Mark A. Klaiman

The plaintiff sought a Mareva injunction against the defendants arising from the purchase of a business.

The plaintiff alleged the defendants made false representations through altered financial and business records.

The court found a strong prima facie case of fraud and a risk of asset dissipation, noting the defendants' litigation strategy of avoiding cross-examination on assets.

The court granted the Mareva injunction but limited the amount to $300,000 CDN, considering the plaintiff had mitigated its losses by reselling the business.

The defendant brought a motion to remove the plaintiff's counsel of record, arguing a disqualifying conflict of interest and that counsel was a likely material witness.

The court found that the counsel had previously acted for the defendant in drafting a trust agreement and had received relevant confidential information regarding an income-splitting arrangement central to the current litigation.

The court also determined that counsel was a necessary witness regarding a key shareholder's knowledge of the income splitting.

The motion was allowed and counsel was removed.

The insurer of a Hindu temple moved for summary judgment seeking a declaration that it owes no duty to defend the temple in a claim brought by a plaintiff alleging sexual abuse by a temple employee.

The insurer argued that the loss was excluded from coverage under Common Exclusion 7 (sexual abuse exclusion) and that the temple breached its obligation to report the claim, resulting in irreparable prejudice.

The court granted the motion, finding that Common Exclusion 7 applied to exclude the loss in its entirety, making the other issues moot.

Pine Glen Thorold Inc. appealed the dismissal of its action against Rolling Meadows Land Development Corporation and Glen Gordon.

The motion judge had struck the claim on the basis that it did not disclose reasonable causes of action.

The Court of Appeal dismissed the appeal, but on different grounds.

Rather than analyzing each individual cause of action, the court found that the claim as a whole constituted an abuse of process.

Pine Glen sought to relitigate issues that were already decided or could have been raised in prior applications between the parties, and its claim was primarily based on the respondents' conduct during the previous litigation.

The court held that absent exceptional circumstances (such as viable claims for malicious prosecution or abuse of process), parties should not be permitted to pursue civil actions based on the conduct of prior litigation.

The court granted summary judgment in favour of the Plaintiffs to enforce personal guarantees and obtain possession and payment under a collateral mortgage, except for the Plaintiffs’ claim for internal collection costs, which was dismissed.

The Defendants argued the property was sold improvidently and challenged the Plaintiffs’ entitlement to internal collection costs.

The court found no triable issue regarding the sale, as the process met the Soundair factors, and dismissed the claim for collection costs due to lack of evidence and non-compliance with the contract’s requirements.

The applicants, minority shareholders of 2823363 Ontario Inc., brought motions for leave to be represented by non-lawyers and to enforce a prior court order directing the release of trust funds to the corporation.

The respondent majority shareholder opposed the enforcement, arguing that it had reconstituted the corporation's board of directors and revoked the instructing authority of the sole director who sought the funds.

The court granted leave for the non-lawyer representation, finding that the corporations were closely held and unable to afford counsel.

The court also granted the motion to enforce the prior order, holding that the majority shareholder's attempt to appoint additional directors breached the express terms of the unanimous shareholder agreement, which limited the board to one director.

The appellant appealed a decision by Tarion Warranty Corporation denying his claim for delayed occupancy compensation under the Ontario New Home Warranties Plan Act.

The builder had unilaterally extended the Firm Occupancy Date due to the COVID-19 pandemic, relying on the Unavoidable Delay provisions in the Addendum to the Agreement of Purchase and Sale.

The Tribunal found that the builder met the notice and evidentiary requirements of section 5 of the Addendum in setting the new Firm Occupancy Date.

Consequently, the appellant was not entitled to compensation from the guarantee fund for delayed occupancy, and the appeal was dismissed.

The plaintiff sought costs of $20,000 on a substantial indemnity basis against the defendant Lynch following a successful motion for a Certificate of Pending Litigation.

The defendant argued costs should be in the cause or fixed at $5,000.

The court found the plaintiff was successful and the motion should have been resolved on consent, but reduced the requested amount for proportionality, fixing costs at $14,000 payable by the defendant Lynch.

The Applicants sought damages and forfeiture of a deposit arising from a failed residential property purchase and sale agreement.

The Respondents argued they were entitled to not close due to the Applicants' innocent material misrepresentation regarding municipal taxes and alleged bad faith.

The court found that an "entire agreement" clause in the contract precluded reliance on the alleged misrepresentation, and consequently, the bad faith argument failed.

The Applicants were awarded damages of $425,319.69 and the $100,000 deposit was forfeited.

The applicant, Metropolitan Partners Group Administration, LLC, sought an order appointing a receiver over the property of the respondent, International Credit Experts Inc., due to the respondent's defaults on a financing agreement.

The respondent opposed the appointment and requested a third adjournment, arguing for a private sale of its loan portfolio.

The court denied the adjournment, finding the matter urgent given the procedural history and the respondent's conduct, including a disputed guarantee and asset transfer.

The court determined it was just and convenient to appoint a receiver, emphasizing the respondent's continued defaults, lack of financial transparency, and the need for a court-supervised sale process to maximize stakeholder recovery.

A sealing order for commercially sensitive information was also granted.

The appellant seller appealed from a Court of Appeal decision that held exclusion clauses in a contract for the sale of topsoil were insufficient to oust the implied condition under s. 14 of the Sale of Goods Act that goods must correspond with their description.

The buyer had waived its right to test the topsoil before shipment, and the contract contained clauses providing that the seller would not be responsible for the quality of the material if the buyer waived those rights.

The Supreme Court held that the exclusion clauses constituted an express agreement under s. 53 of the Sale of Goods Act, applying modern contractual interpretation principles from Sattva and Tercon.

The majority restored the trial judge's judgment, finding the objective intention of the parties was for the buyer to accept the risk that the topsoil would not meet the previously supplied specifications if it failed to test the soil.

Côté J. dissented, concluding the word 'quality' in the exclusion clauses could not be expanded to cover defects in description or identity.

This motion arose from a partnership dispute concerning the joint purchase of a pre-build home.

The plaintiff sought to either extend a two-year undertaking preventing the defendant, who held title, from selling or encumbering the property, or, in the alternative, an order for a Certificate of Pending Litigation (CPL).

The court denied the request to vary the consent order extending the undertaking, finding no mutual intent for an extension.

However, the court granted the CPL, determining that the plaintiff had established a triable issue regarding their interest in the land, and that a CPL was warranted despite the availability of a damages claim, given the property was the subject matter of the claim and to prevent potential dissipation of assets.

The defendants brought a motion to strike the plaintiff's amended statement of claim under Rule 21.01(1)(b) for failing to disclose a reasonable cause of action.

The plaintiff, a home builder, had sued the defendant land developer and its principal for breach of contract, various torts, and oppression arising from a completed agreement of purchase and sale.

The court systematically analyzed all nine causes of action pleaded by the plaintiff and found that each failed to plead the necessary material facts or relied on non-existent legal duties.

The court struck all claims without leave to amend and dismissed the action.

The appellant homeowner appealed a Tarion Warranty Corporation decision denying his claim for compensation relating to alleged defects in his new home, specifically cold areas in the kitchen and mudroom.

The builder had previously undertaken repairs based on expert recommendations.

The Tribunal found that the appellant failed to provide expert evidence to support his claim that the repairs were insufficient.

Relying on the respondent's expert evidence that the air leakage issues had been resolved and met Ontario Building Code requirements, the Tribunal concluded there was no warrantable defect and directed Tarion not to pay the claim.

The appellant appealed an order striking his statement of defence due to non-compliance with discovery obligations.

The Court of Appeal found that the motion judge was not fully informed by respondent's counsel regarding the appellant's attempt to retain new counsel and seek an adjournment.

The court held that striking a pleading is a last resort and that the motion judge should have considered the merits and granted a less severe remedy.

The appeal was allowed, the order set aside, and the statement of defence restored.

The defendant, Hari Kaush Developments Inc. (HKD), brought a motion under sections 47 and 44(5) of the Construction Act to strike the statement of claim, discharge the plaintiffs' claim for lien, and return posted lien security.

HKD argued the lien was untimely and excessive.

The court found triable issues regarding both the timeliness of the lien (due to ambiguity on whether the old or new Construction Act lien period applied and conflicting evidence on the last date of supply) and the quantum of the claim (due to unclear accounting and disputed extras, where oral approval or acquiescence might override written approval requirements).

Consequently, the motion was dismissed in its entirety.

No costs were awarded to either party due to the plaintiffs' egregious delay in complying with undertakings.

The appellant, Rolling Meadows Land Development Corporation, appealed judgments dismissing its motion to convert applications to an action, finding a purchase and sale agreement binding, and finding no breach of contract by the respondent, Pine Glen Thorold Inc. The appeal raised arguments concerning the refusal to convert applications, a claim of unilateral mistake in signing the contract, and the quantification of renovation costs.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's decisions.

The court affirmed that the application judge was entitled to adjudicate the issues on the record, that no unilateral mistake was established given the appellant's sophistication and the contract's clarity, and that the renovation quantification was properly determined.

The plaintiff brought an action against his brother's former wife, claiming she held his interest in a property in trust.

The property had been sold and the proceeds disbursed pursuant to family law proceedings between the brother and his former wife.

The plaintiff argued for an express, constructive, or resulting trust.

The court dismissed the action, finding insufficient evidence of an express trust, no equitable obligation or unjust enrichment to support a constructive trust, and that the presumption of resulting trust did not apply.

The Appellants appealed the City of Toronto's dismissal of their complaint regarding development charges imposed for the construction of a new single dwelling on their property.

The Appellants argued that fees paid during a 1980 lot severance should exempt them from current development charges, and that the proposed construction was an as-of-right development.

The Tribunal found that the proposed construction constituted a 'development' under the City's Development Charges By-law, triggering the charges.

The Tribunal also held that the demolition of an existing garage did not qualify for a demolition reduction, which applies only to existing dwelling units.

The appeal was dismissed.

Following a successful motion to strike the plaintiff's statement of claim as an abuse of process, the defendant sought substantial indemnity costs.

The court noted the defendant's initial failure to file a costs outline but accepted the late submission under Rule 57.01(5).

Given the finding of abuse of process and the plaintiff's failure to heed prior judicial warnings about the claim being a collateral attack on a criminal conviction, the court awarded the defendant substantial indemnity costs fixed at $12,000.