Martin Zvi Black

The plaintiffs brought a motion to amend their Statement of Claim to add the defendants' counsel and the individual defendant's parents as parties, alleging they received trust funds from the sale of a property.

The court dismissed the motion, finding that adding the defendants' counsel would cause non-compensable prejudice by depriving the defendants of their counsel of choice in complex, intertwined litigation.

The plaintiffs also sought costs for a withdrawn production motion regarding bank records.

The court awarded the plaintiffs $4,000 in partial indemnity costs thrown away, as the defendants had failed to produce the records in the required format until after the motion was brought.

The appellant appealed a trial decision dismissing its breach of contract and construction lien claims and granting the respondent's counterclaim for fraud relating to a real estate development project.

The appellant argued the trial judge erred by allowing an amendment to plead fraud without formal leave under the Construction Act, admitting propensity evidence, misapprehending evidence of fraud, and failing to meaningfully analyze the breach of contract claim.

The Divisional Court dismissed the appeal, finding the trial judge implicitly granted leave for the amendment on consent, properly used past misconduct for credibility assessment rather than propensity, and made factual findings of fraud and fundamental breach that were free from palpable and overriding error.

The applicant sought entitlement to life insurance proceeds to reimburse expenses for her father's care prior to his death.

The respondent sought removal of the applicant from her positions as estate trustee and trustee of a trust holding corporate shares, and challenged the validity of the deceased's will and trust provisions.

The court found the applicant entitled to the insurance proceeds based on a binding agreement, upheld the validity of the will and trust, declined to remove the applicant as director or estate trustee, but removed her as trustee of the shares due to conflict of interest.

The court considered two motions: (1) by the Defendants/Plaintiffs by Counterclaim (the 501 Parties) for leave to file a Fresh as Amended Statement of Defence and Counterclaim, and (2) by the Plaintiffs/Defendants by Counterclaim (the 2B Parties) for a further and better Affidavit of Documents.

The court granted the 501 Parties' motion, finding no abuse of process or limitation period bar, and authorized the Amended Pleading.

The court also largely granted the 2B Parties' request for further production, ordering disclosure of missing bank records and email attachments, and set out a process for resolving any further disputes over redactions or missing documents.

The court granted a motion to remove D. Kenneth Gibson and Gibson LLP as counsel of record for Wildpine Residence Inc. in a construction lien proceeding, due to Mr. Gibson's role as a key material witness at trial.

The decision addresses the conflict between a lawyer's role as advocate and as witness, and the need to preserve the integrity of the trial process.

The court found that the interests of justice required the removal of Mr. Gibson and his firm, and ordered Wildpine Residence Inc. to appoint alternative counsel within 60 days.

The court considered costs following the dismissal of a motion to set aside a default judgment for foreclosure and the noting in default of the defendant, Eric Manirambona.

The court found that the defendant's conduct, including intentional delay and false allegations, warranted an award of substantial indemnity costs.

The court fixed costs at $28,000, payable forthwith by the defendant to the plaintiff, and excluded Ural Link Ltd. from the costs order as it did not participate in the motion.

The applicant, Harmur Investments Limited, sought a vesting order declaring that it had acquired, through adverse possession, title to two parcels of land in the Township of Greater Madawaska.

The court found that Harmur had not acquired title to the parcel known as "the Triangle" but had acquired title to the parcel known as "the Boathouse Parcel." The decision provides a detailed analysis of the requirements for adverse possession under Ontario law, including the necessity of actual possession, intention to exclude, and effective exclusion of the true owner.

The moving party was successful on a motion to stay the discharge of its construction lien pending appeal and sought costs of $20,000.

The responding party argued costs should be reserved to the appeal panel or fixed at $5,000.

The Divisional Court fixed costs at $9,000 in favour of the moving party, finding its claimed costs disproportionate for a straightforward stay motion.

The payment of costs was stayed pending the determination of the appeal.

The defendant, Eric Manirambona, moved to set aside a default judgment for foreclosure on a commercial property in Renfrew, Ontario.

The court reviewed the chronology of events, the defendant’s financial circumstances, and the applicable legal principles.

The court found that the motion was not brought with reasonable promptness, there was no reasonable prospect of payment, and the defendant had not been active in raising the necessary funds.

The court also found no special circumstances or intrinsic value in the property for the defendant.

The motion was dismissed.

The moving party, 2B Developments, sought an order staying the trial judge's final order which dismissed its action, discharged its construction lien, and awarded damages to the respondent.

Applying the RJR-MacDonald test, the Divisional Court found that the appeal raised serious issues to be tried, including procedural fairness and the trial judge's finding of fraud.

The court held that 2B would suffer irreparable harm if the stay were refused because the discharge of a construction lien is irrevocable, resulting in the permanent loss of a statutory right.

Finding the balance of convenience favoured 2B, the court granted the motion to stay the discharge of the lien pending appeal.

The applicants sought to appoint Derek Stanley Metcalfe and Richard Cotnam as estate trustees.

The respondent consented to his own removal but opposed the appointment of Mr. Metcalfe, alleging conflict of interest and bias.

The court found that while there was friction between the parties, it did not rise to a level that would prevent the proper execution of the trust or show a lack of impartiality.

The court appointed the applicants' proposed trustees and awarded partial indemnity costs of $19,600 payable by the respondent personally.

The moving parties, Orange Transport Inc., Charbel Matar, and Maroun Aoun, sought a Mareva injunction against Joe Nahra to prevent him from transferring or encumbering his property and disposing of assets, and a certificate of pending litigation (CPL) on his property.

They alleged Nahra breached fiduciary duties, misappropriated funds, and competed directly with Orange Transport, causing significant losses.

Nahra disputed the allegations, claiming he was divested of directorial authority before competing and that asset sales were for legitimate expenses.

The court dismissed both the Mareva injunction and CPL requests, finding the moving parties did not establish a strong prima facie case, nor did they prove Nahra's intent to defraud by dissipating assets.

The balance of convenience also did not favor granting the injunction, and the CPL was denied as the claim did not assert an interest in the land and was not pleaded.

Two applications were brought regarding the validity of a $689,000 mortgage registered against two properties owned by the applicant.

The estate of the deceased chargee claimed the mortgage was valid and secured funds allegedly stolen by the applicant's parents, while the applicant claimed she never authorized or knew about the mortgage and that her signature was forged.

The court found that material facts surrounding the execution of the mortgage were in dispute, requiring findings of credibility and potentially expert evidence.

Consequently, the court adjourned the applications and directed that the issues proceed to trial pursuant to Rule 38.10(1)(b) of the Rules of Civil Procedure.

The appellant appealed a decision of the Ontario Land Tribunal regarding the interest payable on compensation for expropriated land.

The appellant argued that interest should run from an earlier date based on a redevelopment use and at a higher rate of 12% due to delay.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Tribunal's factual findings that the productive use of the land was as a rental building and ceased only upon formal expropriation.

The Court also upheld the Tribunal's discretionary refusal to award a higher interest rate, as it had not been pleaded, and declined to consider a new claim for compound interest.

This motion concerned the entitlement to funds held in court, initially part of a beneficiary's share of an estate, which were subject to a condition (provision of a letter of credit) that was never met.

The beneficiary, now an undischarged bankrupt, purported to assign his interest in these funds to a charitable foundation for his children before his bankruptcy.

The Estate Trustee and Trustee in Bankruptcy sought an order directing the funds to be paid out according to their settlement.

The court addressed the standing of the bankrupt and the foundation, the application of the Law of Assent regarding the transfer of estate assets, and whether the purported assignment was a reviewable transaction under the Bankruptcy and Insolvency Act.

The court found that neither the bankrupt nor the foundation had standing, that the Estate Trustee had never assented to the transfer of the funds to the bankrupt, and that the purported assignment was a reviewable transaction made for nominal consideration to non-arm's length parties with inferred intent to defraud creditors.

The motions brought by the Estate Trustee and Trustee in Bankruptcy were granted, directing the funds to be paid to the bankruptcy estate and the estate creditors.

The appellant, Joanne Sicotte, appealed a motion judge's decision that dismissed her summary judgment motion on a commercial mortgage guarantee and instead granted summary judgment to the respondents.

The Court of Appeal found the motion judge erred by conflating the primary debt with the guarantee obligations and misinterpreting "owing" versus "enforceable" debt.

The appeal was allowed, the lower order set aside, and summary judgment was granted in favour of the appellant against the guarantors.

The defendants brought a motion to discharge a claim for lien and certificate of action, and for security for costs.

The plaintiff brought a cross-motion.

The court ordered the claim for lien and certificate of action discharged as they were registered late.

The court also ordered the plaintiff to post security for costs in the amount of $27,500.

The plaintiff was granted leave to maintain the action under the Business Names Act.

Costs of the motions were awarded to the defendants in the amount of $15,000.

The plaintiff moved for summary judgment against the individual guarantors of a commercial mortgage granted by the corporate defendant.

The guarantors argued the corporate defendant was not in default because the plaintiff had executed a postponement of debt agreement in favour of the Business Development Bank of Canada (BDC).

The court found that the clear terms of the postponement agreement meant no amounts were presently owing to the plaintiff until the BDC loan is repaid in 2043.

As the corporate borrower was not in default, the guarantees could not be enforced.

The court granted a 'boomerang' summary judgment dismissing the plaintiff's claim against the guarantors.

The applicant brought a motion to enforce undertakings and refusals from cross-examinations and for leave to file a supplementary affidavit in the context of an oppression application.

The court held that questions regarding the existence of directors' and officers' insurance policies need not be answered, as the rules compelling disclosure of insurance in actions do not apply to applications where discovery is not available.

However, questions regarding the corporation's financial statements were ordered to be answered.

The court also granted the applicant leave to file a supplementary affidavit based on newly disclosed financial information.

The Third Party sought costs after partially succeeding on a motion to strike claims in an Amended Third Party Claim.

The Defendant opposed, arguing the motion was unnecessary and the Third Party introduced a new issue late.

The court found divided success on the motion to strike and unreasonable behaviour from both parties, including the Defendant's poorly drafted Third Party Claim and the Third Party's improper Demand for Particulars and late introduction of an objection.

Consequently, no costs were awarded to either party.