Martin Diegel

The plaintiffs brought a motion to remove Martin Diegel and his firm as counsel of record for the defendants, alleging a conflict of interest because Mr. Diegel may be a necessary witness at trial and because of a potential conflict between the defendants.

The court found that the motion was premature, that there was no clear evidence Mr. Diegel would be a necessary witness, and that any potential conflict between defendants was speculative.

The motion was dismissed, with costs to the defendants.

The appellants appealed an order striking their Statement of Defence for failing to comply with interlocutory orders and documentary disclosure obligations.

The motion judge had found deliberate non-compliance over 2.5 years.

The Court of Appeal dismissed the main appeal, upholding the striking of the Statement of Defence, finding the motion judge's decision was open on the record, legally sound, appropriate, and proportionate given the lengthy and deliberate delay.

The court also dismissed the argument for a "last chance" order.

However, the court granted leave to appeal costs and reduced the costs of the action from $5,000 to $3,000 due to a calculation error.

The applicant brought an application seeking to manage the personal care of her elderly mother, challenging the validity of recent powers of attorney granted to the mother's husband and son.

The applicant alleged the mother lacked capacity and was subject to undue influence, and alternatively sought to be appointed guardian and requested ordered visits.

The court dismissed the application, finding insufficient evidence of incapacity or undue influence to invalidate the powers of attorney.

The court also declined to appoint a guardian or order visits, noting the mother was not found incapable of personal care and the court's parens patriae jurisdiction was not warranted.

The plaintiff landscaping company brought a construction lien action for an unpaid balance of $19,465.00 for stonework performed at the owner's property.

The defendants counterclaimed for damages for delay and deficiencies.

At the reference, the plaintiff moved to strike portions of a defendant's affidavit that contradicted an admission made on discovery that the defendant had not corrected the alleged deficiencies.

The court refused to allow the withdrawal of the admission, finding it would cause non-compensable prejudice.

The court granted the plaintiff's claim, finding the delays were caused by the general contractor and there was no evidence of deficiencies.

The general contractor was ordered to pay the outstanding balance, and the owner was found personally liable for the $18,000.00 statutory holdback.

The counterclaim was dismissed.

The Court of Appeal for Ontario heard two appeals concerning a priority dispute over accelerated interest in closed mortgages and a costs order in a receivership.

The primary issue was whether the first mortgagee, First National Financial GP Corporation (FN), was entitled to future, unearned, accelerated interest upon the early discharge of its closed mortgages due to the mortgagors' default and court-ordered sale.

The court found that the trial judge erred by failing to conduct a full contractual analysis of the mortgage provisions and by relying on a standalone common law entitlement to accelerated interest.

The Court of Appeal held that the mortgage terms explicitly provided for FN's entitlements upon default, which did not include accelerated interest.

The appeal regarding accelerated interest was allowed.

The appeal concerning the receiver's costs was dismissed, as the trial judge's discretion was properly exercised.

A paralegal who represented individual consumers in Small Claims Court actions against the defendants brought a motion seeking compensation from class counsel's fees following the settlement of a related class proceeding.

The paralegal argued that his independent efforts, including media interviews, pressured the defendants to settle and benefited the class, justifying payment on the basis of quantum meruit or unjust enrichment.

The court dismissed the motion, finding no contractual agreement between the paralegal and class counsel.

Furthermore, there was no evidence that class counsel requested, encouraged, or acquiesced to his efforts, nor any proof that his actions influenced the settlement.

The bankrupt applied under s. 187(5) of the Bankruptcy and Insolvency Act to vary a conditional discharge order, arguing the Trustee incorrectly calculated surplus income and failed to consider his family and financial situation.

The Trustee opposed, arguing the application was premature and should have been brought under s. 172(3).

The court held that s. 187(5) was the appropriate mechanism because the bankrupt sought to adduce new evidence and arguments overlooked at the initial hearing.

The court found the Trustee's surplus income calculation was incorrect as it failed to account for the bankrupt's actual monthly income and his custody of two children.

Concluding that further payments would hinder the bankrupt's rehabilitation, the court varied the order to grant an absolute discharge.

This appeal arose from a summary judgment order finding a franchise agreement effectively rescinded due to deficient financial disclosure (FDD) under the Arthur Wishart Act (Franchise Disclosure), 2000.

The motion judge had also found two individuals to be "franchisor's associates" and jointly and severally liable.

The appellants argued the motion judge misapplied the "informed investment decision test" and erred in finding the individuals were associates and imposing joint and several liability.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that the FDD was so deficient as to amount to no disclosure, that the informed investor test was correctly applied, and that the individuals met the definition of franchisor's associates, warranting joint and several liability.

The applicant mortgagee sought a declaration of entitlement to a yield maintenance payment (prepayment of future interest) following the sale of two mortgaged properties by a court-appointed receiver.

The respondent mortgagors and a second mortgagee opposed the claim, arguing the mortgages were opened by the receiver's actions, triggering the equity of redemption, and that the payment offended the anti-deprivation rule and the Interest Act.

The Superior Court of Justice held that the mortgages remained closed, the receiver's actions did not constitute a realization on the security, and the mortgagee was entitled at common law to the future interest to the end of the term.

The court declared the applicant entitled to $1,473,141.82.

The applicant, a first mortgagee, sought a declaration of entitlement to a yield maintenance payment of approximately $1.5 million following the court-appointed receiver's sale of two commercial properties.

The mortgagors and a second mortgagee opposed the payment, arguing it was not contractually authorized, offended the anti-deprivation rule, violated the Interest Act, and that the receiver's sale constituted a realization on security triggering the equity of redemption.

The court held that the mortgages were closed and, under common law, the mortgagee was entitled to lost future interest upon early discharge.

The court rejected the statutory and common law defenses, noting the court orders explicitly deemed the mortgagee was not realizing on its security.

The applicant was awarded $1,473,141.82.

The court approved the sale of real property by the Receiver but reserved decision on the Receiver's and its counsel's fees.

The Debtor sought a 50% reduction in fees.

The court applied factors from Re Bakemates International Inc. to assess fairness and reasonableness.

While the Receiver's and counsel's fees to January 2020 were deemed reasonable, the estimated additional fees to close the file were reduced from $16,950 to $10,000 due to the Receiver's initial motion record lacking sufficient evidence for the property sale approval.

The receiver sought declaratory relief regarding an appeal of an approval and vesting order for the sale of a two-building apartment complex with 110 units, 30 of which were designated for affordable housing.

The receiver sought declarations that the appeal was governed by the Bankruptcy and Insolvency Act, that the appellants lacked an automatic right of appeal and must seek leave, and that any automatic stay under the BIA should be cancelled.

The appellants challenged the sale price, arguing it did not represent fair market value and pointing to late offers as evidence.

The court found the late offers were not credible and that no loss exceeding $10,000 had been demonstrated, thereby requiring leave to appeal.

The court also cancelled any stay to permit the transaction to close.

The defendants, JP Gravel Construction Inc. and Jean-Pierre Gravel, brought a motion seeking leave to discharge a construction lien registered by the plaintiff, 9585800 Canada Inc. o/a Earth Movers, and to dismiss the lien action.

The plaintiff had initially registered a "First Lien" with a typographical error in the timeframe of services, discharged it, and immediately registered a "Second Lien" with the corrected timeframe.

The defendants argued the second lien was invalid under s. 48 of the Construction Lien Act due to the discharge of the first, and was exaggerated.

The court granted leave for the motion but dismissed the defendants' request to discharge the second lien, finding the first lien to be a nullity due to the incorrect timeframe, thus making s. 48 inapplicable to the valid second lien.

Costs were awarded to the plaintiff.

Phillips and Moulds sought to recover costs awarded against Petrelli Construction and Mr. Petrelli personally, bringing a motion for orders including striking Petrelli Construction's defence to counterclaim, compelling undertakings, and substituted service for an examination in aid of execution.

Petrelli Construction brought a cross-motion seeking a declaration that the costs order against Mr. Petrelli was unenforceable due to a consumer proposal in bankruptcy, or a referral to Bankruptcy Court, and dismissal of the counterclaim.

The court found the counterclaim discontinued under Rule 24.03, dismissing Phillips and Moulds' related requests.

The issue of the costs order's enforceability against Mr. Petrelli personally was referred to a judge in Bankruptcy Court.

Substituted service on Petrelli Construction for examination was granted, but denied for Mr. Petrelli personally.

Following a judgment in favour of the plaintiffs by counterclaim for $181,448.80 against their brother for stripping assets from their late father's estate, the successful parties sought full indemnity costs.

The court declined to award full indemnity costs for the trial portion, noting the brother's pleadings had already been struck and he did not participate in the trial.

Costs were awarded on a substantial indemnity scale, fixed at $21,985.00 for one brother and $13,930.00 for the other.

This action involved a counterclaim by an estate and its beneficiaries against a former plaintiff for the conversion of estate assets.

The former plaintiff's initial claim was discontinued, and his defenses to the counterclaim were struck, leading to an assessment of damages.

The court determined the value of converted assets and, after accounting for the former plaintiff's residuary interest, granted judgment against him.

Remaining estate assets were ordered to be vested in the beneficiaries.

The appellants appealed a motion judge's decision finding them liable under the oppression remedy.

The appellants conceded that Tam and the pharmacy were liable but argued that the motion judge erred in finding the landlord and RTM Resources liable.

The appellants contended that the statement of claim pleaded intent to defeat the claim, which could not be decided on a motion, and that the respondent failed to prove the defendants were affiliates.

The Court of Appeal dismissed the appeal, finding that under the oppression remedy, effect rather than intent is determinative, and that the motion judge's findings sufficiently established that both entities were affiliates controlled by the same person.

The defendant landlord brought a motion for summary judgment to dismiss the plaintiff tenant's claim for negligent misrepresentation regarding building occupancy levels prior to signing a commercial lease.

The defendant argued the claim was statute-barred and precluded by an entire agreement clause.

The court dismissed the motion, finding a genuine issue requiring a trial regarding when the plaintiff discovered the loss or damage for limitation purposes.

The court also declined to grant summary judgment based on the entire agreement clause, reasoning that doing so while the defendant's counterclaim for rent arrears proceeded to trial risked inconsistent findings and substantive injustice.

The appellants appealed a trial judgment, arguing that there was an understanding that the respondent had a 24-hour cooling-off period to withdraw from a deal, and that the respondent failed to communicate this understanding.

The Court of Appeal upheld the trial judge's findings that the evidence was too tentative to support a legally enforceable cooling-off provision, and that even if such a provision existed, the appellants failed to demonstrate that withdrawal was communicated within the 24-hour period.

The appellants' damages claim was found to be speculative.

Following a successful summary judgment motion for an oppression remedy, the plaintiff sought costs of $22,352.93.

The defendants argued for a reduced amount of $7,500 due to the plaintiff's unsuccessful fraud claims and challenged the validity of the plaintiff's offer to settle.

The court found the offer to settle was valid, entitling the plaintiff to substantial indemnity costs from the date of the offer.

The court made a nominal reduction for the unsuccessful fraud claims and fixed costs at $21,000 inclusive of disbursements and HST.