.

The court found that no binding settlement was reached during negotiations between the parties.

However, the court held that the purchaser failed to act reasonably and in good faith in attempting to complete verification, particularly by refusing a reasonable proposal to share the cost of reproducing fabrication drawings necessary for verification.

The vendor was therefore entitled to most of the trust funds, subject to a possible adjustment relating to GST and steel plate costs.

The plaintiff brought an action for damages alleging the defendants made false representations regarding the financial status of two courier companies he invested in and later purchased.

The defendants counterclaimed for unpaid amounts under a share purchase agreement and for the value of retained shares.

The court dismissed the plaintiff's claim, finding he was an experienced businessman who had the opportunity to conduct due diligence and failed to prove any misrepresentations.

The court granted the defendants' counterclaims in part, ordering the plaintiff to pay $50,000 to Saini for the outstanding balance of the share purchase agreement, and $50,000 to Stanford for his unabandoned share interest in the companies.

The appellant appealed the judgment of the motion judge.

The Court of Appeal found no error in the motion judge's reasons and dismissed the appeal, awarding costs to the respondents on a partial indemnity basis.

The appellant appealed a conviction for criminal harassment under s. 264 of the Criminal Code.

The appeal argued that the trial judge erred by refusing an adjournment after the Crown indicated it would seek to amend the Information to expand the timeframe of the alleged conduct, and that the refusal created a reasonable apprehension of bias.

The appellant also challenged the finding that the actus reus and mens rea of criminal harassment were proven beyond a reasonable doubt.

The court held that decisions concerning adjournments attract deference and found no prejudice because disclosure of the earlier incidents had already been provided and the evidence would have been admissible regardless of the amendment.

The court further concluded that the trial judge correctly assessed the evidence establishing the complainant’s reasonable fear and the accused’s intent.

The conviction appeal was dismissed.

The appellants appealed a motion judge's decision to strike out their statement of claim against the Law Society of Upper Canada under Rule 21.

The appellants alleged the Law Society was liable in negligence for failing to take appropriate action against lawyers who acted for other parties.

The Court of Appeal dismissed the appeal, finding that the claim was precluded by the Supreme Court of Canada's decision in Edwards v. Law Society of Upper Canada due to a lack of proximity between the appellants and the Law Society.

The appellant challenged an order declaring that a judgment debt survived bankruptcy.

He argued that the respondent had delayed too long in bringing the application before the bankruptcy court and that a prior criminal compensation order concerning the same debt rendered further civil proceedings unnecessary.

The court rejected both submissions, finding no statutory bar, no prejudice arising from delay, and no legal basis for the proposition that the criminal compensation order displaced the respondent's bankruptcy remedy.

The appeal was dismissed.

The appellant appealed the dismissal of her application for declaratory and related relief arising from the respondent bank's freezing of her account and withdrawal of funds to cover an overdraft in a joint account held with her mother.

She argued that the applications judge failed to address non est factum and erred in not finding the bank negligent.

The court held that non est factum was not properly raised below and that the evidence did not obligate the applications judge to address it on his own motion.

The court further held that the bank was not negligent and that the appellant remained bound by her agreement to indemnify the bank for the overdraft.

The appeal was dismissed with fixed costs.