Michael A. Katzman

The plaintiff brought a motion for summary judgment in a mortgage enforcement action seeking payment on the covenant and a writ of possession.

The defendant, despite numerous extensions, failed to file any responding materials.

The court found that the plaintiff had proven its claim that the loan was advanced, not repaid, and accounted for the amount owing.

The court granted the plaintiff a writ of possession and judgment in the amount of $130,976.23.

This appeal addressed the scope of expert disclosure required from a defendant at the discovery stage, specifically concerning foundational documents like letters of instruction, after a Rule 53.03 compliant expert report has been served but before a decision to call the expert at trial has been made.

The Master had ordered disclosure, finding an implied waiver of litigation privilege.

The Superior Court allowed the appeal, holding that serving a Rule 53.03 report does not automatically waive litigation privilege over foundational documents at the discovery stage, distinguishing cases where experts are confirmed to testify at trial.

The court emphasized that privilege continues unless there is a reasonable suspicion of improper influence or specific rules mandate disclosure.

The plaintiff, Joroga Real Estate Ltd., initiated an action against its insurer, State Farm Fire and Casualty Company, and the City of Toronto for damages resulting from a water main rupture.

State Farm brought a motion for summary judgment to dismiss the action against it or limit its coverage obligations.

The court dismissed State Farm's motion, finding that granting partial summary judgment would lead to duplicative proceedings, a risk of inconsistent factual findings with the ongoing negligence claim against the City, and would not advance the litigation as a whole in a timely, proportionate, and affordable manner.

The court emphasized that partial summary judgment should be reserved for discrete, standalone issues.

The applicant, Linda Louise Novotny, sued the respondents for breach of an agreement of purchase and sale of her property, claiming damages of $313,914.01.

The respondents failed to attend the hearing, and the application proceeded unopposed.

The court granted judgment to the applicant for the claimed damages, including the difference in purchase prices, carrying costs, and declared the $125,000 deposit forfeit.

The court found that the applicant had taken reasonable steps to mitigate her losses, and the respondents failed to prove otherwise.

This motion addressed whether the Defendants were obliged to provide "foundational information" for an expert report served to the Plaintiff, pursuant to an undertaking.

The Plaintiff sought various documents related to the expert's instructions, assumptions, facts relied upon, and materials provided, as well as prior drafts and correspondence.

The court ruled that serving an expert report at the discovery stage waives litigation privilege over the foundational information (instructions, assumptions, facts, and materials provided to the expert), making it immediately disclosable.

However, draft reports and communications between counsel and the expert remain privileged unless there are reasonable grounds to suspect interference with the expert's independence.

The Plaintiff was largely successful in obtaining the foundational information, and costs were awarded in their favour.

This is a costs endorsement following an appeal where the appellants were successful in overturning orders from the Superior Court of Justice.

The respondents had been successful on the main issue regarding whether a possible third party claim constituted a chose in action that vested in the Trustee in Bankruptcy.

However, the appellants were successful in obtaining the right to have the issue of whether they should be allowed to advance third party claims heard and determined within the section 37 application.

The court found divided success on the appeal.

Two consolidated appeals concerning whether a claim for contribution and indemnity represents property of a bankrupt that vests in the Trustee under section 71 of the Bankruptcy and Insolvency Act, and whether a bankrupt can advance such a claim when the Trustee refuses to do so and a creditor has obtained a lifting of the stay of proceedings.

The appellants sought to issue third party claims for contribution and indemnity against a co-defendant.

The motion judge dismissed the motion, finding that the claim constituted property vested in the Trustee and that the undischarged bankrupt lacked capacity to deal with it.

The Court of Appeal allowed the appeal, holding that a claim for contribution and indemnity is property under the BIA and that the motion judge erred in failing to consider relief under section 37 of the BIA.

The appellants appealed a motion judge's damages assessment following a failed real estate transaction.

The motion judge awarded DHMK Properties Inc. damages based on the difference between the agreed purchase price ($5.3 million) and the property's market value in August 2014 ($4.27 million), without accounting for the vendor's warranty obligations regarding net income or providing reasons for the valuation date selection.

The Court of Appeal found two critical errors: the failure to consider the effect of the vendor's warranty on damages calculation, and the unexplained selection of August 2014 as the valuation date rather than the scheduled closing date.

The court set aside the judgment and remitted the damages assessment to the Superior Court.

The defendants, Raphael David Junior Hassan and Carol Precious Hassan, brought a motion seeking an order for the plaintiff, Nicola Federico, to attend a further defence neurological examination and to vary a prior court order regarding timelines for defence medical assessments.

The plaintiff opposed, arguing the defendants had not met the test for a further assessment and were not compliant with the existing timeline.

The court granted the defendants' motion, finding a neurological assessment necessary for trial fairness given the plaintiff's ongoing neurological complaints and expert reports.

The court also extended the timeline for the assessment and the service of the responding neurological report, noting the plaintiffs' inconsistent stance on the original deadline.

The plaintiff purchased a pharmacy from the defendant and later sued for breach of warranty and breach of a non-competition agreement.

The plaintiff alleged the defendant failed to disclose that a nearby fertility clinic, which provided significant business, was closing.

The court dismissed this claim, finding the plaintiff overvalued the goodwill and would not reasonably have been deterred from the purchase based on the actual profit margins.

However, the court found the defendant breached the non-competition agreement by servicing customers within a 10-mile radius from a new pharmacy location, awarding $11,600 in damages.

The applicant, DHMK Properties Inc., sought summary judgment for damages following the respondents' (2296608 Ontario Inc. and Mund Real Estate Group Inc.) repudiation of a real estate purchase agreement.

The respondents had refused to close a $5.3 million transaction and subsequently sued for specific performance with an abatement, which was dismissed.

DHMK claimed $930,000 in damages, representing the difference between the contract price and the property's market value, less the forfeited deposit.

The respondents argued DHMK failed to mitigate by refusing a post-judgment offer to complete the original contract and that the damages calculation was flawed by ignoring a warranty regarding net operating income.

The court granted summary judgment to DHMK for $930,000, affirming the standard measure of damages for breach of a land sale contract and rejecting the respondents' mitigation and damages calculation arguments.

The appellants appealed an order of the Superior Court refusing to enjoin the sale of a development property under power of sale.

The appellants sought to have the court find that the property was sold in bad faith and for an undervalue.

The Court of Appeal dismissed the appeal, finding that it was not open to the court to grant the relief sought as the appeal was from the order, not the findings of the application judge.

The court noted that the appellants could pursue an improvident sale action, which had been expressly left open by the application judge.

The court upheld the costs award to the respondent.

The applicant, Fazlollah Seyedali Lavasani, sought to set aside a default judgment obtained by the respondents, Sheldon Rakowsky and Sheldon Rakowsky Professional Corporation, related to mortgage loans.

The applicant argued lack of notice and presented several defences.

The court found that the applicant had constructive notice of the action through his attorney and failed to establish any arguable defence on the merits, including claims of knowing assistance in breach of fiduciary duty, knowing receipt, deferred indefeasibility, or Family Law Act protections.

The motion to set aside the default judgment was denied, and costs were awarded to the respondents.

The plaintiffs brought a motion seeking an order extending the time for service of an amended statement of claim on several defendants, an order dispensing with or for substitute service on one defendant (Danny Grossi), and leave to amend the statement of claim to correct a misspelling.

The responding defendants opposed the extension of time for service.

The court granted the extension of time for service and leave to amend, finding no prejudice to the defendants.

The request for dispensing with or substitute service on Danny Grossi was dismissed without prejudice due to insufficient evidence regarding his current address or legal representation.

Costs were awarded to the responding defendants in the cause.

This decision addresses a request for costs following the dismissal of both a first mortgagee's application for court approval of power of sale proceedings and the mortgagor's cross-application for an injunction.

The court awarded costs to the first mortgagee, Albino Armanasco, on a substantial indemnity basis, totaling $24,189.78.

The court found that despite Armanasco's own application being deemed unnecessary, he successfully resisted the mortgagor's injunction request, which was the "substance of the dispute." The court also applied the "hold harmless" provision in the mortgage, entitling Armanasco to costs incurred in enforcing the mortgage.

The mortgagor's arguments for each party to bear their own costs were rejected, particularly due to their unsuccessful cross-application for an injunction.

Following a successful motion compelling the plaintiff to attend defence orthopaedic and psychiatric examinations, the court determined the appropriate costs award.

The defendant sought partial indemnity costs and disbursements, while the plaintiffs argued no costs or costs in the cause due to alleged procedural unfairness and conflicting authorities regarding leave requirements.

Applying the discretionary framework under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that the defendant was the successful party and entitled to costs.

The court found the requested legal fees reasonable but declined to award a disbursement related to a cancelled defence medical appointment.

Costs were fixed at $5,000 inclusive of taxes and disbursements, payable within 30 days.

The defendant insurer brought a motion seeking an order compelling the plaintiff to attend orthopaedic and psychiatric defence medical examinations under Rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act.

The plaintiffs argued that the defendant required leave under Rule 48.04(1) because it had agreed to a fixed trial date at trial scheduling court.

The court held that agreeing to a fixed trial date does not constitute consent to placing an action on a trial list within the meaning of Rule 48.04(1), and therefore leave was not required.

Applying principles of trial fairness and the need for a level evidentiary playing field, the court ordered the plaintiff to attend the requested examinations.

The plaintiff brought a motion for leave to amend its statement of claim after the action had already been set down for trial.

The proposed amendments added specific legal characterizations of alleged wrongdoing, including fraudulent or negligent misrepresentation, deceit, intentional interference with economic relations, and unjust enrichment, and also sought additional remedies such as disgorgement of profits.

The court held that Rule 26.01 of the Rules of Civil Procedure permits amendments at any stage of the proceeding unless non-compensable prejudice would result.

The amendments did not introduce new causes of action but merely particularized existing allegations and clarified available remedies arising from the same factual matrix.

As no non-compensable prejudice would arise, leave to amend was granted.

Following motions granting leave to amend statements of claim under Rules 5.04 and 26.01 of the Rules of Civil Procedure, the court addressed costs.

The plaintiffs sought substantial indemnity costs, arguing complete success and alleging procedural misconduct including late responding materials and a property transfer during the motion.

The defendants argued that the amendments constituted an indulgence and that their opposition was reasonable given the plaintiffs’ delay in bringing the motions.

The court found that the plaintiffs had delayed unnecessarily, creating additional discoverability issues that justified the defendants’ opposition.

No order for costs was made.

The moving plaintiff sought leave to amend the statement of claim to add a new corporate plaintiff, additional defendants, and new allegations relating to the alleged non‑payment of professional fees for psychological services.

The responding defendants opposed the amendments on the basis that limitation periods under the Limitations Act, 2002 had expired and that some proposed amendments raised new causes of action.

The court held that where it is unclear whether a limitation period has expired, leave to amend should generally be granted subject to the responding parties retaining the right to raise a limitation defence.

Leave was granted to add certain parties, including a law firm as a defendant, and to make most amendments, while some proposed paragraphs were refused or required revision for failing to plead material facts.

The motion was therefore partially granted with conditions.