Mark A. Klaiman

The Applicants brought a motion seeking an accounting of loans and a determination regarding the collateral nature of a $650,000 mortgage (the "Castlemore Mortgage") against 4415 Castlemore Road, Brampton, in relation to a $700,000 mortgage (the "Wilson Mortgage") against 1031 Wilson Avenue, Toronto.

While the accounting issue was resolved, the central dispute concerned whether the Castlemore Mortgage was collateral to the Wilson Mortgage, and if an amendment deleting the collateral provision was valid.

The court found that the Castlemore Mortgage was not collateral security for the Wilson Mortgage due to a valid amendment registered in April 2015, and that the Respondent Graff was entitled to rely on this amendment, despite the Applicants' claims of lack of authority by the bare trustee.

The Applicants' motion was dismissed.

The moving party, an appliance supplier, sought leave to register a certificate of pending litigation against a condominium unit owned by the responding parties.

The moving party alleged it was owed $155,000 for appliances supplied to a previous project and had entered into an agreement of purchase and sale for the unit as security for the debt.

The responding parties argued the agreement prohibited the registration of a certificate of pending litigation.

The court granted the motion, finding that the potential harm to the moving party outweighed the harm to the responding parties, the responding parties' corporations were likely to become shell companies, and the responding parties were estopped from relying on the non-registration clause due to their own default.

The applicant storage company sought a declaration that an initial certificate issued to the respondent insurer under s. 24 of the Repair and Storage Liens Act was null and void.

The applicant argued the insurer lacked standing because it had not yet indemnified the insured for the total loss of her vehicle.

The court dismissed the application, finding that the insurer had assumed liability for the storage fees under the insurance contract and was therefore subrogated to the insured's rights under s. 278(1) of the Insurance Act, giving it standing as a person lawfully entitled to the automobile.

The appellants appealed the dismissal of their action seeking to hold the respondent personally liable for half of their jointly owned corporation's debt.

The appellants argued that an agreement to share profits equally implied an agreement to share debts equally, and that the respondent had admitted personal liability.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the parties understood they were limiting their personal liability by operating through a corporation and had not agreed to assume personal liability for corporate debts.

This case concerned the validity of a will dated May 21, 2012, which significantly altered the deceased's estate plan from a prior 1999 will.

The applicant, named executor in the new will, sought to propound it.

The respondent, sole beneficiary of the 1999 will, opposed, alleging suspicious circumstances, lack of testamentary capacity, and lack of knowledge and approval.

The court found numerous suspicious circumstances, including the deceased's questionable mental capacity at the time, the absence of a capacity assessment, and the radical change in beneficiaries without clear rationale.

The applicant failed to discharge the burden of proving testamentary capacity and knowledge and approval.

Consequently, the May 21, 2012 will was not admitted to probate, and the application was dismissed.

The applicants sought an order extending the time to complete minutes of settlement and to restrain the defendants from exercising rights to obtain vesting orders.

The defendants brought a cross-motion for a vesting order.

The applicants argued that the defendants' failure to remove outdated MLS listings, which were improperly filed during previous foreclosure proceedings, hindered their ability to sell properties and satisfy the settlement.

The court, exercising its equitable jurisdiction, found that the defendants' improperly maintained listings impeded the applicants' performance.

The court granted the applicants' motion, ordering the removal of the listings and a four-month extension for compliance, with interest continuing to accrue.

The defendants' motion for a vesting order was dismissed.

The plaintiff brought a motion for summary judgment seeking the return of an $85,000 deposit from a failed asset purchase transaction.

The agreement stipulated that the deposit, held in trust, would be returned if the defendant failed to satisfy certain conditions, including providing an HST Clearance Certificate and a WSIB Purchase Certificate, by a specified deadline.

The defendant failed to meet most conditions by the deadline, arguing the breaches were minor and technical.

The court found no genuine issue requiring a trial, ruling that the defendant's breaches were central to the agreement, not merely technical, and that strict compliance was a fundamental term.

The plaintiff was granted summary judgment for the return of the $85,000.

The defendant's counterclaim for damages related to the plaintiff's use of assets was reserved for a separate two-day hearing.

The plaintiff franchisor sought an interlocutory injunction against a former franchisee, Gregory Boundris, and related entities (D.B.V. Co. Ltd., Sub Works Inc., and Haralabbi Boundris), alleging breach of a restrictive covenant in a franchise agreement.

The former franchisee had opened a competing sandwich shop, "Sub Works," at the same location shortly after his Mr. Sub franchise agreement terminated.

The court applied the "strong prima facie case" standard for the injunction, finding it would effectively be a final determination.

The court granted the injunction against Gregory Boundris due to his admitted involvement in the competing business, but dismissed the motion against the other defendants, finding insufficient evidence to establish a strong prima facie case or irreparable harm against them.

This is a ruling on a preliminary motion regarding the proper categorization of party liability offences under the Provincial Offences Act.

The defendants were charged with offences contrary to the Conservation Authorities Act, both as principal offenders and as parties to the offences.

The central issue was whether party liability offences based on aiding or abetting the commission of a regulatory strict liability offence should themselves be classified as strict liability offences or as mens rea offences.

The court examined the Supreme Court of Canada's decision in La Souveraine and concluded that party liability offences based on aiding (under paragraph 77(1)(b) of the POA) should be classified as strict liability offences, while those based on abetting (under paragraph 77(1)(c)) remain mens rea offences.

In this family law costs ruling following a disclosure motion involving third parties, the successful moving party sought full recovery costs based on an offer to settle and alleged bad faith by the opposing parties.

The court held that the responding parties' conduct was unreasonable, but did not meet the high threshold for bad faith.

Applying Rules 24 and 18 of the Family Law Rules and the fair-and-reasonable costs approach, the court reduced the claimed amount because the materials and time spent were excessive and the matter was straightforward.

Costs were apportioned separately between the husband and the third party, with no joint and several liability.

Following a trial where the applicant was successful on the remaining issues, the applicant sought costs of $75,000 on a substantial indemnity basis.

The court declined to award substantial indemnity costs because the value of the applicant's shares, and thus whether his offer to settle was beaten, could not be determined until an auction was held.

The court awarded partial indemnity costs, discounted to account for claims the applicant withdrew just before trial.

The respondent was ordered to pay $30,000 all-inclusive.

In the context of an ongoing family law arbitration, the respondent wife brought a motion for third-party document production against the applicant husband's business partner and related corporations.

The documents were sought to assess the soft costs of a real estate development project for equalization purposes.

The third party opposed the motion, alleging the wife breached the implied undertaking rule by tipping off the CRA, which led to an audit.

The court found no satisfactory evidence to justify the third party's sudden withdrawal of cooperation and granted the motion for document production pursuant to Rule 19(11) of the Family Law Rules.

A voir dire was held to determine the admissibility of lay opinion evidence from a watershed enforcement officer regarding the freshness of topsoil observed at a property.

The officer opined that topsoil was "very fresh material" based on observations of construction equipment, lack of vegetation, and crisp bulldozer tracks.

The court applied the four-element test from Regina v. Graat to determine whether the lay opinion evidence was admissible.

The court found that all four elements were satisfied: the officer was in a better position than the trier of fact to form the conclusion; the conclusion was one that persons of ordinary experience could make when combined with the officer's experiential capacity; the officer had the necessary experiential capacity despite not being an expert; and the opinion was a compendious mode of stating complex facts.

The opinion was admitted into evidence.

The appellant auto body repair business appealed a Small Claims Court decision regarding storage fees for a damaged vehicle.

The appellant claimed the vehicle owner agreed to a storage rate of $100 per day for 64 days, while the respondent insurer argued the rate was excessive and paid funds into court under the Repair and Storage Liens Act to release the vehicle.

The Divisional Court upheld the trial judge's finding that there was no binding agreement for the total storage amount and that $60 per day for 40 days was a reasonable rate.

The court also confirmed the insurer had standing to bring the application despite ultimately denying coverage.

The applicants sought declarations that an agreement of purchase and sale entered by the mortgagee during a power of sale process was a nullity and requested authorization to discharge several mortgages by payment into court.

The applicants had requested a mortgage discharge statement under s. 22(2) of the Mortgages Act but the mortgagee failed to provide one within the statutory time.

The court held the request constituted a valid demand for a statement and that the mortgagee lacked a reasonable excuse for non-compliance.

As a result, the mortgagee’s enforcement rights were suspended under s. 22(3), rendering the subsequent agreement of purchase and sale ineffective.

The court further ordered that the mortgages be discharged upon payment of the claimed amount into court pursuant to s. 12 of the Mortgages Act.

The defendant brought a motion on the eve of trial seeking leave to amend his statement of defence to plead misrepresentation and promissory estoppel based on an email allegedly sent by the plaintiff’s representative before execution of a personal guarantee.

The plaintiff opposed the amendment, arguing the proposed defence was untenable because the guarantee was a full recourse guarantee containing an entire agreement clause and executed with independent legal advice.

The court acknowledged concerns about the merits of the proposed defence and the timing of the motion, but emphasized that amendments should generally be permitted unless non-compensable prejudice results.

The court found the email raised a sufficiently arguable issue regarding the defendant’s understanding of the guarantee.

Leave to amend was therefore granted so that the issue could be adjudicated at trial.

Purchasers of a hotel condominium unit sought return of a $228,250 deposit after the transaction failed to close by the contractual deadline.

The developer argued the purchasers breached the agreement by failing to close and forfeited the deposit.

The court found the developer’s solicitor had effectively extended the closing date through assurances that the parties need not close while concerns about increased common expenses were addressed.

No revised disclosure statement or statutory notice under the Condominium Act, 1998 was delivered despite a significant increase in common expenses.

Because the transaction failed to close through no fault of the purchasers, the agreement was terminated and the purchasers were entitled to the return of their deposits with prejudgment interest.

Following a trial where the plaintiffs were successful, the defendant Negravi made an assignment in bankruptcy before costs submissions were completed.

The court held that the proceedings to fix costs were not stayed by s. 69(1) of the Bankruptcy and Insolvency Act, applying the rule from British Gold Fields that costs associated with a pre-bankruptcy judgment for a liquidated sum are added to the sum recovered.

The court awarded the plaintiffs $150,000 in costs against Negravi on a substantial indemnity basis due to his unreasonable conduct and unfounded counterclaim.

Nominal costs were awarded against another defendant, and the plaintiffs were ordered to pay costs to a successful third defendant.

The plaintiffs were successful at trial and sought costs.

Following the release of the trial judgment but before costs submissions were complete, the main defendant made an assignment in bankruptcy, triggering a stay of proceedings under s. 69(1) of the Bankruptcy and Insolvency Act.

The court held that it had jurisdiction to fix costs because the costs associated with a pre-bankruptcy judgment for a liquidated sum are regarded as an addition to the sum recovered.

The court awarded the plaintiffs $150,000 in costs on a substantial indemnity basis against the bankrupt defendant due to an unaccepted offer to settle and unfounded allegations of fraud.

The plaintiffs were also ordered to pay $5,661 in costs to a successful co-defendant, and were awarded $1,000 against another co-defendant for defending an exaggerated counterclaim.

Following the dismissal of summary judgment motions in a dispute over the purchase of hotel condominium units in the Trump International Hotel in Toronto, the successful defendants sought costs on a partial indemnity basis.

The plaintiffs argued that no costs should be awarded due to alleged misconduct and their success on certain factual issues, or alternatively that the amount sought was excessive.

The court held that the litigation was not a case of divided success and that the plaintiffs ultimately failed on critical factual and legal elements of their claims.

Applying the principle that costs should be fair, reasonable, and within the expectations of the parties, the court awarded the successful defendants a reduced amount.

Costs of $58,000 inclusive were ordered.