Michael A. Katzman

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.

The applicant first mortgagee sought a declaration validating a power of sale agreement and an order expunging cautions and subsequent encumbrances registered by the respondent mortgagor and second mortgagee.

The respondents brought a cross-application seeking an injunction to restrain the sale and an extension of time to redeem the mortgage.

The court dismissed the application, finding no basis to pre-emptively expunge the registrations or declare the sale valid before closing.

The court also dismissed the cross-application, holding that the mortgagor's right to redeem was extinguished upon the mortgagee entering into an unconditional agreement of purchase and sale, and the mortgagor had not tendered the arrears or proven bad faith.

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.

Following the dismissal of the appellant's motion to reinstate three Small Claims Court appeals, the respondent sought costs of $8,696.89 on a partial indemnity basis.

The appellant argued costs should be fixed at $1,200.

The Divisional Court found the respondent's requested costs excessive and disproportionate for a straightforward motion involving approximately $13,000.

Applying the factors in Rule 57.01, the court fixed costs at $2,500 all inclusive, payable by the appellant.

The appellant appealed the dismissal of his application for an assessment of his former solicitor's bills under the Solicitors Act.

The application judge found no 'special circumstances' to justify assessing the 12 paid bills, which were rendered over four years.

The Court of Appeal dismissed the appeal, finding no error in principle or unreasonable result in the application judge's conclusion that the appellant failed to rebut the presumption that payment indicated acceptance of the accounts.

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.

The applicant brought a motion to set aside the Registrar's orders dismissing her appeals from the Small Claims Court for late perfection, and sought an extension of time to file.

The court applied the four-part test from Mignacca v. Merk Frost Canada Ltd. While the applicant formed an intention to appeal, the court found she failed to provide the necessary materials or authorities to demonstrate an arguable case on the merits.

The motion to set aside the Registrar's orders was dismissed.

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 appellant challenged an order dismissing his action as an abuse of process on the basis that it constituted a collateral attack on prior mortgage proceedings.

The Court of Appeal applied the deferential standard governing appellate review of discretionary process-control orders and held that no misdirection or clearly wrong result had been shown.

The court found the appellant's real complaint concerned alleged accounting and payment issues that could have been raised during the mortgage proceedings, and noted that a statutory assessment remedy under the Mortgages Act had been initiated but adjourned.

The appeal was dismissed with costs to the respondents.

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.

The plaintiff brought a motion for leave under Rule 31.05.1 of the Rules of Civil Procedure to continue the examination for discovery of the defendant, his former lawyer, beyond the seven-hour limit.

The underlying action involved allegations of solicitor negligence regarding an improvident settlement of an accident benefits claim.

The court considered the complexity of the issues, the amount in dispute, and the interests of justice, concluding that an additional 2.5 hours of examination was warranted.

The motion was granted, and the defendant was ordered to pay partial indemnity costs.

The moving defendants sought to dismiss the plaintiff's personal injury action for failure to pay a previous costs award and failure to comply with an interlocutory order regarding undertakings.

The Master declined to dismiss the action, finding the plaintiff was impecunious.

The defendants also sought production of the plaintiff's accident benefits file from a subsequent motor vehicle accident and orders for two additional independent medical examinations.

The Master ordered the plaintiff to produce relevant documents from the subsequent accident benefits file and to attend the requested independent medical examinations with a neuropsychologist and a psychiatrist to ensure trial fairness.

The plaintiff sued her former spouse alleging that he fraudulently misappropriated life insurance proceeds payable to her following the death of their child in a motor vehicle accident.

The defendant had deposited both insurance cheques into the parties’ joint bank account and used the funds for joint expenses and investments while the plaintiff was hospitalized.

The court found the plaintiff to be an unreliable witness and accepted the defendant’s evidence that the funds were used with the plaintiff’s knowledge and consent.

The court further held that the claim was statute-barred under the Limitations Act and that a broad mutual release contained in the parties’ separation agreement extinguished any such claims.

The action and the defendant’s counterclaim were dismissed.

The moving defendants sought sanctions after the first plaintiff failed to comply with earlier court orders requiring answers to undertakings and refused questions from discovery and payment of previously ordered motion costs.

The court considered Rules 57.03 and 60.12 of the Rules of Civil Procedure governing costs enforcement and sanctions for non‑compliance with interlocutory orders.

Although some progress toward compliance occurred and the delay was partly explained by counsel’s involvement in a lengthy trial and administrative issues with payment of photocopying invoices, the court found prolonged non‑compliance with two court orders.

The court held that the defendants were justified in bringing the motion and were more affected by the delay than responsible for it.

Costs of the motion were awarded against the first plaintiff.