Marc Kestenberg

The court considered whether Baketree Inc. validly exercised its option to extend a commercial lease with Nico Properties Inc., or whether alleged defaults precluded the extension.

The court found that Baketree met all preconditions for extension, including payment of rent, compliance with lease terms, and maintenance of financial strength.

Even if there had been a default, the court would have granted relief from forfeiture.

However, Baketree lost its right to negotiate a purchase of the property under Schedule E due to prior defaults, and the court declined to grant relief from forfeiture for that right.

The moving party, Fariborz Tavana, on behalf of Master Tech Inc., sought to set aside an order dismissing his motion for an extension of time to file a notice of appeal.

The underlying appeal related to a costs order and the dismissal of an action.

The Court of Appeal identified several impediments, including the dissolution of Master Tech Inc., Mr. Tavana's lack of authority to act for the corporation, and the absence of any reviewable error in the prior decision.

The court found no arguable merit to the proposed appeal and a consistent pattern of delay.

The motion was dismissed with costs.

This appeal concerned the reinstatement of a mortgage charge (FO Charge) on a property title after it was mistakenly deleted by the Land Registry Office.

The applicant, FirstOntario Credit Union, appealed the Director of Titles' decision to delete the reinstated charge, arguing for rectification of the register or that the respondents had constructive notice of its interest.

The court dismissed the appeal, affirming the doctrine of indefeasibility of title for bona fide purchasers and mortgagees for value without actual notice.

It held that constructive notice is insufficient to defeat registered interests and that the Land Titles Assurance Fund is the appropriate remedy for losses due to registry errors.

The third parties, a lawyer and his professional corporation, moved to strike a third party claim brought against them by the defendants.

The defendants alleged negligence and other torts regarding the lawyer's preparation of a mortgage and subsequent enforcement proceedings on behalf of the plaintiff.

The court struck the claim, finding that opposing counsel owes no duty of care to the defendants, the claims regarding the mortgage were statute-barred, and the claims regarding enforcement proceedings were barred by absolute privilege.

Leave to amend was granted only for claims relating to a specific property transfer.

This decision provides supplementary reasons following a motion for a certificate of pending litigation.

The court addresses an improper communication from the unsuccessful parties' counsel questioning the evidentiary basis of the prior decision, specifically regarding a mortgage on the subject property.

The court clarifies that direct communication with the court without prior consent or direction is a breach of Rule 1.09 of the Rules of Civil Procedure.

The court also confirms that the title abstract showing the mortgage was part of the evidentiary record and that its presence or absence does not alter the original assessment of equities or the decision.

The plaintiff, Katherine Lee, brought a motion seeking leave to issue a certificate of pending litigation (CPL) against a property, alleging a one-half beneficial interest that was fraudulently conveyed by her father, Yunchang Li, to himself and her elder sister, Yahong Li.

The court found that the plaintiff established a prima facie case of fraud, citing several "badges of fraud" including the transfer occurring without notice, nominal consideration, and a non-arm's length relationship.

The court also determined there was a high probability of success for the plaintiff's claim and that the equities favored granting the CPL, as damages would not be an adequate remedy.

The motion for CPL was granted, and costs were awarded to the plaintiff on a partial indemnity basis, with a reduction due to the plaintiff's procedural error in under-booking the initial motion hearing.

The defendant, Krandel, brought a motion seeking leave to issue a counterclaim *nunc pro tunc* against Dianne Herzog in her personal capacity, add her as a defendant to the counterclaim, and extend the time for service.

The original counterclaim, filed in a professional negligence action, was delivered but not properly issued or titled against Dianne Herzog personally, who was not an original party.

The limitation period for the counterclaim had expired.

The court granted the motion, finding that Dianne Herzog had actual knowledge of the counterclaim before the limitation period expired, thereby rebutting the presumption of prejudice.

The court emphasized that denying the motion would be a greater injustice and that the case was still in its early stages, making the regularization of the pleading consistent with the overarching principle of civil litigation to determine proceedings on their merits.

The applicant, Universal Engineered Restoration, brought an application under Rule 14 for the distribution of $305,987.52 held in the trust account of the respondent lawyer, Harpreet Khukh, due to competing claims from other respondents, Ayman Mohammed Alkhatib and 8995079 Canada Inc. Mr. Khukh had paid the funds into court.

On consent of the parties, the application was converted into an action, with Universal to deliver a Statement of Claim and the other respondents to deliver a Statement of Defence and Counterclaim.

The application was dismissed without costs against Mr. Khukh, and costs of the proceeding to date were ordered to be in the cause of the converted action.

The plaintiffs brought a motion for default judgment against their former investment advisor and his corporate entities for civil fraud, breach of fiduciary duty, and conversion.

The defendants had convinced the unsophisticated plaintiffs to withdraw $350,000 from their RRSPs for a fictitious start-up investment, but instead misappropriated the funds for their own benefit, including purchasing a heavily leveraged property.

The court granted default judgment, awarding compensatory damages that accounted for the lost funds and tax consequences, $75,000 in punitive damages for the defendants' highly reprehensible conduct, and $92,000 in full indemnity costs due to the defendants' egregious abuse of the litigation process.

The plaintiffs brought a motion to strike the defendants' statement of defence due to the defendants' failure to pay outstanding costs orders totaling $52,500.

The defendants sought an adjournment, which was denied as they failed to provide evidence or a reasonable explanation for their delay.

The court found that the defendants had engaged in a pattern of behaviour designed to abuse the court's process, delay the proceedings, and cause the plaintiffs to incur wasted costs.

Applying the principles from Atlas Copco, the court struck the statement of defence and awarded the plaintiffs substantial indemnity costs of $18,500.

The plaintiffs brought a motion seeking to compel answers to discovery undertakings, leave to move on refusals after setting the action down for trial, leave to amend their statement of claim, and leave to serve a late jury notice.

The court denied leave to deliver a late jury notice, finding the delay of over two years unconscionable and that the defendants would be severely prejudiced, having conducted discoveries based on a judge-alone trial strategy.

The court also denied leave to bring motions after setting down for trial, finding no substantial or unexpected change in circumstances, but extended the set-down deadline.

Leave to amend the statement of claim was granted on the condition that it would not reopen pleadings for a jury notice.

The plaintiffs, minority shareholders of two companies that owned marinas, sought leave to bring a derivative action against the companies' solicitor regarding the distribution of proceeds from the sale of the marinas.

The plaintiffs alleged the solicitor improperly distributed the funds to the majority shareholder or companies controlled by him.

The court dismissed the motion, finding that while the plaintiffs met the first three parts of the test for a derivative action, they failed to demonstrate that the proposed action was in the best interests of the companies, as there was no evidence the companies suffered a loss and the plaintiffs' true claim was personal.

The defendant brought a motion to enforce a settlement agreement reached between counsel.

The plaintiff opposed the motion, arguing its former lawyer settled the action contrary to instructions and breached his duty of loyalty.

The court reviewed the communications between the plaintiff's principal and its former lawyer, finding the lawyer acted competently, loyally, and upon express instructions to settle.

The court found a binding settlement agreement existed and saw no reason to exercise its discretion to refuse enforcement.

The motion was granted, the action was dismissed, and costs of $10,000 were awarded to the defendant.

The moving party brought a motion for leave to appeal the order of Ferguson J. dated February 2, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

The plaintiffs brought a motion to disqualify the law firm Adair Goldblatt Bieber LLP (AGB) from representing the defendants in a legal malpractice action.

The plaintiffs argued that their counsel had previously consulted with a partner at AGB about potentially acting as an expert witness for the plaintiffs, during which confidential information was allegedly shared.

The court dismissed the motion, finding that the discussion was brief, general in nature, and did not involve the disclosure of confidential information attributable to a solicitor-client relationship that could prejudice the plaintiffs.

This is an appeal from a Master's order removing Paul Starkman and Starkman Barristers LLP as lawyers of record for the plaintiff/appellant, 8657181 Canada Inc., on the basis that Starkman was likely to be a material witness in the litigation.

The underlying action was a solicitor's negligence claim brought by the plaintiff against its former lawyers.

The court dismissed the appeal, affirming the Master's decision that Starkman's dual role as advocate and likely witness on issues of mitigation and damages created an irreconcilable conflict, impairing the administration of justice.

The plaintiffs, including Grand Chief Wabiska Mukwa and the Manary family, launched a wide-ranging action against various defendants, including provincial and federal governments, their agents, and Farm Credit Canada (FCC), raising land claims, Indigenous rights, and challenging mortgages.

The defendants brought multiple motions: two Rule 2.1 requests to dismiss the claims as frivolous/vexatious, a Rule 21 motion to strike claims against counsel for disclosing no reasonable cause of action, and FCC's motion for summary judgment on its counterclaim for mortgage enforcement.

The plaintiffs also brought a recusal motion against the presiding judge.

The court dismissed the plaintiffs' recusal motion, found the plaintiffs' claims to be "Organized Pseudolegal Commercial Arguments" (OPCA) and non-justiciable, dismissed all plaintiffs' claims against all defendants under Rule 2.1 and Rule 21, and granted FCC's summary judgment motion for payment on the mortgages and possession of the properties.

Costs were awarded against the plaintiffs.

This motion concerned the immediate disclosure of a settlement agreement between a plaintiff and one of several co-defendants in a deceit action.

The plaintiff, Roger Poirier, settled with defendant Jerry Friedberg, but failed to immediately disclose the settlement terms to the remaining co-defendants, Jeremy Logan, Hilary Goldstein, and Buchli Goldstein LLP.

The co-defendants brought a motion to dismiss Poirier's action as an abuse of process, arguing that the settlement fundamentally altered the litigation's adversarial orientation.

The court granted the motion, holding that the settlement, which included Friedberg providing an affidavit vetted by plaintiff's counsel, significantly changed the litigation landscape, and the delay in disclosure constituted an abuse of process, warranting dismissal of the action.

The plaintiff brought a motion under Rule 21.01(1)(a) for a declaration that it had standing as a third-party beneficiary to sue for breach of contract based on a restrictive covenant in an agreement of purchase and sale between the defendants and a non-party.

The defendants argued that contractual interpretation is a question of mixed fact and law, making it inappropriate for a Rule 21 motion where evidence is generally inadmissible.

The court agreed with the defendants, applying the Supreme Court's decision in Sattva, and dismissed the motion, finding that the interpretation of the agreement would require evidence and could not be determined as a pure question of law.

The appellant appealed an order requiring it to reimburse the respondents for legal fees incurred in collecting on promissory notes.

The appellant argued that the fees were related to a global settlement of disputes rather than collection, and that the application judge erred in awarding full indemnity costs.

The Court of Appeal dismissed the appeal, finding ample evidence that the enforcement efforts were inextricably linked to the settlement discussions, and that the application judge properly reduced the claimed fees by a third to arrive at a reasonable amount as required by the general security agreement.