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.

The appellant veterinarian appealed a decision of the Discipline Committee finding him guilty of professional misconduct and imposing a three-month licence suspension and costs.

The misconduct arose from the appellant attending a client's home unannounced to collect an unpaid bill, resulting in a physical altercation.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Committee's factual findings or penalty.

The respondent's cross-appeal seeking a condition that the appellant practise under supervision was also dismissed.

The appellant veterinarian appealed a 12-month licence suspension and related conditions imposed by the Discipline Committee for professional misconduct, including false advertising and failing to follow client instructions.

The College cross-appealed the Committee's decision to allow the appellant to own a mobile veterinary practice post-suspension.

The Divisional Court dismissed both appeals, finding the penalty was supported by evidence, adequately reasoned, and not disproportionately harsh given the appellant's prior disciplinary record.

The court also found no error in the Committee's distinction between clinics and mobile services for the ownership restriction.

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 defendant appealed a Small Claims Court judgment ordering it to pay $10,000 for damage to the plaintiff's recycling bins during snow removal operations.

The Divisional Court found that the trial judge made a palpable and overriding error by adopting the plaintiff's deductions rather than weighing the evidence and drawing his own reasonable inferences.

The appeal was allowed, the judgment was set aside, and a new trial was ordered.

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.

The appellants appealed a Small Claims Court judgment that dismissed their claim for damages and awarded the respondent $3,500 for intentional infliction of mental suffering.

The trial judge found that the appellant doctor engaged in sexually inappropriate and unprofessional conduct that caused the respondent anxiety and mental suffering.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of credibility and factual findings.

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 appellants appealed a summary judgment decision finding that the limitation period for the respondent's tort and oppression claims had not expired.

The appellants argued the limitation period began when the respondent knew the corporate defendant vacated the premises and consulted a lawyer.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the respondent did not have, and could not have reasonably discovered, information about the transfer of the corporate defendant's business and contracts to another corporation at that time.

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.