Mervyn D. Abramowitz

The moving party law firm sought an order under Rule 15.04 of the Rules of Civil Procedure to be removed as the lawyer of record for the appellant in a receivership proceeding.

The firm had filed a notice of appeal on behalf of the appellant to prevent the sale of two condominium units, despite intending to have no further involvement.

The Court of Appeal dismissed the motion, finding that the firm had launched a 'zombie appeal' that jeopardized the receivership proceedings and abused its status as an officer of the court.

The firm was ordered to remain on the record until the final disposition of the receiver's motion to quash the appeal, prioritizing the administration of justice over the firm's interests.

The appellant estate appealed a trial judgment that found a funding option in a joint venture agreement for a condominium development to be legally unenforceable due to uncertainty.

The appellant also appealed the trial judge's determination that the valuation date for the sale of the respondent's shares, ordered as an oppression remedy, should be the date of the trial reasons rather than the date the proceedings commenced.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions that the funding option lacked essential terms and that the chosen valuation date was the fairest in the circumstances.

The appellants appealed the disallowance of their claims in a bankruptcy proposal proceeding.

They claimed a 20% beneficial interest in the proceeds of a commercial property sale based on an amended trust declaration, and advanced an unsecured claim for damages alleging oppressive conduct.

The court dismissed the appeal, finding no certainty of intention to create an express trust, no basis for a constructive trust, and no evidence of oppressive conduct by the bankrupt corporation.

The defendants' motion for security for costs was returned to the Master after a successful appeal.

The appeal judge found the Master erred by failing to consider the quality of the plaintiff's only asset, a $100,000 cash deposit held by the defendants, which could easily be transferred out of Ontario once returned.

The Master ordered the defendants to return the deposit (less a $5,000 holdback) and ordered the plaintiff to immediately post $65,000 as security for costs, noting the plaintiff was a shell corporation and the cash would likely be transferred to its parent company.

The defendants raised an issue regarding the Master's previous reasons for a costs award on the plaintiff's abandoned motion for a certificate of pending litigation.

The Master acknowledged overlooking that the defendants had filed separate costs outlines for the abandoned motion and a security for costs motion.

After reviewing the separate costs outline, the Master found the $22,015.37 sought by the defendants to be excessive, noting the motion did not proceed beyond the filing of materials and involved overlapping work.

The Master amended the previous endorsement, awarding the defendants costs of $12,500 on a substantial indemnity basis.

The plaintiff abandoned its motion for a certificate of pending litigation (CPL) after the defendants served responding materials.

The defendants sought substantial indemnity costs for the abandoned motion and brought a cross-motion for security for costs.

The court awarded the defendants substantial indemnity costs for the CPL motion, finding the plaintiff had an ulterior motive to thwart the sale of the property.

However, the court dismissed the defendants' motion for security for costs, finding that the plaintiff's $100,000 deposit currently held by the defendants constituted sufficient assets in Ontario to satisfy a costs award, and that the action was not frivolous or vexatious.

The trustee in bankruptcy brought a motion under s. 95 of the Bankruptcy and Insolvency Act to set aside a pre-bankruptcy payment as a preference.

The respondent argued the motion was time-barred under the Limitations Act, 2002.

The trustee contended that the limitation period was suspended by the stay of proceedings under s. 195 of the BIA during the bankrupt's appeal of the bankruptcy order.

The Court of Appeal held that s. 195 does not extend, suspend, or vary the limitation period, and dismissed the appeal, confirming the motion was statute-barred.

The appellant, a Swiss manufacturing company, appealed a Master's order dismissing its motion to stay a breach of contract action on the basis of forum non conveniens.

The Master had found that Ontario had a real and substantial connection to the action and that Switzerland was not clearly a more appropriate forum.

The Divisional Court dismissed the appeal, finding no palpable and overriding error or error in principle in the Master's application of the jurisdiction and forum non conveniens tests.

The appeal of the $44,000 costs award was also dismissed.

The appellants appealed a trial judgment finding them liable for the tort of deceit and ordering them to pay damages equivalent to US $7,832,083.00.

The trial judge found that the appellants falsely represented that computer equipment purchased from the respondents was destined for educational ministries in China and Australia in order to obtain special discounted pricing, when in fact the equipment was diverted to the grey market.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions that the appellants made false representations, that the respondents relied on them, and that the deceit caused the respondents' loss.

The plaintiffs made a pre-trial offer to settle for $55,000, stating they would seek an adjournment if not accepted.

The trial proceeded and concluded.

Before judgment was issued, the defendants accepted the $55,000 offer, knowing the plaintiffs believed it was no longer open.

The motions judge enforced the settlement.

On appeal, the Court of Appeal held that while the offer had not technically expired under Rule 49, the court should exercise its discretion under rule 49.09 to refuse enforcement.

It was unjust to enforce the settlement because the defendants took advantage of the plaintiffs' mistaken belief that the offer was off the table.

The appellant appealed a summary judgment dismissing its claims against the respondent Comstock for inducing breach of contract and assisting in a breach of fiduciary duty.

The motions judge had found that any breach of contract occurred before Comstock was approached and that the relationship between the appellant and the co-defendant was merely that of contractor and sub-contractor.

The Court of Appeal allowed the appeal, finding that competing inferences could be drawn from the evidence regarding the timing of the breach and the nature of the appellant's involvement in the design-build project, thereby raising triable issues.

The franchisor of a shoe repair business went bankrupt, and its assets were purchased by the appellant.

The respondent franchisees sought to assume direct tenancies with their respective landlords under s. 39(2) of the Commercial Tenancies Act.

The appellant argued that the landlords had not consented to the subleases 'in writing' as required by the Act.

The Court of Appeal held that the landlord's approval need not be in writing and can be implied by conduct.

The Court also dismissed the franchisees' cross-appeal, finding no fundamental breach of the franchise agreements by the franchisor.