Mark Veneziano

The appellant appealed a trial decision ordering specific performance of an oral agreement to sell land to the respondent for $4.1 million.

The appellant argued the oral agreement was unenforceable under s. 4 of the Statute of Frauds, contending the detrimental reliance aspect of the doctrine of part performance was not met because the respondent's only obligation was to pay the purchase price, which was tendered but refused.

The Court of Appeal dismissed the appeal, finding the trial judge did not err in concluding the respondent irremediably carried out its obligations to its detriment by taking all necessary steps to close the transaction while the appellant stood by.

The plaintiff was entirely successful at a five-day trial for specific performance of an oral agreement for the sale of land and sought partial indemnity costs of $164,698.14.

The defendant argued the costs were excessive due to over-lawyering and suggested $70,000.

The court reviewed the factors under Rule 57.01 and the principles from Apotex, reducing the legal fees to account for duplication but allowing time for an articling student who managed documents during the virtual trial.

The court awarded the plaintiff $100,000 in fees plus $19,120.98 in disbursements, plus HST.

The plaintiff purchaser brought an action for specific performance of an oral agreement to purchase a 32-acre property from the defendant owner.

The parties had negotiated an all-cash deal for $4.1 million, with the purchaser paying a $200,000 broker commission.

The owner later refused to close the transaction, arguing there was no binding agreement and relying on the Statute of Frauds.

The Superior Court of Justice found that a binding oral agreement was reached on all essential terms.

The court held that the doctrine of part performance applied, taking the agreement outside the Statute of Frauds, as both parties had engaged in acts unequivocally referable to the land.

Finding the property unique due to its contiguity with the purchaser's existing land, the court ordered specific performance.

On the eve of trial, the plaintiffs brought a motion for further documentary production and discovery after the defendants provided late answers to questions previously refused during examinations for discovery.

The defendants argued that issue estoppel applied due to previous unsuccessful refusals motions.

The court rejected the issue estoppel argument, finding that the defendants altered the litigation landscape by voluntarily providing the late answers.

The court ordered limited, file-specific documentary production relevant to the new answers, but denied broader discovery requests to avoid delaying the trial.

The plaintiffs brought a motion to enforce a $200,000 settlement under Rule 49.09, arguing they had accepted a 2016 offer from the defendants in 2020.

The court found that while the 2016 letter contained a valid Rule 49 offer that remained open for acceptance, the plaintiffs' purported acceptance in 2020 introduced new terms regarding mutual releases and costs involving parties not represented by the offeror's counsel.

Consequently, the purported acceptance was a counter-offer, and no agreement on essential terms was reached.

The motion to enforce the settlement was dismissed.

The Court of Appeal fixed the respondents' costs of the appeal at $90,000 inclusive of disbursements and applicable taxes.

The appellant physician appealed a jury verdict finding him liable for negligent management of a twin pregnancy, which resulted in premature birth and brain damage to one of the twins.

The appellant argued the jury's verdict on causation was unreasonable due to a lack of evidence that the required treatment, amnioreduction, was available at the referral hospital in 1991.

The appellant also challenged the trial judge's jury instructions regarding adverse inferences, the characterization of expert evidence, and the failure to instruct on loss of chance.

The Court of Appeal dismissed the appeal, finding that there was an evidentiary basis for the jury's conclusion on causation and that the jury charge was fair, balanced, and legally correct.

Prior to a medical malpractice jury trial, the court ruled on several procedural and evidentiary motions.

The plaintiffs had entered into a Pierringer Agreement with the defendant hospital and nurses, leaving only the physicians as defendants.

The court ruled that both the plaintiffs and the physicians could cross-examine the settling nurses at trial.

The court also determined the sequencing and phrasing of jury questions, ruling that standard of care must be determined before causation, and permitting 'caused or contributed' language due to the presence of multiple tortfeasors.

Finally, the court allowed the plaintiffs to use photographs of the amputations in their opening address but restricted the experts' use of lengthy PowerPoint presentations.

The plaintiff, a foreman for a drywall contractor, was summarily dismissed after working for the defendant for several years.

The defendant argued the plaintiff was an independent contractor not entitled to notice.

The court applied the Sagaz test and found the plaintiff was an employee, as he worked exclusively for the defendant, used their tools, and did not share in profits or losses.

The court awarded a 6-month reasonable notice period based on the Bardal factors and found the defendant failed to prove a failure to mitigate.

Damages of $62,780 were awarded.

During a medical negligence jury trial involving the management of a twin pregnancy, the defendant obstetrician requested a jury instruction permitting an adverse inference against the plaintiffs for failing to call a treating physician from McMaster Hospital.

The court declined to give the instruction, applying the principle from Lambert v. Quinn that an adverse inference should not be drawn if the witness is equally available to both sides.

The court found the witness was compellable by the defendant and not peculiarly within the plaintiffs' power to produce.

The plaintiffs brought a medical malpractice action against the defendant obstetrician, alleging that he negligently caused a permanent brachial plexus injury to the infant plaintiff during delivery.

The plaintiffs argued that the defendant applied excessive downward lateral traction and improperly directed supra-pubic pressure after encountering shoulder dystocia.

The court found that the defendant met the standard of care expected of an obstetrician in 2004, properly executing the required maneuvers to resolve the obstetrical emergency.

The court rejected the plaintiffs' argument that the mere presence of the injury inferred excessive traction, noting that medical literature and expert evidence established that such injuries can occur from endogenous forces or gentle traction.

The action was dismissed.

The plaintiffs, property developers, brought a motion for leave to amend their statement of claim to add three new defendants and plead conspiracy and oppression regarding allegedly inflated billings for deficiency work.

The proposed defendants opposed the motion, arguing the claims were statute-barred under the Limitations Act, 2002.

The court granted the motion, finding the plaintiffs had exercised reasonable diligence in investigating the billing discrepancies and raised a triable issue regarding discoverability.

The court held that the proposed amendments disclosed a reasonable cause of action and would not cause undue prejudice.

The plaintiffs in two related actions brought motions for the production of information by the corporate defendants under the Business Corporations Act.

The parties settled the motions 'except for costs' and filed written costs submissions.

The plaintiffs sought substantial indemnity costs, arguing the motions were unnecessary as the defendants ultimately consented to the relief sought.

The court declined to award costs, holding that costs generally should not be awarded when parties settle 'except for costs.' The court reasoned that determining costs in such circumstances would require a hypothetical adjudication of the merits, which is an inefficient use of judicial resources and runs counter to the principle that costs are an incident of the determination of rights, not the subject matter of the dispute itself.

The applicant lender sought a declaration of coverage under a title insurance policy after a private mortgage transaction was discovered to be an identity fraud.

The respondent insurer denied coverage, relying on an exception that applied if mortgage proceeds were paid to anyone other than the registered titleholder.

The funds had been disbursed to the borrower's lawyer in trust.

The court held that the exception was ambiguous and did not clearly require direct payment to the titleholder.

Construing the ambiguity against the insurer, the court found the exception did not apply and declared that the policy provided coverage for the loss.

In a supplemental endorsement following a trial decision where the plaintiff was awarded $35,000 for delayed diagnosis but failed on claims of informed consent and surgical negligence, the plaintiff's counsel requested an assessment of damages had all claims succeeded.

The court assessed the hypothetical damages at $100,000 for pain and suffering, $100,000 for past loss of income, and $125,000 for future loss of income, plus the Ministry of Health subrogated claim and prejudgment interest.

Following a medical malpractice trial where the plaintiff was awarded $35,000 in damages for delayed diagnosis, the court determined the quantum of costs.

The parties agreed the plaintiff was entitled to partial indemnity costs for both the first and second trials.

The court noted the high cost of expert opinion evidence but declined to penalize the plaintiff for these expenses, particularly given the defendant's poor recordkeeping which complicated the case.

Costs were fixed at $210,000.

Subsequent mortgagees challenged the validity of a first mortgagee’s power of sale of a Toronto property, alleging they were never served with the required notice and that the notice misstated the amount owing under the mortgage.

The court found the notice of sale had not been served on the subsequent encumbrancers due to a mailing error and that the amount claimed owing was materially overstated through the improper inclusion of pre‑assignment expenses.

As a result, the statutory requirements of the Mortgages Act were not satisfied and the power of sale was invalid.

The purchaser was a bona fide purchaser for value but had actual notice that the validity of the sale was being challenged and therefore could not rely on statutory protections for “professed compliance.” The purchaser and related subsequent mortgagees did not obtain valid title or charges as against the applicants, though the independent first mortgagee lender retained a valid interest.

The applicants, a group of mortgage investors, applied to appoint a receiver over the property of the respondent, a not-for-profit corporation operating a church and school, due to an outstanding loan balance of approximately $11.5 million.

The respondent had previously commenced an action against the applicants alleging conspiracy and seeking restitution.

The court dismissed the application, finding it was not just and convenient to appoint a receiver because the respondent raised triable issues, the property value greatly exceeded the debt, and a receivership would effectively end the ongoing litigation and negatively impact the church and school.

The defendant landlord moved for a mandatory interlocutory injunction to compel the plaintiff tenant to allow access to the leased premises for environmental testing related to redevelopment.

The landlord relied on a lease provision requiring the tenant not to hinder redevelopment.

The court dismissed the motion, finding that the lease provision did not grant the landlord a right of access, the landlord's case on the merits was weak, and there was insufficient evidence of irreparable harm.