Michael Kleinman

The plaintiffs brought a motion seeking leave to amend their Statement of Claim and to dismiss a crossclaim brought by the Non-Settling Defendants against the Settling Defendants, following a Pierringer Agreement.

The court granted leave to amend the Statement of Claim, as it was unopposed.

However, the motion to dismiss the crossclaim was dismissed.

The court found that the Pierringer Agreement was not contingent on the dismissal of the crossclaim, and crucially, that the crossclaim was not solely for contribution and indemnity in negligence but also included claims for breach of contract, which are not negated by a Pierringer agreement.

The plaintiffs sought to settle the terms of a formal Judgment following a successful motion to enforce a settlement agreement against the defendants.

The parties disagreed on several terms, including payment dates, the declaration of a fraudulent conveyance, the lifting of a Certificate of Pending Litigation, and the exchange of mutual releases.

The court adjusted the payment dates but awarded pre-judgment interest to prevent prejudice to the plaintiffs.

The court also held that the co-defendant was bound by the declaration regarding the fraudulent conveyance, as the settlement offer was made on behalf of both defendants.

The court declined to order mutual releases, noting they were unnecessary now that the settlement terms had become a judgment.

Following a judgment enforcing an offer to settle for $550,000, the plaintiffs sought substantial indemnity costs of $36,316.46.

The plaintiffs had previously offered to settle the motion for $500,000.

The court applied Rule 49.10(1) of the Rules of Civil Procedure, finding the plaintiffs were entitled to substantial indemnity costs as they obtained a judgment more favourable than their offer.

The court fixed costs at $30,000 inclusive of disbursements and HST.

The plaintiffs brought a motion to enforce acceptance of a Rule 49 offer to settle made by the defendants in litigation arising from a failed residential real estate transaction.

The defendants argued the offer was not a Rule 49 offer, lacked an essential term, and that it would be unjust to enforce it due to new expert evidence and a change in counsel.

The court found that the offer complied with Rule 49, was capable of acceptance, and the presumption that Rule 49 applied was not rebutted.

The court also determined that it was not one of those rare cases where it would be unjust to enforce the settlement, emphasizing that changes in case strength or counsel's unawareness do not typically justify non-enforcement.

The motion was granted, and judgment was issued in favour of the plaintiffs.

The appellants (Molu's corporations) appealed a Master's decision refusing to issue a Certificate of Pending Litigation (CPL) against three properties.

The CPL was sought in the context of a counterclaim alleging fraudulent conveyance by the respondent (Hassoun) to his wife.

The Master considered both a prima facie fraud test and the three-part Grefford test, finding the appellants failed to meet the onus on either.

The appeal court upheld the Master's decision, finding no error in law or palpable and overriding error, and that the Master's factual conclusions were reasonable and entitled to deference.

The defendants brought a motion to stay the plaintiffs' proceeding in favour of arbitration, citing arbitration clauses in enrollment and license agreements.

The court dismissed the motion, finding the arbitration clauses ambiguous and contradictory with exclusive jurisdiction clauses.

The court also determined that the individual defendants and the Canadian Association of Correactology were not parties to the arbitration agreements.

Furthermore, the plaintiffs' allegations of a fraudulent scheme, misrepresentation, and breaches of the Arthur Wishart Act and Private Career Colleges Act fell outside the scope of the arbitration clauses and raised serious public policy concerns regarding the legality of the defendants' business, making a stay inappropriate and a partial stay unreasonable due to intertwined issues.

This endorsement addresses the costs arising from a dismissed motion for summary judgment.

The defendants, who were the applicants on the summary judgment motion, sought to dismiss the plaintiffs' claim and obtain judgment on their counterclaim.

The motion was dismissed on the grounds that the statement of defence and counterclaim was a nullity.

The plaintiffs, as the successful party in defending the motion, sought costs on a substantial indemnity basis and an order for costs payable personally by the defendants' solicitor.

The court awarded partial indemnity costs to the plaintiffs, fixed at $15,000, inclusive of disbursements and HST, payable by the defendants.

The request for substantial indemnity costs and personal costs against the solicitor was denied, as the court found no reprehensible conduct or dereliction of duty warranting such exceptional orders.

The appellants appealed an order dismissing their summary judgment motion.

The Court of Appeal quashed the appeal, finding that the order was interlocutory and therefore not within its jurisdiction.

The court noted that the motion judge's remarks regarding the statement of defence and counterclaim being nullities, and about spoliation, were obiter dicta explaining his refusal to exercise discretion to allow the matter to proceed despite a defendant's bankruptcy.

The defendant employer appealed a summary judgment awarding the plaintiff employee eight months' pay in lieu of notice for wrongful dismissal.

The motion judge had found the termination clause in the employment contract invalid for violating the Employment Standards Act by excluding benefits during the notice period.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the motion judge's interpretation of the contract, his assessment of the plaintiff's mitigation efforts, or his costs award.

The plaintiff's cross-appeal seeking a longer notice period based on prior service with a predecessor employer was also dismissed.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiffs' claim for rent arrears and for judgment on their counterclaim for rescission of a franchise agreement.

One of the defendants made an assignment in bankruptcy before the statement of defence and counterclaim was issued.

The court found that the counterclaim vested in the trustee in bankruptcy under section 71 of the Bankruptcy and Insolvency Act, rendering the statement of defence and counterclaim a nullity.

The court declined to cure the nullity, noting the bankrupt defendant had intentionally destroyed business records.

The motion for summary judgment was dismissed.

Following an application seeking a declaration that a franchise agreement was of no force or effect and claiming damages, the court determined that credibility issues prevented resolution on an application record and converted the proceeding into an action.

The respondents sought costs on the basis that they were the successful parties on the application.

The applicant argued that the proceeding resolved no substantive issues and that costs should be determined by the trial judge.

The court held that neither party achieved success on the application and that the merits remained to be determined at trial.

Costs were therefore left to the discretion of the trial judge.

In a family law proceeding following separation, the applicant obtained an ex parte certificate of pending litigation (CPL) against a property purchased by the respondent after separation.

The respondent argued that the CPL should be discharged because the applicant had not asserted a direct legal or equitable interest in the property.

The court considered whether claims for equalization of net family property, a vesting order under s. 9(1)(d), and preservation orders under s. 12 of the Family Law Act were sufficient to bring an interest in land into question.

Relying on Nash v. Gilbert, the court held that such claims can ground a CPL because they place an interest in land in issue within the statutory scheme of equalization and preservation of assets.

Although the CPL was discharged by consent to permit the closing of a sale to third-party purchasers, the court ordered that the entire net proceeds of sale be held in trust pending further order.

A franchisee sought rescission of a franchise agreement and damages under the Arthur Wishart Act (Franchise Disclosure), alleging inadequate disclosure by the franchisor in connection with the purchase of an existing franchise from a third party.

The franchisor argued that the statutory disclosure obligation did not apply because the grant of the franchise was not effected by or through the franchisor.

The court held that determining whether the statutory exemption applied depended on factual findings and credibility assessments regarding the franchisor’s level of involvement in the resale transaction and the adequacy of disclosure.

Given these disputed material facts, the application procedure was inappropriate.

The court therefore converted the application into an action so that the issues could be resolved at trial.

Following an interim family law motion addressing child support, use of RESP funds for a child's post-secondary expenses, and interim spousal support, the court considered written submissions on costs.

The moving party had sought table child support and higher spousal support under the Spousal Support Advisory Guidelines, while the responding party argued RESP funds should cover both educational and living expenses.

The court had largely accepted the responding party’s position regarding the use of RESP funds and ordered interim spousal support within the responding party’s proposed range.

Given the divided success of the motion and the fact that the final order was less favourable to the moving party than her settlement offer, the court determined that neither party achieved sufficient success to justify a costs award.

The Court of Appeal issued a costs endorsement following an appeal where the main corporate appellant was substantially unsuccessful, but a related corporate appellant was found not liable.

The parties failed to settle the successful corporate appellant's trial costs.

The court fixed the successful corporate appellant's trial costs at $5,000, noting its minor role at trial and the time wasted by the unsuccessful appellant.

The court declined the respondent's request to set off these costs against the trial costs awarded to him from the unsuccessful appellant.

The appellants appealed a trial judgment awarding the respondent damages for wrongful dismissal, a 5% equity interest in two corporations, an oppression remedy, exemplary damages, and damages for breach of fiduciary duty.

The Court of Appeal upheld the 10-month notice period for wrongful dismissal and the award of exemplary damages against the employer corporation due to the egregious circumstances of the termination.

The Court also upheld the respondent's entitlement to a 5% equity interest in the employer corporation and the oppression remedy.

However, the Court set aside the equity interest in the holding company, the damages for breach of fiduciary duty, and the trial judge's decision to pierce the corporate veil, finding no legal basis to hold all defendants jointly and severally liable.