Michael R. Kestenberg

Centurion Mortgage Capital Corporation brought a motion for determination of a mortgage priority dispute with The Guarantee Company of North America (GCNA) regarding a condominium development project.

The court found that counsel for both parties had agreed in May 2016 that Centurion's mortgage would have priority over GCNA's mortgage, except with respect to purchasers' deposits.

The court also held that GCNA was precluded by proprietary estoppel from relying on a registered postponement acknowledgment to assert priority over Centurion's mortgage.

The court declared Centurion's mortgage subordinate only with respect to deposits and ordered the deletion of the postponement acknowledgment from title.

The appellant, Elahe Vahed, appealed a summary judgment decision that found her in breach of an agreement of purchase and sale (APS) for a condominium unit.

The motion judge had ordered the return of deposits to the buyer (Mohmmad Danesh), damages payable by Vahed, and dismissed Vahed's counterclaims against Danesh, her lawyer (Michael Bury), and the realtor (Remax Crossroads Realty Inc.).

Vahed argued that there were genuine issues requiring a trial, particularly regarding the authenticity of a letter extending the closing date and whether her lawyer followed instructions.

She also sought to introduce fresh evidence and appealed the costs award in favour of Re/Max.

The appellants appealed the dismissal of their claims, asserting a reasonable apprehension of bias.

The Court of Appeal found no evidentiary basis to support this serious legal claim or the suggestion that counsel behaved inappropriately.

The appeal was dismissed, and costs were awarded against the appellants.

The defendants, having successfully obtained summary judgment dismissing the plaintiff's action, sought costs on a partial indemnity basis.

The court considered the factors under section 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

The court determined that partial indemnity costs should generally be calculated at 60% of full indemnity costs, not 66%.

After reviewing the parties' costs outlines and considering the complexity, importance of issues, and conduct of the plaintiff, the court adjusted the defendants' claimed hours and fixed costs at $80,107.16, inclusive of fees, disbursements, and taxes.

The defendants moved for summary judgment to dismiss the plaintiff's action seeking payment on two promissory notes and a declaration of entitlement to a matrimonial home based on a collateral mortgage.

The court found that the first promissory note, to which the mortgage was collateral, was paid off and materially altered without assent, rendering it and the mortgage unenforceable.

The second promissory note was found to be statute-barred under the Limitations Act.

The court granted summary judgment, dismissing the action and discharging the collateral mortgage.

The plaintiff, Mohmmad Danesh, and the defendants by counterclaim, ReMax Crossroads Realty Inc. and Michael Bury, brought motions for summary judgment in a dispute arising from a failed condominium purchase.

The vendor, Elahe Vahed, argued that a second extension to the closing date was invalid due to fabrication and non-compliance with the Statute of Frauds.

The court found that Vahed breached the agreement of purchase and sale by failing to close on the extended date, rejecting her arguments regarding fabrication and the Statute of Frauds due to solicitor's authority and part performance.

Danesh was awarded damages for out-of-pocket expenses and the return of a deposit.

Vahed's counterclaims against Danesh, ReMax, and Bury for general and punitive damages were dismissed.

The plaintiffs sued two law firms and their lawyers for professional negligence related to a commercial asset sale and subsequent arbitration.

The defendants brought summary judgment motions to dismiss the claims.

The court dismissed both motions, finding genuine issues requiring a trial against the FLPC Defendants and deeming partial summary judgment inadvisable for the SWL Defendants due to the risk of inconsistent findings and the central role of credibility issues.

The defendants, comprising law firms and solicitors, brought two summary judgment motions seeking to dismiss professional negligence claims brought against them by the plaintiffs.

The plaintiffs alleged negligence for failing to advise them of their rescission rights under the Arthur Wishart Act (Franchise Disclosure) 2000.

The court dismissed both motions, finding that there were genuine issues requiring a trial regarding the scope of the retainers, the duty of care owed by the defendants, and causation.

The court emphasized the need for a trial to assess witness credibility and the necessity of expert evidence in professional negligence claims, and declined to grant partial summary judgment due to the interconnectedness and complexity of the claims.

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.

Alexander Davidoff brought claims of malicious prosecution and intimidation against Paderewski Society Home (Niagara), Rachel Goerz, and Niagara Regional Housing (NRH), arising from a prior defamation action.

The defendants moved to strike these claims under Rule 21.01(1)(b) for disclosing no reasonable cause of action.

The court granted the motion, holding that the tort of malicious prosecution does not apply to civil proceedings, that absolute privilege bars tort claims based on communications in court proceedings, and that a lawyer owes no duty to an opposing party in litigation.

The claims were struck without leave to amend, and costs were awarded to the defendants.

The plaintiff, Alexandra Davidoff, brought claims against Paderewski Society Home (Niagara) and Rachel Goerz for malicious prosecution and intimidation, stemming from a prior defamation action.

The defendants moved under Rule 21.01(1)(b) to strike the claims for disclosing no reasonable cause of action.

The court determined that the tort of malicious prosecution does not apply to civil proceedings, that absolute privilege bars tort claims based on communications in court proceedings, and that a lawyer owes no duty to an opposing party.

Consequently, the plaintiff's claims were struck out without leave to amend, and costs were awarded to the defendants.

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, as estate trustees of the Estate of James Kay, appealed a summary judgment dismissing their action against the Hull Defendants (Hull & Hull LLP, Ian M. Hull, and Doreen Lok Yin So).

The appellants had previously agreed to a Minutes of Settlement whereby the Estate would pay the Hull Defendants a specific sum for legal fees, and had obtained court approval of this settlement.

The appellants did not seek to set aside the consent settlement approval order, acknowledging it was favorable to them with no apparent basis for setting aside on grounds of fraud or new evidence.

The Court of Appeal upheld the summary judgment, finding no error in the motion judge's decision or reasoning.

The defendants, a lawyer and his law firm, brought a summary judgment motion seeking the dismissal of a professional negligence action.

They argued the action was statute-barred, lacked expert evidence on negligence, and lacked evidence on damages.

The court dismissed the motion, finding genuine issues for trial regarding the existence and nature of the solicitor-client relationship, whether a duty of care was breached by failing to disclose environmental and archaeological reports, and the discoverability of the claim for limitation purposes.

The court also addressed the evidentiary burden on summary judgment motions, particularly concerning expert evidence in professional negligence cases, and reconciled conflicting Court of Appeal decisions.

Following a successful summary judgment for unpaid commissions, the court addressed costs submissions.

The plaintiff sought partial indemnity costs until a demand letter and substantial indemnity thereafter, totaling $77,009.05.

The defendant argued for no costs due to an alleged illegal contract or, alternatively, partial indemnity costs, claiming the plaintiff's request was excessive.

The court found no reason to deprive the successful plaintiff of costs but determined that substantial indemnity was not warranted due to the nature of the settlement offer.

Considering the factors under Rule 57.01 and the proportionality principle, the court fixed partial indemnity costs at $48,000.00, inclusive of disbursements and HST, noting the plaintiff's counsel's billed hours for correspondence and meetings were high for a single-issue matter.

The appellants purchased railway land in Niagara Falls from Canadian National Railway Company (CN) in 2008, with CN taking back a mortgage.

The appellants defaulted and CN sued.

The appellants brought a third-party action against their solicitors (McMillan LLP, Philip Thompson, and Marssa Giahi) for negligence, claiming they failed to properly advise about a Director's order under the Environmental Protection Act registered on title.

The respondents obtained summary judgment dismissing the third-party claim.

The appellants appealed, arguing the motion judge erred in applying Rule 20 principles and that genuine issues for trial existed regarding the duty of care, knowledge of the Director's order, and causation.

The Court of Appeal upheld the summary judgment, finding no negligence claim against McMillan due to lack of involvement in the final transaction, and no duty to warn Thompson and Giahi given the "as is" agreement and client's explicit instructions not to investigate environmental concerns.

The plaintiffs, as assignees of the Estate of James Kay, sought an assessment under the Solicitors Act of a $320,000 legal account paid to the Hull Defendants for services rendered to Sean Kay, pursuant to a court-approved settlement.

The Hull Defendants moved for summary judgment, arguing that the plaintiffs could not demonstrate 'special circumstances' required for an assessment after the statutory limitation period and payment, and that the action constituted an impermissible collateral attack on a prior court order.

The court granted summary judgment, finding no 'special circumstances' to justify an assessment and that the action was indeed an impermissible collateral attack on the court-approved settlement.

The Toronto-Dominion Bank and the defendants brought cross-motions for summary judgment.

The Bank sought judgment on outstanding loans and dismissal of a counterclaim.

The defendants counterclaimed for negligence, negligent misrepresentation, and breach of contract related to a Canada Small Business Financing Loan (CSBFL) and a Home Equity Line of Credit (HELOC).

The court found the Bank liable for breach of contract and negligence regarding the CSBFL for failing to fully fund the promised amount.

However, the defendants' claim concerning the HELOC's inflated appraisal was dismissed due to accord and satisfaction, as a new agreement was reached and the credit facility was continuously used.

Liability was determined, with damages to be assessed at a separate trial.

The appellants appealed a summary judgment decision dismissing their counterclaim as statute-barred.

The counterclaim arose from a dispute between parties involved in waste disposal and transportation businesses from 2011 to early 2014.

The respondents claimed over $350,000 in damages and sought a declaration that the appellants had no beneficial interest in their companies.

The appellants counterclaimed for landscaping services and a declaration of beneficial interest.

The motion judge found the counterclaim was time-barred under the Limitations Act, 2002.

The tolling period under section 11 of the Act, which suspended the limitation period during attempted third-party resolution, ended on February 3, 2014 when the respondents unequivocally terminated the resolution agreement.

The counterclaim was issued March 3, 2016, well beyond the two-year limitation period.

The Court of Appeal upheld the dismissal.

The appellant purchased land from the respondents with a vendor take-back mortgage.

The purchase agreement and mortgage provided that if the official plan was not amended to change the zoning designation to "Business Commercial" prior to June 17, 2018, the principal amount would be reduced by $600,000.

The mortgage also contained a standard charge term providing that if the lands were sold without the respondents' consent, all amounts owing plus a three-month interest bonus would immediately become due.

The appellant sold the property in February 2017 without consent and paid $600,000 into court, arguing the price reduction applied.

The application judge dismissed the application, and the Court of Appeal upheld the dismissal, finding that the plain language of the mortgage clearly stipulated the June 17, 2018 deadline and that the appellant's sale triggered the obligation to pay all monies owing including the interest bonus.