Mark Harris Arnold

The plaintiffs brought an action against the Islamic Republic of Iran for damages arising from the torture and imprisonment of the plaintiff by Iranian officials after his return as a prisoner of war.

Iran was noted in default.

The court found that the mistreatment of the plaintiff constituted 'terrorist activity' under the Criminal Code, thereby lifting Iran's state immunity under the State Immunity Act and the Justice for Victims of Terrorism Act.

The court awarded the plaintiff $100 million in compensatory damages and $100 million in punitive damages, along with derivative damages to his wife and daughter under the Family Law Act.

This costs endorsement addresses the aftermath of an application brought by Mehrzad Zarei against the Association of Families of Flight PS752 Victims.

The court dismissed Zarei’s application and considered the appropriate costs order, ultimately awarding the Association $50,000 in substantial indemnity costs for the period after a Rule 49 offer to settle, $5,000 on a partial indemnity basis for the period before the offer, and $4,862.62 in disbursements.

The court balanced the Association’s entitlement to costs with Zarei’s financial and emotional circumstances, staying enforcement of the order until Zarei collects any money from the government of Iran.

The applicant, a family member of a Flight PS752 victim, brought an application for an oppression remedy against the Association of Families of Flight PS752 Victims, alleging the Association failed to provide financial support, engaged in partisan activities, and withheld corporate documents.

The court dismissed the application, finding that the Association's board acted within its reasonable business judgment in interpreting its mandate and managing its affairs.

The court also noted the applicant failed to utilize available democratic processes within the Association to address his concerns, and that the evidence did not establish a violation of any reasonable expectation or oppressive conduct.

The applicant, Mehrzad Zarei, sought leave to withdraw his abandonment of an application against the Association of Families of Flight PS752 Victims.

Zarei had initially withdrawn the application but sought to reinstate it after receiving a substantial costs demand from the Association.

The court considered whether an abandoned application requires leave to proceed, particularly when no limitation period has expired.

Exercising its discretion, the court granted leave for the application to proceed, citing the absence of an expired limitation period, the applicant's post-traumatic stress disorder, the public importance of the matter concerning a not-for-profit corporation's operations, and the disproportionate nature of the initial costs demand.

The court reserved the issue of costs related to the abandonment for the final hearing on the merits and imposed a strict timetable for the proceeding.

Following a successful appeal, the appellant sought costs for both the appeal and the motion below.

The Divisional Court awarded the agreed-upon costs of the appeal fixed at $20,000.

The court also reversed the lower court's costs order, awarding the appellant $15,000 for the motion below, with a reduction applied due to the appellant's late filing and failure to raise a key point at the initial hearing.

The appellant appealed a decision invalidating his construction lien for being commenced nine days after the 90-day limitation period.

The motion judge had held that the date of last supply stated in the Claim for Lien form was a binding admission requiring powerful evidence to overcome, despite uncontradicted evidence that the actual date of last supply was later.

The Divisional Court allowed the appeal, finding the motion judge erred in law by failing to consider s. 6(1) of the Construction Act, which provides that a claim for lien is not invalidated by a minor irregularity, such as an incorrect date, absent prejudice.

The court permitted the appellant to raise s. 6(1) for the first time on appeal and dismissed the respondent's motion to invalidate the lien.

The moving party sought an extension of time under s. 71(2) of the Construction Act to appeal a judgment that declared his construction lien expired and cancelled a $1.212 million lien bond.

The moving party missed the 15-day appeal deadline by 12 days due to his former counsel's incorrect advice regarding the appeal period.

The Divisional Court granted the extension, finding that the moving party had a bona fide intention to appeal, the delay was minimal and reasonably explained, the respondent suffered no real prejudice, and the proposed appeal regarding the validity of the lien claim had arguable merit.

The appellants, estates and family members of victims of the downing of Ukrainian Airlines flight PS752 by Iran, sought to enforce a default judgment against Iranian properties and bank accounts in Canada.

The motion judge dismissed the enforcement, finding the properties enjoyed diplomatic immunity.

The Court of Appeal upheld this decision, ruling that the Canadian Executive's determination, via a s. 11 certificate under the Foreign Missions and International Organizations Act, that the Iranian property retains diplomatic status is conclusive and not subject to judicial review based on the property's current "use" for diplomatic purposes, even after diplomatic relations were severed.

The court affirmed the Executive's exclusive prerogative in foreign relations and diplomatic immunity matters.

The moving parties brought a motion for leave to appeal an order of McSweeney J. dated May 31, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding parties.

This endorsement addresses a motion for default judgment brought by family members of victims of the Ukraine International Airlines Flight PS 752 crash, which was downed by the Iranian Islamic Revolutionary Guard Corps.

The plaintiffs sought compensation for wrongful death, including damages under the Family Law Act, pain and suffering for the estates, and punitive damages.

The defendants did not defend the action.

The court consolidated this action with a previous, identical proceeding (Zarei v. Iran) and adopted Justice Belobaba's findings on liability (that the downing was an intentional act of terrorism) and the viability and quantum of damages.

The court also addressed preliminary procedural issues, granting orders to seal the court file, anonymize the plaintiffs' names due to fear of retribution, and appoint litigation administrators for the deceased estates.

The court awarded specific amounts for loss of guidance, care, and companionship, pain and suffering for each deceased victim's estate, and further punitive damages, reasoning that the prior punitive award in Zarei only sanctioned the wrongs against those specific victims, and a new award was necessary to punish the defendants for the torts committed against the present plaintiffs.

The plaintiffs, victims of the downing of Ukraine Airlines flight PS752, sought to enforce a default judgment against the Islamic Republic of Iran by seizing diplomatic properties and bank accounts in Canada.

The Attorney General of Canada intervened, relying on a certificate issued by the Minister of Foreign Affairs, Trade and Development, which certified the assets as diplomatic property enjoying immunity.

The court dismissed the plaintiffs' motion, affirming that the executive branch's determination of diplomatic status, as evidenced by the Minister's certificate under the Foreign Missions and International Organizations Act, prevents execution of the judgment against such property, consistent with appellate precedent.

The plaintiffs brought a motion seeking to amend and extend a prior default judgment (Zarei Action) to include new plaintiffs (Smith Action) and to obtain a declaration for a writ of seizure and sale against the defendants' diplomatic property.

The court dismissed the request to amend/extend the default judgment, holding that Rule 59.06 of the Rules of Civil Procedure does not permit adding new parties or causes of action not originally pleaded.

The court also found the enforcement request premature, as the default judgment had not yet been formally transmitted to the foreign state (Iran) as required by the State Immunity Act, and the 60-day period for Iran to challenge the judgment had not expired.

However, the court granted a sealing order for the unredacted materials of the new plaintiffs due to a credible fear of reprisal.

The plaintiff, Jinzhong Miao, sued his lawyer, Dheeraj Bhatia, and his firm, Madamser Law, for negligence and breach of contract concerning a real estate transaction.

The plaintiff sought to extricate himself from an Agreement of Purchase and Sale for a residential property, alleging the lawyer provided negligent advice by assuring him he could exit the deal.

The court found that the lawyer did not provide such a guarantee and that the plaintiff's credibility was compromised by his admitted misrepresentations about his financial circumstances.

The court concluded that the lawyer's conduct did not fall below the required standard of care and was not causative of any loss to the plaintiff.

The plaintiff's claim was dismissed.

The plaintiffs, family members of victims killed when Ukraine International Airlines Flight PS 752 was shot down by Iranian missiles, brought a motion for default judgment seeking compensatory and punitive damages.

The court awarded $1 million in compensatory damages under the Family Law Act for loss of guidance, care, and companionship, and $6 million under the Trustee Act for the victims' pain and suffering prior to death.

The court declined to award solatium or aggravated damages, finding them unavailable under Ontario law.

Applying the principle of proportionality, the court awarded $100 million in punitive damages to punish, deter, and denounce the defendants' intentional terrorist act.

The respondent purchased a commercial condominium unit with an exclusive use designation for a dental clinic and leased it to the appellant dentist.

Near the end of the lease, the appellant secretly purchased an adjacent unit, moved his practice there, and purported to assign the exclusive use designation to his new unit in perpetuity.

The application judge held that the appellant could only assign the exclusive use right for the duration of his lease term.

The Court of Appeal dismissed the appeal, finding that the application judge correctly applied contractual interpretation principles and the nemo dat principle to conclude that the tenant could not permanently divest the owner of its exclusive use right.

The appellants, LMC 477R Corp. and Newstead Inc., appealed the dismissal of their oppression application under the Condominium Act, 1998, against Metropolitan Toronto Condominium Corporation No. 1046.

The application alleged oppressive conduct by the respondent in interfering with the appellant's parking facility operations and refusing good faith negotiations for a new parking agreement.

The Court of Appeal affirmed the application judge's decision, finding no error in the application of the oppression test or in the factual findings, and dismissed the appeal.

The plaintiffs brought a motion for default judgment on liability against the Islamic Republic of Iran and other Iranian defendants for the intentional shooting down of Ukraine International Airlines Flight PS 752.

The court found that the missile attacks were intentional and did not occur during an armed conflict, thereby constituting terrorist activity under the Criminal Code.

The court held that the defendants' state immunity was lifted under the State Immunity Act and the Justice for Victims of Terrorism Act, granting default judgment on liability and awarding full indemnity costs to the plaintiffs.

Following a successful appeal where the court suggested wording to amend section 22 of a condominium declaration regarding the duty to repair and maintain, the parties were unable to agree on the final wording.

The appellant accepted the court's proposed wording, while the respondents sought different wording and the removal of a paragraph from the earlier reasons.

The Court of Appeal rejected the respondents' submissions as an attempt to reargue the decided issues and ordered that the formal order reflect the court's originally proposed wording.

Two competing groups of plaintiffs sought carriage of a proposed class action against the Islamic Republic of Iran and Ukraine International Airlines arising from the downing of Flight PS752.

The Arsalani plaintiffs relied on the commercial activity exception to state immunity, while the Gorji plaintiffs relied on the terrorist activity exception.

The court awarded carriage to the Arsalani plaintiffs, finding their funding agreement, fee structure, counsel experience, and inclusion of the airline as a defendant from the outset made their action in the best interests of the class.

The Gorji and Zarei actions were stayed.

The appellant condominium corporation appealed a decision refusing to amend its declaration under s. 109(3) of the Condominium Act.

The dispute centered on who should bear the cost of replacing deteriorated chimney flues that exclusively serviced 22 residential units.

The Court of Appeal found that the application judge erred in concluding there was no inconsistency between sections 22 and 23 of the declaration.

The Court held that the sections failed to clearly delineate the responsibilities for repairing exclusive use common elements after normal wear and tear, creating an unworkable mutual obligation.

The appeal was allowed and an order was granted to amend the declaration to clarify that unit owners are responsible for maintaining and repairing exclusive use common elements at their own expense.