Sean N. Zeitz

The plaintiff law firm obtained an ex parte order for a writ of possession over a property to enforce a guarantee for unpaid legal fees.

The guarantor, a non-party to the original action, moved to set aside the order on the basis that the law firm failed to make full and fair disclosure of material facts, specifically an outstanding stayed appeal and the debtor's bankruptcy, which were relevant to the escrow conditions of the consent.

The court found that the law firm did not scrupulously disclose all relevant facts to the associate judge.

The motion to set aside the writ of possession was granted, and the law firm's cross-motion to sell the property was dismissed without prejudice.

The appellant bank appealed the dismissal of its civil fraud claim arising from a corporate loan application supported by an allegedly false personal financial statement.

The court held that the application judge correctly applied the elements of civil fraud, including the recklessness branch, and was entitled to find that the respondent neither prepared nor signed the impugned financial statement and reasonably believed the financing was for a legitimate business.

The court further held that the bank’s own evidence established reliance only on the false personal financial statement, not on other alleged misrepresentations in the broader loan application.

No palpable and overriding error or inadequacy of reasons was shown, and the appeal was dismissed with costs.

This is a costs ruling following a complex fourteen-day combined family and civil trial.

The trial involved equalization payment disputes between spouses exceeding $10.5 million, unequal division claims, post-valuation date adjustments, fraud and oppression allegations, and a civil action for fraudulent conveyancing.

The husband was ordered to pay the wife an equalization payment of $1,054,267 and the wife was ordered to pay the husband $1,000,000 for oppression and punitive damages.

The court addressed costs claims from the wife and a third-party defendant, finding the civil action unnecessary and awarding limited costs to the wife for a specific pre-trial motion, while awarding substantial costs to the third-party defendant who successfully defended against fraud allegations.

The Court of Appeal for Ontario dismissed Lynne Catherine Foulidis’s motion for a panel review and to set aside the Deputy Registrar’s order dismissing her appeal for delay.

The court found that the motion judge correctly concluded the appeal lacked merit and that the criteria for an extension of time to perfect the appeal were not met.

The court reviewed the trial judge’s findings regarding the retainer agreement and legal fees, and found no palpable and overriding error.

Costs were awarded to the respondent.

The Court of Appeal for Ontario dismissed the appeal in this commercial landlord-tenant dispute.

The trial judge found that the tenant, 2682543 Ontario Inc., repudiated the lease for restaurant premises and that the landlord, 720443 Ontario Inc., properly accepted the repudiation and terminated the lease.

The tenant and its guarantor, Shahab Rashid Savojbolaghi, were held liable for damages.

The Court rejected the tenant’s arguments regarding joint occupancy and the timing of possession, upholding the trial judge’s interpretation of the lease and the finding of repudiation.

The moving party sought an extension of time to perfect her appeal from a trial judgment awarding her former legal counsel approximately $481,000 in unpaid legal fees.

The responding party opposed the motion.

The Court of Appeal dismissed the motion, finding that while the moving party met the criteria for continuing intention to appeal, explanation for delay, and lack of prejudice, the putative appeal had virtually no chance of success as it primarily attacked the trial judge's factual findings without demonstrating palpable and overriding error.

The plaintiff landlord sued the defendant tenant and its guarantor for breach of a commercial lease.

The tenant failed to take possession and begin fixturing the premises, arguing the landlord had not completed its work to satisfaction.

The court interpreted the lease, finding that the tenant was obliged to take possession when the landlord's work was "sufficiently complete to permit fixturing" not fully complete.

The tenant's failure to take possession constituted repudiation of the lease.

The court awarded the landlord damages, holding both the tenant and the guarantor liable.

Following the dismissal of the applicant's motion for a declaration that a judgment survived the respondents' bankruptcy, the successful respondents sought full indemnity costs.

The court declined to award costs, noting that the applicant had already lost the ability to collect a substantial debt due to the respondents' bankruptcy.

Relying on equitable principles and the 'fresh start' policy of the Bankruptcy and Insolvency Act, the court ordered each party to bear their own costs.

The applicant sought a declaration that debts arising from a 2016 judgment survived the respondents' discharge from bankruptcy pursuant to sections 178(1)(d) and (e) of the Bankruptcy and Insolvency Act, alleging fraud or fraudulent misrepresentation.

The court dismissed the application, finding no evidence in the original pleadings or judgment to support claims of fraud, embezzlement, misappropriation, defalcation in a fiduciary capacity, or obtaining property by false pretenses or fraudulent misrepresentation.

The court determined the debt was a breach of contract, not fraud, and that the applicant was attempting to recharacterize the debt post-bankruptcy.

The plaintiff, Jodi L. Feldman Professional Corporation, sought costs following a successful trial against the defendant, Lynne Catherine Foulidis, for legal services rendered.

The trial assessed the value of services at $480,919.93.

The plaintiff sought $276,631.63 in costs, applying partial indemnity to an Offer to Settle date and substantial indemnity thereafter.

The defendant objected on grounds of reasonableness, proportionality, insufficient docket details, and an alleged agreement for summary trial costs limits.

The court largely agreed with the plaintiff's entitlement to costs but made reductions for excessive claims related to statement of claim drafting, a charging order motion, and mediation, ultimately fixing costs at $240,118.50 all-inclusive.

The plaintiff, a private mortgage lender, brought a summary judgment motion against its title insurer for an additional $72,000 in losses arising from title fraud.

The dispute centered on whether the $72,000, representing prepaid interest withheld from the loan advance, constituted an "actual monetary loss" covered by the policy.

The defendant insurer argued it was not a loss as the funds were never advanced to the borrower.

The court, applying principles of insurance contract interpretation (broad coverage grant, narrow exclusions/limitations), found that the withholding of interest was an accounting set-off and the plaintiff's actual loss was the full principal amount less recoveries.

The court concluded that the $72,000 interest was part of the insured loss.

Summary judgment was granted to the plaintiff for $70,882.21, plus prejudgment interest and costs.

The applicant mother brought a summary judgment motion seeking declarations against the respondent father and the Director of Land Titles.

The mother sought declarations that she and the father were spouses, that the Newmarket property was a matrimonial home, and that she was entitled to compensation from the Land Titles Assurance Fund due to a fraudulent mortgage taken by the father.

The court dismissed the claims for declaratory relief against the Director, finding it lacked jurisdiction to determine compensation from the Fund at first instance, as the statutory scheme designates the Director for such determinations, subject to appeal.

The court also found that the mother had not met the summary judgment test for the relationship issues due to conflicting evidence regarding a foreign divorce and separation agreement.

The issue regarding setting aside the TELB mortgage settled.

The Heidari Creditors, as assignees of the trustee in bankruptcy, sought an order compelling a representative of Sherwood Custom Homes Inc. to be examined under subsection 163(1) of the Bankruptcy and Insolvency Act.

Their theory was that the bankrupt's former spouse's salary at Sherwood might represent funds earned by the bankrupt.

The court dismissed the motion, finding that the creditors failed to establish that Sherwood reasonably had knowledge of the bankrupt's affairs or property, and that the evidence did not reasonably support the theory that the spouse's income represented the bankrupt's earnings.

The plaintiff, Jodi L. Feldman Professional Corporation, a matrimonial lawyer, sued her former client, Lynne Catherine Foulidis, for unpaid legal fees totaling $664,323.38 incurred during a divorce proceeding.

The dispute centered on the existence of a written retainer, the quantum of fees, and alleged breaches of professional conduct by the plaintiff, including communication deficiencies and potential conflicts of interest.

The court found a valid written retainer existed and that the plaintiff's efforts were largely necessary due to the ex-spouse's non-disclosure.

While rejecting claims of excessive litigation or actual conflict of interest, the court found the plaintiff failed to meet the standard of care in communication and record-keeping regarding litigation strategy and risks.

The court fixed the amount owed for fees at $425,000 plus HST and disbursements, a reduction from the amount claimed, but significantly more than the defendant's proposed amount.

This is a ruling on a motion to disqualify a witness, Gabrielle St. George, in ongoing matrimonial and civil litigation.

Vito Ierullo sought to call Ms. St. George, the estranged sister of Rae Marie Ierullo (referred to as Ms. Adragone), to provide evidence concerning a loan assignment, the transfer of a family home, and allegations of forgery and fraudulent documents.

Rae Marie Ierullo objected, arguing the proposed evidence was largely hearsay, lacked direct knowledge, and was motivated by ill-will.

The court found the evidence to be speculative, based on animus, and largely hearsay, concluding that its admission would unnecessarily expand the scope of the trial into collateral family and estate issues.

The motion to permit Ms. St. George to testify was dismissed.

The court-appointed receiver brought a motion to approve the sale of a jointly owned property and for ancillary relief, including approval of fees and an interim distribution of proceeds.

The respondent opposed the sale, challenging the appraisals, the rejection of his own bid, and the receiver's fees.

Applying the Soundair test, the court found that the receiver made sufficient efforts to obtain the best price, considered the interests of all parties, and conducted a fair process with integrity.

The court approved the sale, the receiver's fees, and an interim distribution of the proceeds to the applicant to satisfy outstanding obligations under a prior divorce agreement.

This mid-trial ruling addresses the qualification of an expert witness, D.J. Myles Martin, proposed by the applicant (Rae Marie Ierullo) in a combined family and civil trial concerning business valuations.

The respondent (Vito Ierullo) challenged the expert's qualifications.

The court applied the Mohan and White Burgess tests for expert admissibility, considering factors such as formal education, professional qualifications, experience, and independence.

The court declined to qualify the expert, citing his lack of formal CBV accreditation, limited litigation support experience, and an undisclosed social relationship with the applicant, which raised concerns about his objectivity and non-partisanship.

In a complex, combined family and civil proceeding, the husband brought motions to further amend his pleadings and compel third-party financial disclosure shortly before a rescheduled trial.

The court dismissed the majority of the requested amendments, finding them to be an attempt to retool his narrative and expand the issues on the eve of trial.

The court ordered the third parties to file an affidavit regarding the availability of the requested records but relieved them from the balance of the summons.

Finally, the court ordered the wife to pay $40,000 in costs thrown away for a previously adjourned trial date.

The plaintiffs, Robert Salna and North Lake Estates Inc., brought a partial summary judgment motion seeking a declaration that a partnership existed with the defendants, 741980 Ontario Limited and Enzo Risi, for building houses.

The defendants brought a cross-motion to dismiss the claim as statute-barred.

The court found that a partnership existed based on a written agreement, admissions in pleadings and affidavits, and the parties' conduct.

The court also determined that the plaintiffs' claim was not statute-barred, applying sections 5(1)(a)(iv) and 11 of the Limitations Act, 2002, due to ongoing efforts to resolve the accounting dispute with the assistance of a third-party accountant.

The remaining issues regarding the partnership terms, misappropriations, and final accounting were reserved for further summary judgment proceedings.

The appellants sought to overturn a summary judgment granting the respondent recovery on a $460,000 loan secured by a promissory note.

They argued the motion judge erred in applying the summary judgment test from Hryniak v. Mauldin, failing to apply the Statute of Frauds, and enforcing an oppressive interest rate.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the motion judge's conclusion that there was no genuine issue requiring a trial.

The court affirmed that the promissory note was valid and enforceable, the Statute of Frauds did not apply due to existing written documentation and the parties' conduct, and the agreed-upon interest rate was valid.