Matthew Urback

A non-party former solicitor brought a motion for payment of his legal fees pursuant to a contingency fee agreement (CFA) signed by his client in December 2020, or alternatively on the basis of docketed hours.

The court found the CFA void for failing to comply with numerous mandatory requirements under Ontario Regulation 195/04 under the Solicitors Act, and held that ss. 23–24 of the Solicitors Act did not permit the court to validate a non-compliant CFA.

The court awarded fees only for work performed prior to a capacity assessment completed March 16, 2021, after which the solicitor had knowledge of the client's incapacity to manage property; post-assessment docketed fees were allowed only at a 15% discount.

No disbursements were allowed as no supporting evidence was provided.

The moving party, who became the sole owner of a condominium by right of survivorship following her former partner's death, brought a motion for vacant possession and occupation rent against the deceased's 85-year-old mother.

The mother argued she had a verbal agreement with the deceased to live in the condo rent-free for life.

The court found the mother's hearsay evidence regarding the deceased's promise to be unreliable and unenforceable for lack of consideration.

The court granted the motion, ordering the mother to deliver vacant possession and pay occupation rent of $2,200 per month from the date the moving party ceased financially supporting her occupation.

The applicant sought the court's advice and direction on whether an enforceable agreement was formed for her to purchase a property from the deceased's estate, as per an option granted in the will.

The will stipulated a 60-day period to enter into an enforceable agreement.

The respondent estate trustee argued that no enforceable agreement was made within this period because a formal written offer was received after 70 days.

The court found that the exchange of email correspondence between the applicant and the respondent within the 60-day period constituted an enforceable agreement, as the will did not require a formal written document.

The court dismissed the respondent's arguments regarding lack of certainty of terms and the assertion that it was merely an agreement to agree, concluding that a meeting of the minds on all essential terms had occurred.

The applicant, claiming to be a common-law spouse, sought to prove the deceased's will in solemn form and obtain dependant's support.

The respondent, the Estate Trustee and sole beneficiary, brought a motion for vacant possession of the condominium where the applicant resided and to strike the applicant's will challenge for lack of standing.

The court granted the applicant interim possession of the condominium on terms (requiring him to pay all maintenance, insurance, and property taxes) until his dependant's support application is resolved.

However, the court dismissed the applicant's challenge to the will, finding he lacked the necessary financial interest or standing, as his potential dependant's support claim would not be affected by the will's validity.

This appeal arose from a dispute among siblings concerning the care and property of their nonagenarian mother.

The appellant challenged the application judge's decision, which declared the mother incapable, validated existing powers of attorney, and ordered the appellant to account for funds held on a resulting trust.

The appellant alleged procedural unfairness, including failure to consider his materials, denial of an adjournment, and improper dismissal of his counter-application, and sought leave to appeal the costs order.

The Court of Appeal dismissed the appeal, finding no reversible error or procedural unfairness, and denied leave to appeal costs, affirming the application judge's discretion.

The applicant, Shazad Adam, sought to be appointed as guardian of the person for his father, Shyam Mohamed Adam, who sustained a head injury and whose capacity to manage personal care was in dispute.

Shazad also sought to remove Shyam's spouse, Bibi Hasena Hanuman, and daughter, Selena Shazela Hasena, as attorneys for personal care under a 2019 Power of Attorney.

The court granted leave for the application, declared Shyam incapable of personal care, found Bibi neglectful and in breach of a court order, and removed Bibi and Selena as attorneys.

Shazad was appointed as guardian of the person for one year, subject to a revised guardianship plan.

Costs were awarded to the Public Guardian and Trustee and Shyam's s.3 counsel from Shyam's property, and partial indemnity costs were awarded to Shazad against Bibi.

The applicant sought to invalidate powers of attorney (POAs) executed by Janina Jackiewicz in 2021, which appointed the respondent, Yolanta Zawadzinski, as attorney.

The applicant also sought to confirm the validity of earlier 2019 POAs, which appointed the applicant.

The court found suspicious circumstances surrounding the 2021 POAs, including Ms. Jackiewicz's diminished capacity and the respondent's undue influence, supported by a capacity assessment report.

The court declared the 2021 POAs invalid and the 2019 POAs valid and operative.

The respondent was ordered to provide an accounting of Ms. Jackiewicz's property managed since October 2021.

This case involves a dispute among three siblings, Bill, Mary, and John, concerning the management of their 92-year-old mother, Alpida Vrantsidis', property and personal care.

Bill and Mary sought declarations regarding the validity and enforceability of the 1995 Powers of Attorney (POAs) and an order for John to account for $61,000 he received from their mother.

John, self-represented, brought a cross-application seeking to invalidate the POAs or remove Bill and Mary as attorneys.

The court dismissed John's request for an adjournment, declared the 1995 POAs valid and operative, confirmed Alpida Vrantsidis' incapacity to manage her property and personal care, and ordered John to account for the $61,000 under a resulting trust.

John's application to remove Bill and Mary or invalidate the POAs was dismissed due to lack of merit and evidence of misconduct.

The third party, a court-appointed receiver, brought a motion to stay a third party claim commenced against it by the defendants.

The defendants sought contribution and indemnity, as well as unpaid professional fees.

The court granted the motion and stayed the third party claim, finding that the defendants failed to obtain leave of the court as required by the receivership order.

The court also found that the fee claim was barred by the limitation of liability provision in the receivership order and constituted an abuse of process because it was identical to a previous action that had been dismissed for delay.

This endorsement addresses the costs arising from a dismissed application where the Applicants sought a declaration that the Respondents held their share of a property in trust.

The Respondents, as the successful party, sought costs of $27,000, while the Applicants proposed $10,000.

The court, applying Rule 57.01, found the Respondents were entitled to costs.

While the Respondents' offer to settle did not trigger Rule 49, the Applicants' conduct, including inconsistent pleadings and a narrow view of facts, justified a higher award of costs.

Considering the complexity and importance of the issues, and finding the Respondents' counsel's partial indemnity rate reasonable, the court fixed costs at $22,000 inclusive of HST and disbursements, payable by the Applicants.

The Applicants sought a declaration that the Respondents held their 50% interest in a property in trust for the Applicants, alleging no significant financial contribution from the Respondents.

The Respondents countered that they contributed most of the down payment and that rental income covered the bulk of carrying costs, while the Applicants lived rent-free.

The court dismissed the application, finding that the Respondents made significant contributions to the down payment and that the Applicants' carrying costs were largely offset by rental income and their rent-free occupancy.

The plaintiff brought a motion for summary judgment to determine the division of profits from a joint venture selling automotive parts.

The court addressed two main issues: the accounting for unsold/consigned goods and a claim for discounted shocks.

The court found that unsold goods should not be deducted from net profit, but uncollected accounts receivable should.

The court also found in favor of the plaintiff regarding the discounted shocks due to lack of explanation from the defendant.

A final amount owing in USD was converted to CAD using an average exchange rate.

The Landlord sought a declaration that a lease agreement with the Tenant (Fido Solutions Inc. and Rogers Communications Inc.) for a cellular tower site was properly terminated due to a bona fide intention to develop the property, rendering the facility's operation no longer feasible.

The Tenant disputed the termination and sought relief from forfeiture.

The court interpreted "feasible" to imply reasonableness and practicability, not impossibility, and found the Landlord's development plans, coupled with the City's conditions for parkland dedication, made the facility's continued operation unfeasible.

The court also determined that while the Landlord's acceptance of rent created an annual overholding tenancy, it was properly terminated by a second notice.

Relief from forfeiture was denied as the termination was an exercise of a contractual right, not a breach.

The Landlord's application was granted, ordering termination of the lease, removal of the facility, payment of rent, and deletion of the notice of lease from title.

Manorgate, a residential home builder, retained Kirkor, an architectural consulting firm, to provide design services for a construction project.

After the City of Toronto requested a higher density development, the parties entered into a second agreement for a larger project.

Manorgate alleged that Kirkor made a negligent misrepresentation regarding the cost per square foot of the larger project, which turned out to be significantly higher than represented, rendering the project financially unviable.

Kirkor moved for summary judgment, relying on an Entire Agreement Clause in the second agreement that precluded reliance on pre-contractual representations.

The motion judge granted summary judgment, finding that the second agreement was a separate contract and that the Entire Agreement Clause excluded the alleged misrepresentation.

Manorgate appealed, arguing the motion judge erred in giving effect to the Entire Agreement Clause.

The Court of Appeal upheld the motion judge's decision, finding no extricable error of law and affirming that the Entire Agreement Clause was broad enough to exclude the alleged misrepresentation.

The plaintiffs sued the defendant architectural firm for negligent misrepresentation regarding the construction costs of a stacked townhouse project.

The defendant brought a motion for summary judgment, arguing that the 'entire agreement' exclusion clause in their contract precluded the plaintiffs from suing based on pre-contractual representations.

The court found that the exclusion clause applied to the alleged misrepresentations and that it was not unconscionable to enforce it.

The court granted summary judgment and dismissed the action.

The defendants, Ludovico Minicucci and 2181860 Ontario Limited, brought a motion for summary judgment to dismiss an action by Windrock Associates Ltd. for a success fee of $97,350.

Windrock claimed the fee was owed under an agreement for advisory services related to the purchase of a one-half interest in real property, or alternatively, under quantum meruit and unjust enrichment.

The defendants argued that the agreement contravened the Real Estate and Business Brokers Act, 2002 (REBBA) because Windrock was not registered under the Act, and therefore, the claim for remuneration was barred.

The court found that Windrock's services were "in connection with a trade in real estate" and that the success fee, calculated as a percentage of the sale price and conditional on the transaction closing, gave Windrock a direct pecuniary interest in the sale.

Consequently, the court held that Windrock's claims under the agreement, quantum meruit, and unjust enrichment were all barred by section 9 of REBBA.

The motion for summary judgment was granted, and the action was dismissed.

The third-party Wasylko Architect Inc. brought a motion to transfer an action from Milton to London, which the plaintiff opposed.

The action concerned property damages in London due to construction work.

The court applied Rule 13.1.02(2)(b) holistically, considering factors such as where events occurred, damages were sustained, the subject matter's location, local community interest, convenience of parties and witnesses, and court facility availability.

The court found London to be a significantly better venue due to the strong factual connection to London and Milton's inability to accommodate a lengthy trial, which would cause significant delays.

The motion was granted, transferring the main action and related third-party actions to London.

The defendant sought leave to amend its statement of defence to assert adverse possession and add a counterclaim claiming ownership of disputed land.

The plaintiff argued the amendment constituted withdrawal of an admission because the original defence relied on acquiescence, which would defeat an adverse possession claim.

The court held that the original pleading did not clearly amount to an admission but assumed it might and applied the test for withdrawal of admissions.

The proposed amendment raised a triable issue, the defendant provided a reasonable explanation based on newly discovered aerial photographs supporting historical possession, and no non-compensable prejudice was established.

Leave to amend the pleading and assert the counterclaim was granted.