Matthew Kersten

The tenant appealed a Landlord and Tenant Board (LTB) decision regarding rent arrears and maintenance issues, specifically the lack of a dishwasher and in-unit laundry facilities.

The LTB had found the landlord complied with the lease by providing basement laundry access and ended a 20% rent abatement.

On appeal, the Divisional Court dismissed the tenant's arguments regarding lease interpretation and factual findings about the basement's condition.

However, the court remitted the issue of calculating the 'lawful rent' back to the LTB to consider the application of specific statutory discount rules under the Residential Tenancies Act that were not addressed in the original decision.

The defendants moved to strike the plaintiff's Statement of Claim under Rule 21.01(1)(b) of the Rules of Civil Procedure.

The plaintiff, who claimed an interest in a property destroyed by arson, sued the lender and the lender's lawyer for breach of contract, negligence, and breach of fiduciary duty regarding a construction mortgage.

The court struck the breach of contract claims because the plaintiff was not a party to the mortgage agreement.

The negligence and fiduciary duty claims against the lawyer were also struck because the lawyer owed no duty to the non-client plaintiff.

The motions were granted without leave to amend.

This is a costs decision following a nine-day trial in a breach of contract case concerning the distribution of proceeds from the 2012 sale of a company owned by the parties.

The plaintiff was awarded $405,199 out of a total claim of $2,319,567, representing only 18% of the amount claimed.

The plaintiff succeeded on one of three main issues (the distribution of profits after the 2012 sale) but failed on the validity/enforceability of amending agreements and the allocation of salaries.

The court awarded costs to the plaintiff as the successful party, but reduced the amount to account for the time and resources spent on unsuccessful issues.

Two business partners who built a successful commercial cleaning company and sold it for over $20 million in 2012 disputed the distribution of sale proceeds and allocation of profits.

The plaintiff challenged the validity of shareholder amending agreements signed in 2002 and 2009 that altered profit-sharing arrangements for newly established divisions.

The court found the agreements valid and enforceable but determined the defendant breached the agreements by unilaterally calculating the allocation of sale proceeds using revenue rather than profit as the basis, and by failing to involve the company's chartered accountant as required.

The court awarded the plaintiff $405,199 representing the overpayment to the defendant from the improper allocation methodology.

Claims regarding salary allocations were dismissed as statute-barred.

The Court of Appeal for Ontario dismissed the appeal of Facilitate Settlement Corporation, Kai Wu, and Jane Doe from a judgment terminating their residential tenancy and awarding the landlords, Ly Innovative Group Inc. and Meizhang Zhou, over $300,000 in rental arrears and $100,000 in punitive damages.

The appellants argued that the motion judge erred by refusing to sign a draft order reflecting a settlement, failing to recuse himself, and displaying bias.

The Court found no error in the motion judge’s exercise of discretion, no reasonable apprehension of bias, and admitted fresh evidence but found it did not affect the outcome.

This consolidated trial addressed multiple disputes between Raymond Nicolini (through Sayward Investments Inc., InSite Construction Management Inc., and King Station Facility Inc.) and Vilson Da Silva (through Leblon Carpentry Inc., Leblon Drywall Inc., and his wife Daenn Monteiro Loureiro).

The court found that Da Silva, Loureiro, and Leblon Carpentry breached a 2019 loan agreement with Sayward, owing $38,909.29.

A 2020 advance from Sayward to Leblon Carpentry and Da Silva was determined to be a loan, not a joint venture, with $203,735.20 owing.

The mortgage on the matrimonial home was held to secure only the 2019 loan, not the 2020 loan, due to lack of spousal consent.

The drywall contract between InSite and Leblon Drywall was found to have a price of $1,330,742, and Leblon Drywall was deemed overpaid, leading to the dismissal of its breach of contract claim.

The parties were found to have mutually terminated the drywall contract, releasing each other from claims for deficiencies and overpayments.

Claims of oppression and conspiracy brought by InSite were dismissed, as InSite was not a proper complainant for oppression and the lien claim lacked a predominant purpose to injure.

The defendants brought a motion under Rule 49.09 to enforce an alleged settlement agreement between themselves, the plaintiffs, and the third parties regarding the sale of a franchise business.

The court found that the communications between counsel, including an unsigned draft Minutes of Settlement, amounted only to a framework or an agreement to agree, particularly since the third parties had not committed to purchasing the assets.

The motion to enforce the settlement and for injunctive relief against the plaintiff was dismissed.

The applicant challenged his deceased mother's new will, alleging lack of capacity and undue influence by his sister, the estate trustee.

The litigation settled, with the applicant accepting the new will's terms after extensive document production.

The court then addressed costs, finding the applicant's claims lacked initial evidentiary support and constituted "scorched earth litigation." The court ordered the applicant to pay the respondents' costs on a substantial indemnity basis, fixed at $74,000, emphasizing the need to protect estates from unwarranted depletion by disgruntled beneficiaries.

The plaintiff, Marmak Holdings Inc., brought a motion for partial summary judgment seeking to recover a $250,000 deposit from the defendant purchaser, Iris Capital Inc., following the alleged repudiation of an Agreement of Purchase and Sale.

The plaintiff argued the deposit was forfeited after the defendant waived conditions but failed to close.

The defendant contended there were triable issues, including the enforceability of the agreement and whether the plaintiff properly accepted repudiation.

The court dismissed the motion, finding numerous complex and multi-layered genuine issues requiring a trial, emphasizing that *viva voce* evidence and credibility assessments were necessary and could not be fairly conducted on a paper record.

The defendant brought a motion for an order requiring the plaintiff to produce documents relating to its claims for breach of contract and defamation.

The plaintiff had sued the defendant for $2.3 million after the defendant initiated an $11,000 small claims action for unpaid invoices.

The court found the plaintiff's initial affidavit of documents deficient and ordered the delivery of a supplementary sworn affidavit of documents.

The defendant's request to set a discovery plan deadline was dismissed as premature.

The corporate defendants, BevCanna Operating Corp. and BevCanna Enterprises Inc., brought a motion seeking a permanent stay of the action or claims, arguing they were subject to an arbitration clause in their agreement with the plaintiff, Eurofins Experchem Laboratories, Inc. Eurofins contended that the agreement contained an exception for actions concerning unpaid fees and that the arbitration clause might not apply due to incorrect naming.

The court, applying the "pith and substance" test, found that the action, despite including claims like breach of trust and unjust enrichment, was fundamentally for the collection of unpaid fees, which was explicitly permitted by an exception in the agreement.

The motion to stay was dismissed, allowing the action to proceed in court.

This motion concerned refusals to answer questions on the grounds of solicitor-client privilege in the context of a summary judgment motion.

The Plaintiff argued that the Defendants had impliedly waived privilege by putting their counsel's state of mind in issue through their pleadings and affidavits.

The Defendants submitted that no implied waiver occurred.

The court found that the Defendants did not implicitly waive privilege, as the receipt of legal advice was not material to the defence.

The core issue was whether a third party consented to a transaction, not the legal advice received by the Defendants.

The motion was dismissed with costs fixed at $5,000 payable by the Plaintiff to the Defendant Iris Capital.

The defendants moved to dismiss or stay the plaintiff's action under Rule 21.01(3) due to pending related proceedings.

The court rejected arguments of res judicata and issue estoppel, finding no final determinations had been made.

It allowed the action to proceed against one defendant, Vilson Da Silva, as the claims were distinct and could not be brought in the existing lien action due to the Construction Lien Act.

However, claims against Leblon Carpentry were dismissed for lack of factual basis, and claims against Leblon Drywall were dismissed (without prejudice) as they were duplicative of an existing counterclaim in the lien action and contrary to the purpose of the Construction Lien Act.

To ensure judicial economy and avoid multiplicity of actions, the court ordered the transfer of a related Barrie action to Brampton and directed that all three interconnected actions be tried together or sequentially.

The defendants brought a motion to discharge Certificates of Pending Litigation (CPLs), alleging the plaintiff fraudulently obtained them by withholding a financial statement from a prior matrimonial file.

The plaintiff brought a cross-motion seeking to dismiss the defendants' motion as an abuse of process.

The court found that the defendants had prior knowledge of the "material and crucial" evidence but consciously chose not to present it at the original CPL motion.

Consequently, the court granted the plaintiff's motion, dismissing the defendants' motion to discharge the CPLs on the basis of abuse of process.

The court also criticized the defendants' litigation strategy and ordered that no further motions could be brought without leave of the Commercial List Team Lead.

This decision addresses the costs arising from a successful motion to annul a corporate bankruptcy.

The court found that the assignment into bankruptcy was an improper use of the Bankruptcy and Insolvency Act, driven by self-interest to halt ongoing litigation.

While the conduct was not 'especially egregious' to warrant full indemnity costs, it justified an award of substantial indemnity costs.

The court awarded the successful party $55,750 in substantial indemnity costs against the party who improperly initiated the bankruptcy, comprising fees, HST, and disbursements.

No costs were awarded to or against the trustee.

The applicant, Marmak Holdings Inc., brought a motion to compel an independent accountant (Baker Tilly Vaughan/KPMG) to produce its complete working file and underlying information related to a report prepared as part of a litigation settlement.

The report determined financial obligations between joint venture parties.

The court interpreted the original consent order, which granted access to "any and all information provided to" the accountant, and considered professional accounting standards.

The court dismissed the request for the complete file and working papers, finding them to be the accountant's work product.

However, it ordered the production of specific financial information akin to client property, such as starting trial balances, adjusting entries, accounts receivable/payable lists, and a schedule of rental income, as well as information supporting a market adjustment made in the report.

The court also ordered the parties to pay the accountant's outstanding invoice and fixed costs for the motion.

The moving party, Gaspare Caruso, brought a motion to annul the bankruptcy of 1947755 Ontario Ltd. under s. 181(1) of the Bankruptcy and Insolvency Act.

The assignment in bankruptcy had been made by John Hanna Nissan amidst a protracted dispute over corporate control.

The court found that the corporation was not insolvent at the time of the assignment, as its assets exceeded its liabilities and it could have met its obligations with a modicum of effort.

Furthermore, the court held that the assignment was an abuse of process, strategically timed to avoid scheduled examinations in the ongoing litigation.

The motion to annul the bankruptcy was granted.

The plaintiff advanced two loans to the corporate defendant for construction projects.

The first loan was secured by a collateral mortgage on the personal defendants' residence.

The plaintiff alleged the second loan was also secured by the same mortgage via an oral agreement, and sought summary judgment for outstanding amounts including a profit-sharing agreement.

The defendants argued the second advance was an unsecured joint venture investment and brought a motion to discharge the mortgage upon paying the remaining interest on the first loan into court.

The court dismissed both motions, finding that significant credibility issues regarding the nature of the second advance and the alleged oral agreement required a full trial.

This appeal concerned a motion judge's refusal to set aside a default judgment against the appellant, Amandeep Kaur, because she was six days late in paying a costs order, which was a condition for setting aside the judgment.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretion.

The court also dismissed a fresh evidence motion brought by the appellant, concluding it would not have affected the outcome.

The motion judge's decision to not vary the order at the settlement appointment was upheld, as such appointments are for correcting technical errors or avoiding a miscarriage of justice, neither of which was found to be present.

This costs endorsement followed a successful appeal where the appellants were wholly successful on the underlying motion.

The appellants sought costs of approximately $28,800 for the motion.

The court found this amount reasonable, considering the respondent had previously been awarded $34,663.03 on partial success of the same motion.

The court ordered the respondent to pay the appellants $28,800 in all-inclusive costs for the motion.