Michael Simaan

After repeated non-compliance with production and undertaking orders, including a peremptory and then last-chance order, pleadings were struck.

The court found no basis to interfere with the motion judge’s discretionary determination and upheld the sanctions.

This costs endorsement follows the dismissal of the action by Gloria Rajkumar and the family trust against Roger Rajkumar, and the granting of the counterclaim by Rita Rajkumar against Gloria and the Simac companies.

The court awards costs to Roger and Rita, applying the principles of partial and substantial indemnity, and addresses the reasonableness of the amounts claimed, the effect of a Rule 49 offer, and the connection between the main action and the counterclaim.

The court dismissed Bellsam Contracting Ltd.'s motion to oppose confirmation of Associate Justice Robinson’s interim report in a construction lien dispute.

The decision confirms that the December 17, 2018 budget document was the governing contract, not a later, higher-priced quote.

The court found no error in the Associate Justice’s findings of fact or law, and emphasized the deference owed to such findings on review.

Bellsam’s new legal argument regarding conditional acceptance was rejected as it was not raised at trial and lacked evidentiary support.

The court dismissed the main action against Roger Rameshwar Rajkumar, finding no basis to pierce the corporate veil and impose personal liability for environmental damage to property.

The court granted the counterclaim of Rita Josomatee Rajkumar and 1526381 Ontario Inc. against Gloria Rajkumar, Superior Independent Medical Assessment Centre Ltd., and Simac Canada Inc., finding that Rita was constructively dismissed and entitled to 18 months’ notice and damages.

The decision addresses the legal standards for piercing the corporate veil, the distinction between employee and independent contractor, and the requirements for constructive dismissal and reasonable notice.

The plaintiff, Syed Bahauddin, was employed as a chef at the defendants’ restaurant for over 20 years before being dismissed without cause.

After settling a wrongful dismissal action, the defendants failed to pay the full judgment.

The plaintiff sought and was granted an order requiring the garnishee, 1436318 Ontario Ltd., to pay the outstanding amount.

The court found the mortgage between related parties to be valid and enforceable, rejected claims that it was a sham, and concluded that the equities favoured the plaintiff.

The court also awarded costs to the plaintiff.

The appellants appealed a summary judgment finding them liable for breach of an agreement of purchase and sale for a residential property.

The appellants argued that the agreement never became binding because the respondent accepted an extension offer one day late.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the appellants elected to treat the contract as ongoing by subsequently waiving conditions, paying a second deposit, and engaging in conduct consistent with a binding agreement.

The expectation damages award of $142,757.89 was upheld.

In competing applications, the parties sought interpretation of a Purchase and Sale Agreement concerning a commercial property.

Integration International Capital Limited (IICL) contended it was entitled to a $293,000 deduction from the purchase price related to replacing a landscaping Letter of Credit (LOC), and sought damages.

Helmsbridge Holdings ULC (Helmsbridge) sought specific performance to compel IICL to replace the LOC, arguing no such deduction was warranted.

The court found that the $293,000 was not an adjustment to the purchase price and that IICL's failure to replace the LOC or provide cash collateral meant it owed the full purchase price.

The court also denied specific performance to Helmsbridge, ruling that damages had not yet accrued and the remedy was not appropriate given the contingent nature of the liability.

Both applications were dismissed.

In competing applications, the parties sought interpretation of a Purchase and Sale Agreement concerning a commercial property.

Integration International Capital Limited (IICL) contended it was entitled to a $293,000 deduction from the purchase price related to replacing a landscaping Letter of Credit (LOC), and sought damages.

Helmsbridge Holdings ULC (Helmsbridge) sought specific performance to compel IICL to replace the LOC, arguing no such deduction was warranted.

The court found that the $293,000 was not an adjustment to the purchase price and that IICL's failure to replace the LOC or provide cash collateral meant it owed the full purchase price.

The court also denied specific performance to Helmsbridge, ruling that damages had not yet accrued and the remedy was not appropriate given the contingent nature of the liability.

Both applications were dismissed.

The defendants brought a motion for security for costs against the plaintiff, Neuhaus Management Ltd. (NML), seeking $64,530.91 on a partial indemnity scale.

The motion was brought under Rule 56.01(1)(d) of the Rules of Civil Procedure, alleging NML had insufficient assets in Ontario to pay costs.

The court found that the defendants met their initial onus, relying on NML's own representations and evidence from related proceedings regarding its financial difficulties.

Applying a holistic approach, the court balanced the plaintiff's right to proceed with its claim against the defendants' right to an enforceable costs award.

The court rejected arguments that the plaintiff's claim was meritless or that the defendants delayed in bringing the motion.

Ultimately, the court ordered NML to post $30,000 in security for costs, payable in three instalments, finding this amount to be fair, reasonable, and striking the necessary balance.

The defendants, Guangcheng Zhu and Guru Constrarchit Ltd., brought a motion to set aside a default judgment.

The court applied the five-factor test for setting aside default judgments, finding that while the motion was brought promptly and there was an arguable defense for conversion, breach of trust, and punitive damages, the defendants failed to provide a plausible explanation for their default, having made a conscious decision not to participate in the proceedings until their bank accounts were frozen.

The court partially granted the motion, setting aside only the portion of the default judgment related to conversion, breach of trust, and punitive damages ($99,628.58), while upholding the remainder of the judgment, including damages for breach of contract and costs.

This is an appeal from a trial judgment that awarded the respondent $600,000 in damages and set aside the transfer of the appellants’ matrimonial home as a fraudulent conveyance.

The trial judge found that one appellant failed to return funds obtained from the respondent for a joint venture that never materialized and subsequently fraudulently conveyed the matrimonial home to his wife for nominal consideration to avoid a breach of trust claim.

The appellants challenged the trial judge's findings of fact regarding the amount owed, fraudulent intent, and the wife's payment of good consideration.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings, including the presence of multiple badges of fraud.

This summary judgment motion concerned a failed real estate purchase of a newly constructed home.

The plaintiff sought damages for breach of contract, while the defendants sought the return of their deposits.

The central dispute revolved around whether the agreement was void due to the plaintiff's late acceptance of a conditional term extension, despite a "time is of the essence" clause.

The court found that the defendants, by their subsequent actions (delivering a waiver, paying a second deposit, and later acknowledging inability to close while requesting mitigation), affirmed the contract.

The court concluded the contract was binding and anticipatorily breached by the defendants.

Damages were awarded to the plaintiff for the difference in sale price and some carrying costs, but not for all claimed expenses due to insufficient documentation.

The applicants, Mejo Varghese and Bincy Joseph, brought an application seeking the return of their $60,000 deposit after refusing to close on the purchase of a new home constructed by the respondent, Hogg Construction Ltd. The applicants alleged a material breach of the Agreement of Purchase and Sale (APS) due to a significant reduction in the living room size (approximately 3'6" shorter than planned), which they argued was not a "minor change" permitted by the contract.

The respondent contended the applicants misinterpreted the plans and that any changes were minor.

Applying the principle from Stefanovska v. Kok, the court found the reduction in the living room's length was objectively significant, affecting the property's use and enjoyment, and thus constituted a major change and a repudiation of the APS.

The applicants were not obligated to complete the transaction.

This is a costs decision following a trial of an issue in a construction lien action.

The Torgerson Defendants sought substantial indemnity costs from Bellsam Contracting Limited.

The court found the Torgerson Defendants' overall costs claim excessive and disproportionate, particularly given the limited scope of the trial of an issue.

While acknowledging the Torgerson Defendants' success and their beating an offer to settle, the court significantly reduced the claimed costs, fixing them at $287,500 inclusive of HST and disbursements, payable by Bellsam.

The decision also addressed the recoverability of eDiscovery specialist fees.

The applicant (Purchaser) sought the return of a $200,000 deposit paid for the purchase of a Volkswagen dealership's assets, arguing the Asset Purchase Agreement (APA) was terminated due to the failure to obtain necessary approvals from the Ontario Motor Vehicle Industry Council (OMVIC) and Volkswagen Group Canada (VW Canada).

The respondent (Vendor) refused, asserting the Purchaser breached its contractual obligations to use "reasonable commercial efforts" and act "on a timely basis" to secure these approvals.

The court found that the Purchaser indeed breached the APA by delaying its OMVIC application, failing to provide required documentation, and intentionally not signing and returning VW Canada's Letter of Intent by the stipulated deadline.

Consequently, the application was dismissed, and the deposit was forfeited to the Vendor.

This endorsement addresses several requests to vary existing Mareva, Norwich, Anton Piller, and Certificate of Pending Litigation (CPL) orders.

The Gendelman Defendants sought funds for living and legal expenses, continued funding for real estate projects, the lifting of a CPL on a property for sale, directions on seized evidence, and the return of their passports.

The court granted limited interim funds for living and legal expenses, adjourned the CPL issue for further discussion, directed the establishment of a protocol for seized evidence, and ordered the return of the Gendelmans' passports, emphasizing the high threshold for infringing liberty by retaining passports.

This case involved two consolidated actions arising from a failed joint real estate venture.

The plaintiff, 2270752 Ontario Inc., sued Baljit Dhaliwal for breach of trust for failing to return $600,000 advanced for the venture.

Concurrently, the plaintiff sought to set aside a fraudulent conveyance of Baljit Dhaliwal's matrimonial home to his wife, Arvinder Dhaliwal, alleging it was done to defeat creditors.

The court found Baljit Dhaliwal liable for breach of trust and ordered the return of the $600,000.

The court also found the transfer of the matrimonial home to be a fraudulent conveyance under the Fraudulent Conveyances Act, citing multiple "badges of fraud," and set it aside.

The actions against Century 21 New Star Realty Inc. and Arvinder Dhaliwal (for the breach of trust claim) were dismissed, as they were not involved in the breach of trust or vicariously liable.

The plaintiff brought a motion to compel the defendants to answer undertakings and refusals given during examinations in aid of execution, and to produce documents.

The court found that the plaintiff had established a sufficient connection between the individual defendants and various corporate entities and properties to justify the questions asked.

The court ordered the defendants to answer the outstanding questions, produce the requested documents, reattend examinations within 30 days, and pay costs for both the examinations and the motion.

The third party moved to strike several paragraphs of the defendant's affidavit filed for a simplified procedure trial.

The moving party argued the paragraphs introduced evidence refused on discovery and relied on inadmissible hearsay.

The court struck two paragraphs: one that improperly adopted another witness's affidavit and one containing inadmissible hearsay.

The court dismissed the remainder of the motion, finding the moving party was not prejudiced by the discovery refusal and that the other hearsay statements fell under the admissions exception.

The applicant landlord sought to terminate a commercial lease and obtain vacant possession due to the respondent tenant's non-payment of rent, failure to maintain insurance, and unauthorized residential use of the premises.

The tenant, who operated a martial arts studio, had been forced to close due to COVID-19 provincial orders and paid only 25% of the rent.

The court declined to grant the landlord's application, finding that the default was clearly related to the global pandemic and government-mandated shutdown.

The court exercised its equitable jurisdiction to grant the tenant relief from forfeiture, conditional upon the tenant providing proof of insurance and ceasing residential use within ten days.