Mark A. Ross

The plaintiff lender brought a motion for summary judgment on a collateral mortgage registered on the defendants' home.

The defendants counterclaimed alleging undue influence and unconscionability.

The court dismissed the lender's motion, finding genuine issues for trial regarding the interplay between undue influence, unconscionability, and independent legal advice.

The court also dismissed the motion of the defendants' son's lawyer, finding genuine issues regarding a conversation with the defendant.

However, the court granted summary judgment in favour of a lawyer friend of the son who had minimal involvement, finding no basis for liability.

The court considered a dispute between neighbouring commercial property owners after repeated basement flooding at 1330 Gerrard Inc., attributed to a rain garden installed by Riverdale Immigrant Women Enterprises.

The court found that the rain garden, as constructed and maintained, was the proximate cause of the flooding and ordered its removal and replacement with a conventional drainpipe.

The court also addressed the application of the rule in Rylands v. Fletcher, finding strict liability appropriate due to the non-natural use of land.

The court declined to order further invasive remedies, adopting a "wait and see" approach regarding potential structural damage.

The appellant, Bishop Girgis, appealed a lower court decision that interpreted and rectified a will to distribute proceeds from a property sale to the estate of the deceased's brother, rather than to the residuary beneficiary (Bishop Girgis).

The Court of Appeal dismissed the appeal, upholding the rectification on the basis that it gave effect to the testator's plain intention, despite disagreeing with the application judge's specific analytical path.

Costs were awarded against the appellant.

This costs endorsement followed two applications concerning the interpretation and rectification of a will.

The court had previously dismissed the interpretation application brought by Bishop Moussa and granted the rectification application brought by Sarwat Mansour, supported by Samia Messieh.

The court applied the modern approach to costs in estate litigation, scrutinizing the conduct of the parties.

While acknowledging the initial drafting error in the will necessitated legal advice, the court found Bishop Moussa's continued pursuit of an "absurd" interpretation led to unnecessary litigation.

Consequently, Bishop Moussa was ordered to pay a significant portion of the costs incurred by Ms. Messieh and Mr. Mansour, with some allowances from the estate for initial advice related to the drafting error.

The plaintiff, a condominium resident, sought statutory and tort-based injunctive and declaratory relief against the defendant, an underground venue operating in his building.

The plaintiff alleged the venue was operating as an unlicensed nightclub, causing severe noise and vibrations constituting a nuisance.

The court found that the defendant was indeed operating as an "entertainment establishment/nightclub" without the proper license, based on its functional activities (e.g., providing dance facilities, minimal seating, ancillary food sales) despite being licensed as an "eating or drinking establishment." The court granted a declaration to this effect and issued both a statutory injunction requiring the defendant to cease operations in contravention of its licensing status, and an interim/interlocutory injunction based in tort, prohibiting the emission of sound audible beyond the lot limit between 10:00 p.m. and 9:00 a.m.

The applicant sought costs for three motions in a family law proceeding: a non-depletion/Mareva motion, a disclosure motion, and a motion to vary support that the respondent abandoned.

The respondent failed to provide comparative bills of costs or make reasonable offers to settle.

The court awarded the applicant $48,000 in costs.

A third-party lawyer who was the target of the disclosure motion was also awarded $10,000 in costs, payable by the respondent.

The Gendelman Defendants sought to vary a Mareva order for the third time, requesting authorization to sell a property (Ravel Property) and access proceeds for legal fees, increased living expenses, and repayment of third-party debts.

The Plaintiff opposed the variation.

The court applied the four-part Credit Valley test for varying Mareva injunctions, finding that the Gendelman Defendants failed to establish they had no other assets available, were not fully transparent about their finances and income, and did not adequately explain significant discrepancies in their net worth statements or the nature of the debts they sought to repay.

The court dismissed the motion, emphasizing the strong prima facie case of the Plaintiff regarding alleged misappropriation of funds.

This endorsement addresses several requests to vary existing Mareva, Norwich, Anton Piller, and Certificate of Pending Litigation (CPL) orders.

The Gendelman Defendants sought funds for living and legal expenses, continued funding for real estate projects, the lifting of a CPL on a property for sale, directions on seized evidence, and the return of their passports.

The court granted limited interim funds for living and legal expenses, adjourned the CPL issue for further discussion, directed the establishment of a protocol for seized evidence, and ordered the return of the Gendelmans' passports, emphasizing the high threshold for infringing liberty by retaining passports.

This decision addresses two related appeals.

In the main appeal (C70874), Physicians’ Dialysis Center Inc. (PDC), and Drs.

George Wu and Gordon Wong appealed a trial judgment that found them unjustly enriched at the expense of Drs.

Perkins and Boll, and liable for general and punitive damages due to abuse of trust and breach of fiduciary duty.

The appellants argued errors in the interpretation of a Memorandum of Understanding (MOU) concerning compensation for clinic space and services, and that the claims were statute-barred.

The Court of Appeal dismissed this appeal, upholding the trial judge's findings on unjust enrichment, contract interpretation (clarifying payments were for overhead, not extra billing), and the application of the limitations period.

In the second appeal (COA-22-CV-0392), Dr. Donald Kim appealed the denial of his share in interpleaded funds, and this appeal was granted.

This costs endorsement addresses the allocation of costs across six intertwined proceedings.

The court awarded Maria Konstan $425,000 in all-inclusive costs against Samuel Jacob Berkovits and Saeed Hosseini.

This award was based on Maria's successful abuse of process claim, despite her malicious prosecution claim being dismissed, and the finding of Berkovits's malicious conduct.

Conversely, no costs were awarded between Samuel Jacob Berkovits and Harold Gerstel, as both parties engaged in reprehensible conduct and attempted to mislead the court, which would bring the administration of justice into disrepute.

The plaintiff, Wayne Safety Inc., brought an urgent ex parte motion seeking Mareva, Anton Piller, and Norwich injunctions, along with certificates of pending litigation (CPLs) and an order to amend the Notice of Action, against its former bookkeeper, Diana Gendelman, her husband Natan Gendelman, and associated numbered companies.

The plaintiff alleged a significant and ongoing fraud, estimated at over $5.2 million, involving the diversion of company funds to accounts controlled by the defendants and the purchase of properties.

The court found a strong prima facie case of fraud and conspiracy, a risk of asset dissipation, and a need to preserve evidence.

All requested relief was granted.

This endorsement addresses three causes of action (conspiracy, abuse of process, and harassment) advanced by the Gerstel parties in their counterclaims, which were not explicitly determined in the court's prior Reasons for Decision.

The court dismissed all three claims.

The conspiracy claim failed due to a lack of common design between the alleged conspirators.

The abuse of process claim failed because the primary objective of the opposing parties' action was to redress civil wrongs, not for a collateral purpose.

The novel tort of harassment was not recognized, as the facts of the consolidated proceedings did not meet the high threshold for creating a new legal remedy.

The plaintiffs and the defendant Robert Langlois entered into a joint venture to operate a powder-coating business, ACS.

Mr. Langlois licensed his powder-coating know-how and expertise to ACS.

Before ACS generated any revenue, Mr. Langlois secretly formed a competing business, PCS, with the defendants Jeffrey Sugar and Gary Sugar.

Mr. Langlois diverted corporate opportunities, including a lucrative powder-coating contract, to PCS and later to VML.

The plaintiffs sued for breach of contract, breach of fiduciary duty, and knowing assistance.

The court found that Mr. Langlois breached the Licence Agreement and his fiduciary duties by misappropriating corporate opportunities.

The court also found that Jeffrey Sugar and Gary Sugar knowingly assisted in these breaches.

The court ordered disgorgement of profits and repayment of loans and expenses, holding the defendants jointly and severally liable.

This application concerned an oppression remedy under the Ontario Business Corporations Act, brought by a daughter (applicant) against her mother (respondent) and related corporations in a closely held family business.

The applicant alleged oppressive conduct by the respondent, specifically a debt conversion and share issue that diverted corporate revenues to the respondent and terminated the applicant's long-standing income stream.

The court applied the two-step test for oppression, finding that the applicant had a reasonable expectation of continued financial support and participation in the residual value of the corporation.

The court determined that the respondent's actions breached these reasonable expectations and constituted oppressive conduct.

Consequently, the debt conversion and share issue were set aside.

The court declined to remove the respondent as director but directed the parties to negotiate a fair resolution for ongoing payments based on their respective needs and available resources, with the option to return to court if an agreement could not be reached.

Following an 11-day trial where the plaintiffs were successful, the court determined the quantum and scale of costs.

The plaintiffs had made multiple offers to settle that were more favourable than the trial judgment.

Applying Rule 49.10(1) and Rule 57.01(1), the court awarded the plaintiffs costs on a substantial indemnity basis fixed at $724,850.49, noting the defendants' unreasonable positions during the litigation.

This appeal concerned the appropriate measure of damages for a vendor's breach of an agreement of purchase and sale for real property.

The appellant purchaser sought to recover the significant capital appreciation realized by the breaching vendor two and a half years after the breach, when the vendor resold the properties for $56 million more than the original contract price.

The Court of Appeal upheld the motion judge's decision, affirming the general principle that damages for breach of a real estate contract are assessed at the date of breach, unless the innocent party can demonstrate a later date is fair due to an inability to re-enter the market and mitigate.

The court found the appellant, a long-term investor, was not a speculator and failed to prove its loss or justify a departure from the date of breach.

The appeal on damages and costs was dismissed, as was the cross-appeal on costs thrown away.

The appellants restructured family trusts, incorporating "Child Corporations" and subscribing for shares without actual payment, leading to a significant tax reassessment by the Canada Revenue Agency (CRA) for taxable benefits.

They sought a declaration from the Superior Court that the shares were invalidly issued under the Ontario Business Corporations Act (OBCA) and an order for rectification of share registers, aiming to negate the tax assessment.

The Superior Court declined jurisdiction, deferring to the Tax Court of Canada, and also indicated it would not have granted the requested relief.

The Court of Appeal upheld the Superior Court's discretionary decision to decline jurisdiction, finding no reviewable error.

The Court emphasized that the primary dispute was between the appellants and the CRA, falling within the Tax Court's specialized expertise, and that the corporate parties did not require a binding order from the Superior Court to resolve internal corporate issues.

The appellant, Forest Meadows Developments Inc., appealed an order dismissing its application for a declaration that the respondent, Narges Shahrasebi, breached an Agreement for Purchase and Sale (APS).

The core issue was whether the respondent had represented that she would not be able to close on the extended closing date of October 29, 2019, which the appellant argued constituted anticipatory breach.

The Court of Appeal upheld the application judge's finding of fact that no such representation was made, and therefore, there was no anticipatory breach or reasonable reliance by the appellant.

The appeal was dismissed.

The appellant appealed a trial judgment that rejected her claim of a partnership for a residential property and found her not credible.

The trial judge had also awarded punitive damages against the appellant in favour of one respondent.

The Court of Appeal dismissed the appeal regarding the partnership, upholding the trial judge's factual findings and credibility assessments, which were entitled to deference.

However, the Court of Appeal set aside the punitive damages award, reiterating that such damages require an independent actionable wrong, which was absent in this case.

This appeal addresses whether a trustee in bankruptcy can initiate an equalization claim under the Family Law Act (FLA).

The Court of Appeal held that while an unexercised equalization entitlement constitutes "property" under the Bankruptcy and Insolvency Act (BIA) and vests in the trustee, the "personal as between the spouses" provision in s. 7(2) of the FLA prevents anyone other than a spouse from initiating such a claim.

The court found no operational conflict between the FLA and BIA, thus dismissing the trustee's appeal to initiate the claim.