Michael R. Kestenberg

A case conference was held to manage multiple related proceedings.

Counsel for the plaintiffs indicated a recommendation for the plaintiffs to agree to dismissals without costs in most cases, except potentially the claim against Grant Thornton LLP Canada, which requires leave to proceed.

The court directed that a new class action issued by one of the plaintiffs be case managed together with the existing matters.

Counsel were directed to advise on dismissals or agree on a timetable for dispositive motions by a specified date.

The appellants appealed a summary judgment that held them liable under a guarantee to The Toronto-Dominion Bank.

The central issue was whether an email sent by one of the appellants constituted clear and unequivocal notice to terminate their liability under the guarantee.

The Court of Appeal found that the email, which sought confirmation of no obligation, did provide such notice.

The court distinguished the facts from a prior Supreme Court of Canada decision, noting that the bank had no doubt about the appellants' intent to terminate and did not take actions indicating a continuing relationship after the notice.

The appeal was allowed, reversing the summary judgment against the appellants.

The appellants, former litigation counsel, appealed the dismissal of their summary judgment motion based on a limitations defence in a solicitor negligence claim.

The motion judge found the claim was not discoverable until the Supreme Court of Canada refused leave to appeal, or alternatively, that commencing an action earlier was not an appropriate means to remedy it.

The Court of Appeal dismissed the appeal, affirming that the claim was not time-barred, emphasizing that the respondents reasonably relied on their counsel's advice regarding the underlying litigation's legal errors, thus delaying discoverability of the negligence claim.

The appellants appealed the motion judge’s dismissal of two actions and an application via summary judgment.

The motion judge had found the proceedings to be an abuse of process, that the claims had been previously released, and that they were barred by statutory limitation periods.

The Court of Appeal upheld the motion judge's decision, finding no errors in his assessment that there was no evidence of fraud tainting prior settlements or releases, and that the claims were indeed barred by abuse of process, releases, and limitation periods.

The court affirmed that summary judgment was an appropriate tool for addressing these threshold issues.

The appellant appealed the dismissal of her Superior Court action against Canada Post Corporation and Norton Rose Fulbright Canada, which was found to be frivolous, vexatious, and an abuse of process under Rule 2.1.01.

The Superior Court action alleged misconduct by the respondents in a Federal Court proceeding.

The Court of Appeal dismissed the appeal, affirming the application of absolute privilege for statements made in judicial proceedings and the prohibition against collateral attack, finding no arguable merit to the appellant's grounds of appeal, including a recusal request.

The appellant, a third party, appealed a motion judge's decision regarding the effect of a Pierringer Agreement on third- and fourth-party claims.

The agreement, entered into by the plaintiffs and a settling defendant, limited the plaintiffs' claims against remaining defendants to several liability.

The appellant argued this precluded the remaining defendant from pursuing its third-party claims.

The Court of Appeal dismissed the appeal, affirming that the Pierringer Agreement and the subsequent order, while limiting the plaintiffs' recovery against the remaining defendant to its several liability, did not affect the remaining defendant's ability to seek contribution from third parties.

This case concerns an abortive real estate swap transaction where the plaintiff, Goldie Malka, and defendants, Florica and Jozsef Racz, each agreed to purchase the other's property.

The agreements, scheduled to close on November 16, 2020, failed to complete, with each party blaming the other.

Malka moved for summary judgment for the return of her $170,000 deposit, while the Raczs cross-moved for summary judgment for damages of $504,240.80.

The court found that both parties fundamentally breached the agreement on the closing date and neither took steps to restore time of the essence, leading to the agreement being treated as abandoned.

Consequently, the court granted Malka's claim for the deposit and dismissed the Raczs' counterclaim, with all judgments issued without costs.

This is a costs decision following the permanent stay of the plaintiffs' main action and third-party proceedings.

The defendants, Paul Gribilas and Peter Gribilas, and the third party, J+W Foods Inc., sought costs as successful parties on dispositive motions.

The plaintiffs argued against costs, claiming a miscarriage of justice given the prior ruling that there were genuine issues for trial.

The court found no miscarriage of justice and applied the normal rule that costs follow the outcome, awarding partial indemnity costs to the Gribilas defendants and full indemnity costs to J+W Foods Inc. based on a contractual provision in a release.

The plaintiffs sued the defendant lawyer and accountant for professional negligence, alleging they failed to protect the plaintiffs' ownership interest in a corporation.

The defendants brought third-party claims against the corporation and its principals.

The defendants and third parties moved for summary judgment to stay the action, relying on a general release previously signed by the plaintiffs in a settlement with the corporation.

The court granted the motions, finding that although the defendants were not parties to the release, allowing the action to proceed would trigger third-party claims against the released parties, violating the no-claims-over provision.

The main action and third-party proceedings were permanently stayed as an abuse of process.

The appellants sought to set aside an order dismissing their motion to stay the enforcement of certain costs orders from lower court proceedings.

However, the Supreme Court of Canada subsequently dismissed their application for leave to appeal with costs, rendering the appeal before the Court of Appeal moot.

Consequently, the appeal was dismissed as moot, and costs were fixed in favour of the respondents.

The appellants appealed a summary motion judge's decision dismissing their negligence claim against a lawyer and a related costs order.

The Court of Appeal dismissed the appeal, agreeing that a lawyer cannot be held liable for negligence when conducting a discovery in accordance with a court direction, even if an unfortunate event occurs.

Leave to appeal the costs order was granted, but that appeal was also dismissed, as the costs order fell within the broad discretion of the summary motion judge.

The defendants, former legal counsel for the plaintiffs, brought a motion for summary judgment to dismiss the plaintiffs' solicitor negligence action on the basis that it was statute-barred.

The plaintiffs alleged the defendants were negligent in failing to argue the unconscionability and public policy branches of the Tercon test regarding an exclusion clause in the underlying trial against Toyota.

The court dismissed the summary judgment motion, finding that the limitation period did not begin to run until the Supreme Court of Canada denied leave to appeal in the underlying action, as the plaintiffs reasonably relied on the defendants' advice to pursue appeals and a legal proceeding was not an 'appropriate means' to seek a remedy until the appeal process was exhausted.

This appeal concerned the enforceability of two significant loans, secured by promissory notes, against the estate of Dennis Chedli and his wife, Anna Chedli.

The motion judge had dismissed the claims, finding the notes either repaid, statute-barred, or void due to material alteration without assent.

The Court of Appeal partially allowed the appeal.

It found that the first promissory note, signed by both Dennis and Anna Chedli, was not repaid as a new loan, and that there was sufficient corroborative evidence (payments and discussions) that Dennis Chedli assented to its conversion to a demand note, making it enforceable against his estate.

However, the first note remained void and unenforceable against Anna Chedli and the collateral mortgage, as she did not assent to its alteration.

The second promissory note, signed by Dennis Chedli alone, was found to be statute-barred as there was no corroborating evidence of his assent to its conversion to a demand note.

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.

Following the dismissal of three related proceedings as an abuse of process, the successful defendants sought costs.

The court found that the plaintiffs' unfounded allegations of fraud and intentional wrongdoing, combined with their attempt to relitigate matters barred by prior releases, justified an elevated costs award.

The court awarded costs on a substantial indemnity basis, fixing the total amount at $227,532.72, apportioned among the plaintiffs and the various defendants to ensure proportionality and reasonableness.

The defendants brought motions for summary judgment to dismiss three proceedings commenced by the plaintiffs regarding a long-standing family business dispute.

The plaintiffs alleged fraud, conspiracy, and misappropriation of funds dating back to the late 1990s and early 2000s.

The court granted the motions, finding that the actions were an abuse of process as they attempted to relitigate issues that had been resolved in prior litigation and settlements.

The court also held that the claims were barred by broad releases signed by the plaintiffs in 2005, 2012, and 2015, and were statute-barred under the Limitations Act, 2002 and the Trustee Act.

The Grillone Defendants brought a motion under Rule 59.06 to set aside or stay a previous order granting a Mareva injunction, alleging fraud and newly discovered facts.

They claimed the plaintiffs intentionally withheld an exhibit to an affidavit that would have undermined the affiant's credibility.

The court dismissed the motion, finding that the allegedly withheld evidence did not go to the foundation of the case and could have been obtained with due diligence.

The court awarded partial indemnity costs to the plaintiffs.

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 plaintiff, claiming to represent the Kinakwii Nation, sought to stop the enforcement of a mortgage by Farm Credit Canada by asserting Indigenous rights over the mortgaged land.

The defendants sought to dismiss the action as frivolous, vexatious, or an abuse of process under Rule 2.1.

The plaintiff requested an urgent case conference to schedule a motion to adjourn the upcoming Rule 2.1 review and summary judgment motion, citing the need to examine the Chief Justice of Canada and the Registrar of the Supreme Court of Canada.

The court refused to schedule the motion, noting that Rule 2.1 reviews are not evidentiary hearings and that the plaintiff's tactics resembled 'freeman on the land' arguments.

The court stayed the plaintiff's proposed motion pending a Rule 2.1.02 review.