Mark Klaiman

The plaintiff sought costs of $20,000 on a substantial indemnity basis against the defendant Lynch following a successful motion for a Certificate of Pending Litigation.

The defendant argued costs should be in the cause or fixed at $5,000.

The court found the plaintiff was successful and the motion should have been resolved on consent, but reduced the requested amount for proportionality, fixing costs at $14,000 payable by the defendant Lynch.

The defendants brought a motion to strike the plaintiff's amended statement of claim under Rule 21.01(1)(b) for failing to disclose a reasonable cause of action.

The plaintiff, a home builder, had sued the defendant land developer and its principal for breach of contract, various torts, and oppression arising from a completed agreement of purchase and sale.

The court systematically analyzed all nine causes of action pleaded by the plaintiff and found that each failed to plead the necessary material facts or relied on non-existent legal duties.

The court struck all claims without leave to amend and dismissed the action.

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 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 plaintiff purchased 50% of the shares in the corporate defendant for $400,000.

Following the purchase, the individual defendant denied the plaintiff access to banking records, paid illegal kickbacks to suppliers, and misappropriated corporate funds and assets.

The plaintiff brought an action for an oppression remedy under s. 248 of the Business Corporations Act.

The court found that the defendant's conduct was oppressive and unfairly disregarded the plaintiff's reasonable expectations from the outset.

The court ordered the defendants to pay the plaintiff $400,000, representing the original purchase price of the shares.

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.

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 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 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.

The plaintiff creditor brought a motion for summary judgment seeking to impose liability on multiple defendants arising from unpaid invoices for tires supplied to a corporate purchaser.

The plaintiff relied on alleged non‑compliance with the Bulk Sales Act and alleged fraudulent conveyances arising from the sale of the debtor company.

The court held that summary judgment was inappropriate because the Bulk Sales Act claim had not been pleaded and the evidentiary record did not establish fraudulent conveyance or liability of the additional defendants.

On a cross‑motion, certain defendants successfully sought to vacate a certificate of pending litigation and dissolve a Mareva injunction obtained ex parte, as the plaintiff failed to demonstrate an interest in land or a strong prima facie case with risk of asset dissipation.

Franchisee applicants sought declaratory relief under Rule 14 alleging the franchisor failed to provide statutory disclosure required under the Arthur Wishart Act (Franchise Disclosure), 2000 and Alberta’s Franchises Act in connection with three restaurant franchises.

They sought rescission of the franchise agreements and recovery of invested funds.

The court found that the central issue—whether disclosure was actually provided and when—turned on sharply conflicting affidavit evidence and credibility disputes.

Because these issues required viva voce evidence and credibility findings, they could not be resolved on an application.

The court ordered that the application proceed to trial and be treated as an action, with damages and disclosure adequacy issues to be determined at trial.

A dispute arose over the interpretation of a bonus provision in an independent consultant agreement between a brokerage manager and an insurance brokerage.

The plaintiff argued that once the contractual production threshold was met, the bonus percentage applied to total production, while the defendants argued it applied only to production above the threshold.

The court interpreted the contract as granting a bonus calculated on total production once the threshold was achieved, emphasizing the wording of the agreement and the factual matrix.

In the alternative, the court held that any ambiguity would be resolved against the drafter under the doctrine of contra proferentem.

The plaintiff recovered unpaid bonus commissions but was denied additional damages for lost income due to failure to mitigate.

The defendants’ counterclaim alleging breach of fiduciary duty and solicitation was dismissed for lack of evidence.