Michael A. Katzman

The moving parties brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000.

Following a trial where the plaintiff successfully proved a construction lien and defeated the defendants' counterclaim, the court determined the costs and interest payable.

The plaintiff sought substantial indemnity costs of $225,504.45, while the defendants argued for $85,000.

The court awarded the plaintiff $175,000 in substantial indemnity costs, citing the defendants' unreasonable conduct, misleading evidence, and failure to accept multiple generous offers to settle.

The court also awarded prejudgment interest at the contractual rate of 25%.

The plaintiff contractor brought a construction lien action against the defendant homeowners for unpaid work and extras on a residential renovation project.

The defendants counterclaimed for damages, alleging the plaintiff abandoned the project and performed defective work.

The court found that the defendants wrongfully repudiated the contract without justification, as the alleged deficiencies did not meet the high threshold required for termination.

The plaintiff was awarded $19,113.80 for the balance of the contract price and approved extras, less credits for unfinished work, and the defendants' counterclaim was dismissed.

This is an appeal from a judgment ordering the sale of a property under the Partition Act.

The Court of Appeal addressed a preliminary jurisdictional issue, noting that section 7 of the Partition Act stipulates appeals from orders made under the Act lie to the Divisional Court.

Despite the appellants' argument that the Court of Appeal had jurisdiction due to intertwined issues, and the respondents' lack of objection, the court held that parties cannot confer jurisdiction by agreement.

The Court found the judgment squarely fell under the Partition Act, and therefore, the Court of Appeal lacked jurisdiction.

The appeal was quashed, and the appellants were ordered to pay costs.

This appeal concerned the interpretation of a commercial lease termination provision, specifically whether proposed remodelling rendered continued possession by the tenant "impracticable." The motion judge had granted summary judgment to the landlord, finding the renovations bona fide and that the premises would cease to exist.

The Court of Appeal found that the motion judge erred in construing the termination provision too narrowly and in isolation from other lease provisions, failing to consider whether the tenant could remain in possession during renovations.

The appeal was allowed, the summary judgment and costs order were set aside, and the action was remitted to the Superior Court for continuation.

The plaintiff in a construction lien action brought a motion for leave under s. 67(2) of the Construction Act to amend his pleadings, discovery undertaking answers, and Scott Schedules to include claims for two additional extras and correct accounting errors.

The defendants opposed, arguing the amendments withdrew admissions and introduced statute-barred claims.

The Master found the original pleadings were not admissions under Rule 51.05 and the amendments merely clarified existing claims rather than introducing new causes of action.

Finding no non-compensable prejudice to the defendants, the Master granted leave for all requested amendments.

The moving parties sought an extension of time to file a notice of appeal from a lower court order.

The motion was brought six days after the deadline.

The court applied the four-factor test for granting an extension of time: intention to appeal within the period, reasonable explanation for delay, arguable merits, and lack of prejudice to the responding parties.

The court found that the moving parties had a strong contemplation of appeal, a short and reasonable delay, and arguable issues regarding beneficial interests in the property.

No prejudice was found as the original order for sale was not automatically stayed.

The extension was granted on strict terms, including deadlines for filing and perfecting the appeal, and expedited hearing.

Despite granting the extension, the court awarded costs to the responding parties due to deficiencies in the moving parties' motion materials.

The tenant plaintiffs brought an action to prevent the new landlord from terminating their commercial lease.

The landlord counterclaimed and brought a motion for summary judgment, arguing it validly exercised the 'termination for remodelling' clause in the lease.

The tenant argued the landlord acted in bad faith and was estopped from terminating early due to a prior lease renewal.

The court found the landlord properly invoked the termination clause, as the proposed demolition and remodelling would render the tenant's continued possession impracticable.

The court found no evidence of bad faith or promissory estoppel.

The action was dismissed and the counterclaim allowed.

The applicants brought a motion for leave to issue a Certificate of Pending Litigation (CPL) regarding a jointly purchased investment property.

The applicants argued that the motion had already been settled via email correspondence between counsel.

The court found that the email exchange constituted a binding settlement agreement to consent to the CPL order while reserving costs.

Alternatively, the court held that a CPL was justified on the merits, as there was a triable issue regarding the parties' respective interests in the property.

The motion was granted.

The plaintiffs sought production of banking, income tax, and municipal records from the defendants in two civil actions alleging conversion of millions of dollars in assets.

A preliminary motion by the defendants to strike the plaintiffs' extensive affidavit evidence was partially successful, but the court decided to proceed with the main production motion, ignoring irrelevant evidence.

The court granted the production order for tax records and CIBC banking records, finding them relevant to the alleged breach of fiduciary duty and fraud, and that the need for information outweighed privacy concerns.

Municipal and county records were produced by consent.

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 appellant purchased a pharmacy business from the respondents and later sued for breach of warranty after a fertility clinic located in the same building closed.

The trial judge dismissed the claim, finding that the withheld information about the clinic's closure would not reasonably have deterred the appellant from completing the transaction given its limited financial impact.

On appeal, the Divisional Court upheld the trial judge's decision, finding no palpable and overriding error in his interpretation of the commercial contract or his assessment of the evidence.

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.

The plaintiff, an 81-year-old widow, brought a motion to continue and expand a Mareva injunction and obtain further Norwich orders against her deceased husband's former bookkeeper, who allegedly misappropriated funds.

The court continued the existing Mareva injunction freezing $185,000 related to the sale of a restaurant property, finding a strong prima facie case.

However, the court dismissed the request to expand the injunction to cover the sale of a farm property due to conflicting evidence.

The court also dismissed the request for further Norwich orders, noting the litigation was no longer at the pre-action stage, and ruled that much of the plaintiff's evidence, provided via a law clerk's affidavit, was inadmissible hearsay.

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.