Mark A. Klaiman

The defendants brought a motion for an order requiring the corporate plaintiff to post security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The plaintiff conceded the defendants met their initial onus but argued it had sufficient assets in Ontario to pay costs.

The court found the plaintiff's evidence of recent profits insufficient to prove it had exigible assets, noting its history of deficits and lack of hard assets.

The court granted the motion and ordered the plaintiff to post $50,000 in security for costs.

The defendant brought a motion to vary an Amended Judgment to reflect a settlement agreement between the parties.

The parties consented to the amendment, which provided for a lump sum payment in exchange for relinquishing interests in certain properties.

The court granted the motion pursuant to Rule 59.06(2)(d) of the Rules of Civil Procedure, finding that the parties were seeking relief other than what was originally awarded.

The parties entered into an agreement of purchase and sale for residential development lands, which was later amended to increase the fixed purchase price.

The vendor sought to terminate the agreement, alleging duress, misrepresentation, and breaches regarding deposits, pre-sales, and water bills.

The vendor also moved to convert the applications into a trial or adjourn the hearing.

The court dismissed the vendor's motion and application, finding no material facts in dispute, no duress or misrepresentation, and that the purchaser had paid the deposits by crediting the cost of home renovations as orally agreed.

The court granted the purchaser's application, confirming the amended purchase price and that the purchaser was not in default.

The appellants appealed a trial judgment awarding the respondent damages for wrongful dismissal.

The trial judge found that the two appellant corporations operated as a single business and were common employers of the respondent.

The appellants argued there was insufficient evidence of common control, the action against one corporation was statute-barred, and the trial judge erred in awarding substantial indemnity costs under Rule 49 by failing to deduct hypothetical tax consequences from the damages award.

The Divisional Court dismissed the appeal, finding ample evidence supported the common employer finding, the addition of the second corporation was a valid correction of a misnomer, and Rule 49 comparisons must be based on the actual quantum of damages awarded rather than net tax consequences.

This appeal addressed whether an innocent purchaser for value obtains good title to property sold under a power of sale, despite the mortgagee's breach of section 22 of the Mortgages Act (failure to provide a default statement, suspending enforcement rights).

The lower court had set aside the transfer.

The Court of Appeal allowed the purchaser's appeal, holding that the "Safe Harbour Protections" under sections 35 and 36 of the Mortgages Act and section 99(1.1) of the Land Titles Act protect an innocent purchaser, providing good title upon registration.

The mortgagor's remedy for the mortgagee's non-compliance lies against the mortgagee, not the innocent third-party purchaser.

This appeal concerned the validity of an email notice of waiver of a development condition in an Agreement of Purchase and Sale.

The appellants argued that the notice had to be hand-delivered, while the respondent contended that email delivery was sufficient given the contract's terms and the parties' communication practices.

The Court of Appeal upheld the trial judge's decision, finding that the email notice was valid.

The court emphasized a holistic interpretation of the agreement, giving precedence to negotiated terms in Schedule A over standard form provisions, and considering the parties' established practice of email communication.

The appeal was dismissed.

The appellant, Pine Valley Enterprises Inc., appealed a trial decision that dismissed its action against Earthco Soil Mixtures Inc. for breach of contract.

Pine Valley had purchased topsoil from Earthco for a City of Toronto project, but the soil did not meet specifications, requiring costly removal and replacement.

The trial judge found that Earthco breached the implied condition under s. 14 of the Sale of Goods Act (SGA) that goods correspond to their description, but dismissed the action based on exclusionary clauses in the contract.

The Court of Appeal allowed the appeal, holding that the exclusionary clauses, which disclaimed responsibility only for the "quality" of the material, were not explicit, clear, and direct enough to exclude liability for a breach of the s. 14 implied condition, which relates to the "identity" of the goods, not merely their quality.

The court emphasized that the factual matrix cannot be used to expand the meaning of such clauses beyond their express wording.

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 applicant sought a declaration that a $2 million mortgage registered by the respondent in favour of a related company was void.

The mortgage was registered on the same day a certificate of pending litigation was lifted, while a trial decision regarding a breach of contract claim by the applicant against the respondent was under reserve.

The court found that the mortgage was registered with the intent to defeat or hinder the applicant's ability to collect on a potential judgment, and that the respondent was on the eve of insolvency at the time.

The application was granted and the mortgage was declared void under the Fraudulent Conveyances Act and the Assignments and Preferences Act.

The plaintiff brought a motion to strike the defendants' jury notice in a motor vehicle accident action, citing delays caused by the COVID-19 pandemic.

The defendants opposed, arguing the plaintiff required leave under Rule 48.04 as the action was already set down for trial, and that the action was not ready for trial due to outstanding undertakings.

The court granted leave, finding the pandemic constituted a substantial and unexpected change in circumstances.

The court conditionally struck the jury notice, ordering that if a jury trial cannot be accommodated during the January 2022 sittings in Brampton, the trial will proceed before a judge alone to avoid undue delay.

The plaintiffs sought leave to issue certificates of pending litigation against three investment properties and an order to preserve the proceeds of sale of a fourth property.

The properties were transferred pursuant to a complex butterfly transaction.

The court found that while there might be a triable issue, the equities did not favour granting the relief.

The plaintiff's evidence was misleading, damages would be an adequate remedy, and the issues were better suited for family law proceedings.

The motion was dismissed.

The moving party defendant sought summary judgment to dismiss the plaintiff's claims of fraudulent conveyance and conspiracy.

The plaintiff alleged her former husband fraudulently conveyed shares in a company holding real property to his brother (the moving party) to defeat her family law judgment.

The court dismissed the motion, finding genuine issues requiring a trial, particularly regarding the relationships among the defendants, credibility, and whether the ten-year limitation period under the Real Property Limitations Act applied to the fraudulent conveyance claim.

The appellants, homeowners Rinku Deswal and Tajinder Oberoi, appealed a summary judgment dismissing their action against ADT Security Services following a robbery.

They argued ADT was negligent for not advising them of a cellular backup option and that the limitation of liability clause in their Residential Alarm Services Agreement was unenforceable.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that ADT had no duty to advise on other services, especially given the appellants' sophistication and their failure to read the contract.

The court also upheld the enforceability of the limitation of liability clause, applying the Tercon framework and public policy considerations that alarm service providers are not insurers.

The plaintiff, a tow truck operator, sued for wrongful dismissal after being summarily terminated without notice following five and a half years of service.

The defendant employer alleged just cause, claiming the plaintiff stole gas and engaged in other misconduct.

The court found the employer failed to prove the allegations on a balance of probabilities and failed to provide the plaintiff an opportunity to respond before termination.

The court also determined the plaintiff was an employee, not an independent contractor, and awarded six months' pay in lieu of notice plus unpaid vacation pay, totaling $19,860.75.

The applicant mortgagor defaulted on a mortgage and the respondent mortgagees commenced power of sale proceedings.

The mortgagor requested a discharge statement under s. 22 of the Mortgages Act, which the mortgagees refused to provide, claiming the mortgagor was stalling.

The mortgagees then sold the property to a third party.

The court held that the mortgagees had no reasonable excuse to refuse the discharge statement, meaning their enforcement rights were suspended under s. 22(3).

Consequently, the sale to the third party was invalid.

The court rejected the argument that ss. 35 and 36 of the Mortgages Act or s. 99(1.1) of the Land Titles Act protected the third party purchaser's title from a breach of s. 22.

The applicant brought an application for a declaration that a charge registered on a property was void as a fraudulent conveyance.

At a case conference, the respondents argued the matter should proceed as a trial of an issue due to factual disputes and credibility issues.

The court directed that the matter proceed by way of application, noting that the presiding judge could still order a trial of an issue under Rule 38.10(1) of the Rules of Civil Procedure.

The plaintiff, WED Investments Limited, sought costs following a judgment in its favour against Showcase Woodycrest Inc., while the action against 2442459 Ontario Inc. was dismissed.

WED relied on Rule 49.10 for substantial indemnity costs due to a successful Offer to Settle.

The court found that while Rule 49.10 applied, its benefit should be limited to the success against Showcase, as the case involved two separate actions against different defendants.

The court awarded WED 60% of its claimed costs against Showcase, totaling $189,376.93, and ordered no costs between WED and 2442459 Ontario Inc.

The respondent, a not-for-profit corporation, brought a motion for an injunction requiring the applicants, former employees, to return allegedly misappropriated confidential documents and restraining their further use.

The respondent also sought a sealing order for the court file.

The applicants argued they were whistleblowers exposing corporate wrongdoing.

The court dismissed the motion for an injunction, finding that while there was a serious issue to be tried, the respondent failed to establish it would suffer irreparable harm.

The court also dismissed the request for a sealing order, concluding it was not necessary to prevent a serious risk to an important interest and that the public interest in open court proceedings outweighed the benefits of confidentiality.

The moving parties brought a motion for leave to appeal the order of Doi J. dated September 18, 2020.

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

The plaintiff developer entered into two Agreements of Purchase and Sale to acquire properties for residential redevelopment.

The vendor of the Brock Street property wrongly terminated the agreement after the plaintiff properly delivered a waiver of conditions by email.

The court awarded the plaintiff $3.2 million in damages based on the increase in the property's value.

The plaintiff's claim regarding the Hopkins Street property was dismissed because it failed to deliver a waiver by the extended deadline.

The defendants' counterclaims for damages arising from the registration of Certificates of Pending Litigation were dismissed, as the plaintiff had a reasonable claim to an interest in the land.