Mark A. Klaiman

The plaintiff landlord brought a motion for summary judgment against the defendant tenants for breach of a commercial lease, seeking rent arrears and costs for replacing a kitchen exhaust system.

The defendants argued the amounts claimed were excessive, citing betterment regarding the exhaust system and a failure to mitigate damages when re-leasing the premises.

The court granted summary judgment but reduced the damages awarded, finding the landlord was placed in a better position by the new exhaust system and had delayed in securing a new tenant.

Damages were awarded in the amount of $200,040.37, plus pre-judgment interest and costs.

Following a judgment awarding the applicant $62,246.68 for a partnership claim, the parties could not agree on the pre-judgment interest rate.

The applicant sought the default rate of 4.8% under s. 127 of the Courts of Justice Act.

The respondents argued for a reduced rate of 1.95% under s. 130, citing lower market rates over the lengthy period, the modest recovery compared to the amount claimed, and the applicant's delay.

The court exercised its discretion under s. 130 and fixed the pre-judgment interest rate at 2.2%.

Two purchasers of hotel condominium units in the Trump International Hotel in Toronto brought test‑case summary judgment motions seeking rescission and damages based on alleged misrepresentations and an alleged breach of an Ontario Securities Commission prospectus‑exemption ruling.

The purchasers relied primarily on an “Estimated Return on Investment” document that allegedly overstated revenues and understated expenses.

The court found the document contained multiple misrepresentations but held the plaintiffs’ claims nevertheless failed because their reliance on the estimates was not objectively reasonable in light of extensive contractual disclaimers, disclosure documents, and risk warnings.

The court further held the defendants did not breach the OSC exemption ruling and that statutory securities and condominium misrepresentation provisions were not engaged.

One plaintiff’s claims were also statute‑barred under the Limitations Act, 2002.

The plaintiffs sued a former 50/50 shareholder and his father-in-law after a closely held corporation failed and remained indebted to a lender connected to the other shareholder's family.

The court held that the parties' oral arrangement to share profits and liabilities did not amount to a personal guarantee or an agreement to pierce the corporate veil, and did not displace the ordinary principle of limited shareholder liability under the Ontario Business Corporations Act.

The court further found that the alleged lender never entered into a binding loan agreement with the corporation and made no actionable pre-contractual representation.

The claim and counterclaim were both dismissed.

This was a costs endorsement following an application concerning the dissolution of a partnership and the accounting between former partners.

The applicant had succeeded in obtaining recovery for a share of post-dissolution profits under s. 42 of the Partnerships Act and for the fair market value of his one-third interest, but recovered substantially less than originally claimed.

Applying s. 131 of the Courts of Justice Act and Rules 57.01, 49.10, and 49.13 of the Rules of Civil Procedure, the court held that costs should follow the event but reduced the requested amount as disproportionate to the proceeding.

The court found the matter was straightforward and of moderate complexity, identified duplication and excessive hours, allowed the expert-report disbursement, and fixed all-inclusive partial indemnity costs at $48,388.71.

The appellants appealed a decision dismissing their application regarding alleged voting irregularities in a Hindu temple's By-Law vote.

The Court of Appeal upheld the application judge's finding that the appellants failed to establish an irregularity, meaning the burden of proof never shifted to the respondents.

However, the Court allowed the appeal on costs, finding the application judge misapprehended evidence when awarding substantial indemnity costs.

The costs award was reduced to partial indemnity.

In this costs endorsement arising from an estate dispute, the court determined the appropriate scale and amount of costs payable to the successful plaintiffs.

The court found there were no pertinent offers to settle and held that adverse credibility findings against the defendant did not amount to litigation misconduct warranting a costs sanction.

Costs were fixed on a partial indemnity scale in the agreed amount of $35,000, payable within thirty days.

The plaintiffs challenged a late-life will and inter vivos transfers made by a deceased testator suffering from Parkinson’s Disease and Lewy Body Dementia, alleging lack of testamentary capacity and undue influence by the surviving spouse.

After reviewing extensive medical records, expert psychiatric evidence, solicitor evidence, and family evidence, the court found the testator lacked testamentary capacity when the 2007 will was executed and that the will and capital transfers were products of undue influence.

The court held that suspicious circumstances were significant, including marked departures from earlier estate plans, failure to obtain a capacity assessment, and inadequate evidence supporting the asserted financial rationale for disinheriting the sons in substance.

Judgment was granted for the plaintiffs, the third will and impugned transfers were set aside, and the defendant was ordered to return transferred assets to the estate.

The applicant and respondents operated a chiropractic and physiotherapy clinic as a partnership.

Following the dissolution of the partnership, the respondents continued to operate out of the same premises using partnership assets.

The applicant sought a share of the post-dissolution profits under s. 42 of the Partnerships Act and a determination of the fair market value of his one-third share of the partnership.

The court awarded the applicant a portion of the post-dissolution profits based on the percentage attributable to the use of partnership assets, and determined the fair market value of his share using a capitalized cash flow approach with a minority discount, resulting in a total award of $62,246.68.

Following the dismissal of an application seeking to set aside a by-law passed at a general meeting of a temple organization, the court addressed costs.

The unsuccessful applicants argued that no costs should be awarded because they were public interest litigants and alleged governance concerns within the organization.

The court rejected the characterization of the applicants as public interest litigants, finding the litigation was primarily driven by efforts to regain control of the organization rather than a broader public interest.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court determined the respondents were entitled to substantial indemnity costs.

Costs were fixed at $30,000 payable jointly and severally by the applicants.

Applicants sought to set aside a temple by-law passed at a September 2007 general meeting, arguing that forged membership applications and improper proxies invalidated the meeting and the resulting constitution of the organization.

They further alleged that the current board improperly restricted membership.

The court held that the applicants failed to prove on a balance of probabilities that forged memberships affected the June 2007 election or that proxies from that meeting were improperly used to pass the September 2007 by-law.

The evidence also did not establish that the board had improperly restricted membership.

The court upheld the validity of the by-law and dismissed the application.

Following a motion to strike portions of a statement of claim, the court determined the appropriate costs payable to individually named defendants whose claims had been struck as an abuse of process.

The plaintiff had asserted a $10 million claim against individual employees and directors of corporate defendants without adequately pleading separate acts or interests beyond their corporate roles.

The individual defendants sought substantial indemnity costs, arguing the claims constituted tactical harassment.

The court found the claims against the individuals lacked proper particulars but concluded the circumstances did not justify elevated costs.

Partial indemnity costs were instead fixed at reduced amounts reflecting duplication of work with corporate defendants’ counsel.

The defendants moved under Rules 21 and 25 of the Rules of Civil Procedure to strike the plaintiff’s statement of claim alleging civil conspiracy, unlawful interference with economic interests, trespass, and breach of confidence arising from alleged GPS tracking of the plaintiff’s service vehicles to obtain customer information.

The court held that the pleadings for civil conspiracy lacked the required material facts and particulars but granted leave to amend.

The claim for intentional interference with economic interests was struck without leave to amend because the pleadings failed to allege unlawful means directed at a third party as required by the Supreme Court’s formulation of the tort.

Allegations against individual corporate officers were struck as an abuse of process for failing to plead independent tortious conduct.

Claims for trespass to chattels and breach of confidence were allowed to proceed, while the trespass to land claim was struck with leave to amend.

During a conference call, the court addressed the scheduling of outstanding motions in a civil proceeding involving a corporation operating a religious organization and multiple individual defendants.

On consent of the parties, the court established a timetable governing the service and filing of motion materials, responding materials, and reply materials.

The schedule also provided deadlines for any motions brought by a self-represented party and fixed a hearing date for all motions.

The decision functioned as a case management endorsement establishing procedural timelines.

The appellants appealed a judgment granting the developer's application for declarations that the appellants were bound by agreements of purchase and sale for two hotel investment condominium units, and dismissing the appellants' application for a refund of deposits.

The appellants argued that changes to the building, including a reduction from 70 to 60 stories and changes to PATH access, constituted material changes under the Condominium Act, entitling them to rescission.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the May 2012 disclosure statement was a revised statement under s. 74(3) of the Act and that the changes were not material changes under the objective standard in s. 74(2), as they did not reasonably affect the value of the units for investment purposes.

The applicants brought a motion in an oppression proceeding under the Ontario Business Corporations Act seeking interim costs and related relief.

The court reviewed the legal test under OBCA s. 249(4), requiring a complainant to demonstrate a case of sufficient merit and financial circumstances that would preclude pursuit of the claim without funding.

The court found that the individual complainant established an arguable oppression claim involving alleged expulsion from corporate management, cessation of compensation, and disputes under a shareholders’ agreement.

However, the trust applicant failed to disclose relevant financial information.

The court concluded that the individual complainant met the financial hardship requirement but reduced the interim costs award to reflect the trust’s failure to disclose its financial circumstances.

The appellant appealed a trial judgment awarding her $47,500 in damages and costs against her former husband for spousal abuse.

She sought a new trial or an increased award of $276,000, arguing the trial judge erred in assessing damages, rejecting expert psychiatric evidence, and denying her claims for lost income.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of damages or his conclusion that the appellant's inability to work was unrelated to the abuse.

Following a successful summary judgment motion enforcing a personal guarantee, the plaintiff sought costs of approximately $25,000, including legal fees, disbursements, and HST.

The defendant conceded entitlement to disbursements but argued that total costs should be limited to $15,000 inclusive.

Applying the principles of proportionality and reasonableness, the court considered the relative simplicity of the matter and what costs the losing party could reasonably have anticipated.

The court fixed the plaintiff’s costs at the lower end of the anticipated range.

The applicant sought a declaration that the Director under the Consumer Protection Act improperly kept information about its charge and conviction posted on the Government of Ontario website beyond the period permitted by Ontario Regulation 17/05.

The applicant argued the regulation allowed publication of either charges or convictions for a maximum period of 21–27 months, but not both sequentially.

The court held that the word “or” in the regulation is presumptively inclusive, permitting the Ministry to post information about charges and later convictions separately for their own permitted periods.

Interpreting the provision consistently with the consumer protection purpose of the legislation, the court found that both postings were authorized.

The application was dismissed.

Mortgagors brought an application to determine the amount owed to a mortgagee following default on a private mortgage loan secured against their home.

The mortgagee claimed approximately $95,000, including significant legal fees, administrative charges, and other penalties.

The court held that many of the additional charges were unsupported, unreasonable, or prohibited under the Interest Act, including excessive legal fees, lender administration penalties, and additional NSF charges.

Exercising its inherent jurisdiction to assess reasonable costs, the court substantially reduced the mortgagee’s claim and allowed only limited additional fees, interest, and admitted charges.

The mortgagors were found liable for a significantly smaller sum and were substantially successful at trial.