Mark S. Shapiro

The Applicants, Roof Tile Management Group Inc. and Roof Tile Management Inc., brought an application seeking declaratory relief and other non-monetary orders, along with a motion to amend their Notice of Application to seek a reference for damages.

The Respondents, Henry Forget and 2149220 Ontario Inc., opposed both the amendment and the application as the proper form of proceeding, arguing that the case involved highly contested facts requiring an action.

The court dismissed the Applicants' motion to amend, finding it would improperly bifurcate the proceeding and cause procedural injustice.

The court also converted the application into an action under Rule 38.10, determining that an application was not the appropriate forum to resolve the significant factual disputes concerning liability and damages.

The defendants were successful in obtaining a temporary stay of the Ontario action and sought costs of the motion on a partial indemnity scale.

The plaintiff argued that costs should follow the cause and be awarded upon final disposition, or that the parties should bear their own costs because the defendants were only partially successful.

The court rejected the plaintiff's arguments, finding the defendants were the successful parties and entitled to costs payable forthwith.

Costs were fixed at $23,687.55 on a partial indemnity scale.

The defendants, Chris Schoonderwoerd and National Bank Financial, brought a motion to stay an action commenced by Edward Jones in Ontario on the basis of forum non conveniens.

Edward Jones alleged that Schoonderwoerd, a former investment advisor, breached non-solicitation and non-disclosure terms of his employment contract, with the assistance of National Bank Financial.

The court acknowledged jurisdiction in Ontario but found Alberta to be the clearly more appropriate forum, considering the location of parties, performance and alleged breach of contract, and the vast majority of relevant witnesses.

The motion to stay the Ontario proceedings was granted.

The appellants appealed a summary judgment enforcing personal and corporate guarantees of a loan agreement.

The loan agreement specified interest rates of 2.5% per 30 days pre-maturity and an additional 0.416% per 30 days post-maturity, but lacked an express statement of the yearly equivalent rate.

The appellants argued the Interest Act limited recoverable interest to 5% per annum.

The motion judge found the appellants were bound by a forbearance agreement and a subsequent court-ordered agreement in which the borrower waived any Interest Act defences.

The Court of Appeal upheld the judgment, finding the appellants, as directing minds of the borrower, were bound by the borrower's waiver of Interest Act arguments.

The plaintiff brought a motion under Rule 45.02 for an order requiring the defendants to pay $1,848,000 into court.

The funds were originally held in escrow pursuant to an asset purchase agreement but were released to the defendants after the plaintiff failed to serve a loss notice on the escrow agent before the contractual deadline.

The court dismissed the motion, finding no serious issue to be tried regarding the plaintiff's claim to the specific fund, as the defendants did not improperly direct the release of the funds and the escrow agent acted in accordance with the agreement.

The defendants brought a motion to stay an action for payment on written guarantees, arguing that Ontario lacked jurisdiction simpliciter or, alternatively, that Alberta was the more appropriate forum (forum non conveniens).

The guarantees contained a choice of law and forum selection clause designating Ontario.

The court dismissed the defendants' motion, finding that Ontario had jurisdiction based on the contracts being made in Ontario (acceptance by email) and that the defendants, as sophisticated business parties, failed to demonstrate "strong cause" to override the forum selection clause.

The court rejected arguments of uneven bargaining power and public policy concerns, distinguishing consumer protection cases.

The plaintiffs' home was flooded twice due to a cast iron water main breaking in front of their driveway.

They sued the City of Vaughan for negligence and nuisance.

The City argued its failure to replace the water main was a policy decision exempt from liability under the Municipal Act.

The court found the City's inaction was an operational decision, as it failed to follow its own internal barometer for replacing water mains with a history of breaks.

The City was found liable for negligence, and the plaintiffs were awarded agreed-upon damages of $480,000.

The appellant tenant appealed a ruling that a commercial lease and its right of first refusal were properly terminated by the respondent landlord.

The landlord had unconditionally accepted a third-party offer to purchase the leased premises without first notifying the tenant or allowing it to match the offer, and then purported to terminate the lease.

The Court of Appeal allowed the appeal, holding that the landlord was obliged to inform the tenant of the offer and afford it an opportunity to match before unconditionally accepting the third-party offer.

The court ordered the landlord to enter into an agreement of purchase and sale with the tenant on the same terms.

Cross-applications sought interpretation of a right of first refusal clause in a commercial lease.

The tenant argued the right crystallized into an option to purchase once the landlord received an offer and could not be defeated by termination of the lease.

The landlord contended the clause was expressly limited by a lease provision allowing termination upon receipt of an agreement of purchase and sale.

The court held the right of first refusal was expressly subject to the termination mechanism in the lease.

The landlord’s notice of termination under the relevant clause validly ended both the tenancy and the right of first refusal.

Cross-applications sought interpretation of a right of first refusal clause in a commercial lease.

The tenant argued the right crystallized into an option to purchase once the landlord received an offer and could not be defeated by termination of the lease.

The landlord contended the clause was expressly limited by a lease provision allowing termination upon receipt of an agreement of purchase and sale.

The court held the right of first refusal was expressly subject to the termination mechanism in the lease.

The landlord’s notice of termination under the relevant clause validly ended both the tenancy and the right of first refusal.

A self‑represented former client brought an application seeking assessment of his former solicitor’s legal accounts under the Solicitors Act.

The accounts had been delivered more than 12 months earlier, requiring the applicant to establish “special circumstances” to permit assessment.

The court found special circumstances existed because the solicitor failed to promptly deliver properly signed and detailed accounts and sent several invoices by email long after services had been performed and after the retainer had ended.

Relying on appellate authority emphasizing the importance of the client’s right to assessment, the court exercised its discretion to permit the reference.

All legal accounts were ordered to be assessed by an Assessment Officer.

The defendants brought a motion to dismiss or stay the action on the basis that Ontario lacked jurisdiction or, alternatively, that Manitoba was the more appropriate forum.

The plaintiff alleged breach of employment contract obligations, including confidentiality and non-solicitation provisions, and related economic torts following the departure of an investment advisor to a competing firm.

Applying the presumptive connecting factor framework from Van Breda, the court held that Ontario had jurisdiction because the employer carried on business in Ontario and the employment contract was formed in Ontario when acceptance was received there.

The defendants failed to rebut the presumption of a real and substantial connection or demonstrate that Manitoba was clearly the more appropriate forum.

The plaintiff’s cross-motion to have the action tried together with three other related Ontario actions was also dismissed due to material factual and contractual differences between the cases.

Following a successful motion by the applicant in matrimonial litigation to add additional parties, the court addressed costs on written submissions.

The respondents and proposed respondents had vigorously opposed the motion to add parties and argued that each party should bear their own costs or that costs should be reserved to the trial judge.

Applying Rule 24 of the Family Law Rules and the principles governing costs articulated in Fong v. Chan, the court held that the successful party was presumptively entitled to costs.

The court found the applicant wholly successful and awarded substantial indemnity costs, subject to proportionality considerations and adjustments to the claimed amount.

Costs totalling $43,586.07 were fixed and apportioned among the former husband and the newly added parties.

Following the respondents’ successful defence of a motion for injunctive and related relief, the court was required to fix costs after the parties failed to agree.

The respondents sought substantial indemnity costs exceeding $114,000, alleging that the applicants’ conduct was reprehensible and that a settlement offer justified enhanced costs under Rule 49.

The court held that the settlement offer was not timely and that the applicants’ conduct did not meet the high threshold for substantial indemnity costs.

Applying the factors in Rule 57.01, the court concluded the motion was relatively straightforward and that the respondents’ use of multiple counsel was unnecessary.

Costs were fixed on a partial indemnity basis at $50,000 inclusive of fees, disbursements, HST, and earlier costs awarded in the cause.

The appellant husband appealed a motions judge's finding that the parties had reached a settlement agreement regarding the division of their property, including the matrimonial home and the husband's business.

The Court of Appeal found that the motions judge's conclusion was not supported by the evidence, noting that the wife's former solicitor's evidence contradicted the finding.

The appeal was allowed, and the judgment was set aside in its entirety.

The appellant contractor obtained a judgment against the owner and garnished funds held by an escrow agent.

The respondent, another judgment creditor, also garnished the funds.

The sheriff distributed the funds pro rata under the Creditors' Relief Act.

The appellant appealed, arguing the funds were impressed with a trust under s. 7(2) of the Construction Lien Act.

The Divisional Court allowed the appeal, holding that the funds were trust funds, were not the property of the debtor, and were therefore not subject to pro rata distribution under the Creditors' Relief Act.