Leo Klug

Vertical Horizons Contracting Inc. appealed a trial judgment that ordered it to pay the City of Markham $22,291.25 after a set-off, stemming from a breached contract for sanitary sewer system replacement.

The appellant argued that issues with water and soil caused additional expenses and challenged the trial judge's finding of contractual breach.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or interpretation of the contract, which held the appellant responsible for the work methodology and the impacts of site conditions beyond the initial 30 metres of pipe installation.

The plaintiff, FirstService Residential Ontario, brought a motion for an order directing the parties to comply with a proposed discovery plan.

The motion primarily concerned disputed provisions regarding the discovery of documents from the defendants, who were former employees and a competitor accused of breach of fiduciary duty, breach of contract, breach of confidence, conspiracy, and unlawful solicitation of clients and employees.

The court ruled on the relevance of various categories of documents, including employment agreements, communications related to client and employee solicitation, and financial statements, and imposed the discovery plan with specific inclusions and exclusions.

The defendant, Amirhossein Barati, brought a motion to strike the statement of claim against him, arguing it disclosed no reasonable cause of action based on the "sealed contract" rule.

The plaintiffs alleged Barati was the undisclosed principal in a failed real estate transaction where the agreement of purchase and sale was signed by the co-defendant, Arash Maleki.

The court examined whether the standard OREA form, containing "IN WITNESS whereof I have hereunto set my hand and seal" and a pre-printed "seal" mark, constituted a contract under seal.

Applying Supreme Court and Court of Appeal jurisprudence, the court found that such pre-printed language alone does not invariably establish a conscious and deliberate act to create a contract under seal.

The motion to strike was dismissed, as was a contingent cross-motion by the co-defendant.

The plaintiff brought a motion in writing for an order compelling the defendants to produce a further and better affidavit of documents.

After the defendants filed their responding record and factum, the plaintiff filed multiple supplementary motion records containing new expert requests, which the defendants had no opportunity to review before leaving the country.

The court adjourned the motion sine die, directing the plaintiff to file a single, consolidated motion record and factum in compliance with the Rules of Civil Procedure before the motion could proceed.

This case involved a real estate brokerage's claim for a $36,000 commission from property purchasers.

The court found that the brokerage, York National Realty Inc., had repudiated its Buyer Representation Agreement (BRA) with the purchasers by presenting contradictory Confirmation of Cooperation and Representation (CCR) forms that stated it was only providing customer service to the buyers while representing the seller.

Furthermore, the brokerage breached its fiduciary duties by failing to disclose material facts, including the fact that the buyers would be responsible for the commission and the familial relationship between the brokerage owner and the seller, prior to the final Agreement of Purchase and Sale.

The court dismissed the plaintiff's action for commission and awarded costs to the defendants.

The plaintiff brought a motion for summary judgment to recognize and enforce a default judgment obtained in Maryland against the defendants for $107,797.63 USD.

The defendants opposed the motion, arguing that the Maryland court lacked jurisdiction, the judgment was obtained by fraud, natural justice was denied, and enforcement would be contrary to public policy.

The court found that the Maryland court properly assumed jurisdiction, the defendants failed to prove fraud or denial of natural justice, and there was no genuine issue requiring a trial.

The motion to enforce the foreign judgment was granted.

The moving party sought costs after being mostly successful on a motion to prohibit the responding party's counsel from appearing on a pending motion to quash.

The court found the moving party was entitled to costs but reduced the requested amount by 50% due to divided success and the straightforward nature of the motion.

Costs were fixed at $6,200 for the moving party and $500 for the supporting party, payable after the final determination of the remaining motions.

The appellants, estate trustees of Albert Curé's estate, appealed a trial judgment that interpreted a cohabitation agreement between Albert and Helen Kilitzoglou.

The trial judge found that Albert intended to care for Helen for the rest of her life and ordered the estate to pay all capital repairs and expenses to the residence after the initial three-year period, and apportioned realty taxes and insurance on a 50/50 basis.

The trial judge also found bad faith on the part of the trustees and awarded punitive damages.

The Court of Appeal allowed the appeal, finding that the trial judge erred by allowing his view of the factual matrix to overwhelm the words of the contract.

The dominant theme of the agreement was that each party would remain financially independent with no obligation to support the other.

The court held that Helen was responsible for all ordinary and reasonable costs of maintaining the residence after three years, including realty taxes and insurance, and that the estate was responsible only for the outstanding mortgage.

The respondent brought a motion to prohibit the applicants' counsel from appearing on a pending motion to quash a summons to witness, arguing that the counsel was the primary source of contentious evidence.

The respondent also sought to strike portions of the applicants' affidavits.

The court granted the motion to prohibit counsel from appearing, finding it improper for a lawyer to act as counsel when they are the source of important and contentious evidence, even if provided via information and belief.

The motion to strike the affidavits was dismissed as premature.

The appellant, an accounting firm's client, appealed a judgment in favour of Collins Barrow Toronto LLP for unpaid audit services invoices.

The appellant argued the application should have been converted to an action based on allegations of negligence in service provision and that certain invoices were barred by the two-year limitation period under the Limitations Act, 2002.

The Court of Appeal upheld the application judge's decision, finding no error in determining the matter under the Rules of Civil Procedure based on contract interpretation, rejecting the conversion argument due to insufficient evidence of negligence and damages, and finding the limitation period analysis sound based on the express terms of the engagement letters.

The plaintiffs brought a motion seeking leave to amend their statement of claim and an order compelling the defendants to answer outstanding undertakings and refusals from examinations for discovery.

The action involves allegations that the defendants, former employees, misappropriated the plaintiffs' business.

The court ordered the defendants to produce a personal computer and bank statements, finding them relevant to the alleged misappropriation and destruction of original invoices.

The court also ordered the defendants to produce a further and better affidavit of documents, including financial records in native format.

The plaintiffs were granted leave to amend their claim to add the tort of deceit and a claim for equitable set-off regarding an Employment Standards Officer's wage order, with the court declining to apply issue estoppel to prevent the set-off claim.

The defendants' request for case management was dismissed.

This endorsement addresses the costs arising from three consolidated legal actions and subsequent motions following a lengthy trial.

The primary issue was whether the Estate of Albert Curé was entitled to substantial indemnity costs from Helen Kilitzoglou and Life Line Manufacturing Inc. The court found that the Estate's offers to settle did not meet the criteria under Rule 49.10(2) for cost consequences, nor did they justify substantial indemnity under Rule 57.01.

While allegations of civil conspiracy were not found to warrant substantial indemnity due to the high-conflict nature and mutual responsibility, unsubstantiated allegations of fraud regarding an $800,000 dividend and improper receiver appointment were deemed reprehensible.

Considering the divided success, with the Estate being substantially more successful overall, the court awarded the Estate 50% of its partial indemnity costs, plus a $5,000 premium for the fraud allegations.

The court heard two motions: the defendants sought further production of documents, and the plaintiffs sought an order for the defendants to attend examinations for discovery.

The court granted some of the defendants' production requests, ordering the plaintiffs to produce unredacted financial statements and to request files from their auditors (PWC) and an accounting firm (HLB).

The court dismissed the plaintiffs' motion for discovery attendance, finding that the defendants had acted reasonably in not attending previously scheduled examinations due to the plaintiffs' incomplete production.

The court emphasized the relevance and proportionality rules for production, stating that if a document contains relevant information, it must be disclosed in its entirety without redaction.

The plaintiff, Tanya Curé, moved for an order to have her action tried together with an action commenced by the defendant, Helen Kilitzoglou.

The defendant opposed, arguing that her action was ready for trial and consolidation would cause prejudice due to the plaintiff's action not being ready for discovery.

The court dismissed the motion, finding that the legal issues in the two actions were distinct, the risk of inconsistent factual findings was not compelling given a prior detailed decision and the potential application of issue estoppel, and the defendant's right to discovery in the plaintiff's action outweighed the advantages of consolidation, especially considering the defendant's action was scheduled to begin shortly.

The plaintiff brought a motion requesting an order to transfer the proceeding into case management, which the defendants opposed.

The court considered the factors under Rule 77.05(4) of the Rules of Civil Procedure, including the complexity of issues, public importance, number of parties, anticipated court intervention, discovery time, and any substantial delay.

Despite the proceeding being over two years old and ongoing disagreements between the parties regarding discovery and amendments, the court found no substantial delay or demonstrated need for court intervention to warrant case management at that time.

The plaintiff's request for case management was dismissed, but the court ordered all parties to deliver sworn affidavits of documents and Schedule "A" productions by a specific date to facilitate the progression of discovery.

In a construction lien action, the defendant moved to oppose confirmation of a master's costs decision following trial.

Prior to trial, the defendant had delivered an offer to settle for $75,000 inclusive of costs and interest.

After trial, the plaintiff recovered a total amount for principal and costs that was approximately $3,000 less than the settlement offer, but the master declined to apply the cost consequences under Rule 49.10 of the Rules of Civil Procedure on the basis that the offer was vague because it included unquantified costs.

The court held that the inclusion of costs within a fixed settlement amount did not render the offer incapable of meaningful comparison and that the master erred in failing to apply Rule 49.10.

The court ordered that the plaintiff receive partial indemnity costs to the date of the offer and the defendant receive partial indemnity costs thereafter.

Following a trial in which the defendants successfully defended multiple claims including breach of contract, spoliation, unjust enrichment, and property-related torts, the court determined costs.

The defendants sought substantial indemnity costs and recovery of professional fees for several witnesses characterized as participating experts.

The court confirmed that participating experts may justify reasonable compensation where their expertise arises from involvement in the underlying events.

Applying Rules 49 and 57.01 of the Rules of Civil Procedure and principles of proportionality, the court awarded partial indemnity costs to the date of the defendants’ offer to settle and substantial indemnity costs thereafter.

Following a summary judgment decision dismissing a limitation period defence, the court addressed costs arising from multiple related motions.

The plaintiff sought partial indemnity costs for the successful summary judgment motion and for two additional motions involving the corporate defendant: an unsuccessful motion to set aside noting in default and a successful motion for default judgment.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure, the court exercised its discretion to award reasonable fixed costs reflecting the work required for each motion.

Costs of $1,000 each were ordered against the corporate defendant for the two ancillary motions, and $9,000 was ordered against the individual defendant for the summary judgment motion.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action based on the expiry of the applicable limitation period.

The plaintiff landlord sued the corporate tenant for breach of a commercial lease and the personal defendant director for alter ego liability, inducing breach of contract, intentional interference with contractual relations, and oppression.

The court held that the six-year limitation period under the Real Property Limitations Act applied to the breach of lease claim against the director as an alter ego.

The court found that the two-year limitation period under the Limitations Act applied to the tort and oppression claims, but these claims were not discoverable before December 14, 2010.

The motion for summary judgment was dismissed, and summary judgment was granted against the personal defendant dismissing his limitation period defence.

The plaintiff private mortgage lender sought summary judgment in four actions for principal, interest, renewal fees, and other charges under several short‑term mortgage agreements guaranteed by individual defendants.

The parties admitted the principal and contractual interest owing, and the court granted partial summary judgment for those amounts.

Disputed issues included recurring mortgage renewal fees, a daily fee of $100 under one loan, and legal fees claimed by the lender.

The court held there was no contractual basis for recurring monthly renewal fees beyond the single agreed extension, reduced claimed legal fees to a reasonable amount, and found the $100 daily fee would exceed the criminal interest rate under s. 347 of the Criminal Code or was otherwise unconscionable under the Unconscionable Transactions Relief Act.

The court therefore limited recovery to principal, agreed interest, and certain reasonable fees.