Michael R. Kestenberg

The appellant landlord appealed a decision finding that the respondent tenant, who operated a gas bar in a commercial plaza, was not required to share in the costs of maintaining common facilities.

The application judge had found the lease required payment but was amended by subsequent conduct.

The Court of Appeal dismissed the appeal and allowed the tenant's cross-appeal, holding that the lease was unambiguous and, properly interpreted, did not require the tenant to contribute to common facilities maintenance costs.

The appellant appealed an order striking its statement of claim.

The Court of Appeal agreed that the claim as framed could not proceed, but varied the order to allow the appellant leave to issue a new claim.

The appeal was allowed to that extent, with costs awarded to the respondent.

Following the dismissal of the main appeal, the successful third parties and defendants sought costs on a full indemnity basis, relying on prior releases and indemnity agreements.

The Court of Appeal found the claimed amounts excessive due to duplication of effort among the multiple respondents.

The Court fixed costs in reduced amounts, awarding a total of $72,000 across the various third parties and the defendant law firm.

The appellants commenced an action against their former lawyers for professional negligence and breach of fiduciary duty.

The lawyers brought third party claims against various entities involved in a real estate project.

The appellants and the third parties had previously settled other litigation and exchanged mutual releases containing 'no claims over' provisions.

The motions judge stayed the main action, finding it was an attempt to re-litigate settled matters and would inevitably lead to third party claims precluded by the releases.

The Court of Appeal upheld the stay, except to allow the appellants to amend their statement of claim to assert a claim for an accounting of funds that was not subject to a third party claim.

The appellants sued their former solicitor for negligence, alleging he failed to properly calculate their damages in a real estate action and negligently advised them to accept a settlement.

The trial judge dismissed the claim and awarded the solicitor substantial indemnity costs from the date of a settlement offer.

On appeal, the Court of Appeal upheld the dismissal, finding that even if the solicitor misunderstood the damages calculation, the settlement amount was a fair compromise and the appellants suffered no damages.

However, the Court allowed the costs appeal, reducing the trial costs to a partial indemnity basis, as the negligence claim was not frivolous and did not constitute misconduct.

The appellant appealed a judgment finding that her debt arose from fraud and survived her discharge from bankruptcy.

The Court of Appeal dismissed the appeal, holding that the motion judge was entitled to entertain the motion for judgment under Rule 20.01(1) and that the appellant put forward no evidence to contradict the deemed admissions of fraud and fraudulent misrepresentation under Rule 19.02(1)(a).

The appellant appealed a summary judgment granted under the simplified procedure rule.

The Court of Appeal dismissed the appeal, finding that the motion judge understood and properly applied the correct test for summary judgment.

Costs of $2,000 were awarded to the respondent.

The defendants sought leave to appeal a decision allowing the plaintiff to proceed with a tort claim for conspiracy.

The defendants argued the claim conflicted with established principles, including those in Foss v. Harbottle.

The Divisional Court denied leave to appeal, finding no conflict in principles and agreeing with the lower court that the plaintiff's claim was solely one of conspiracy, where bankruptcy was merely an element of the alleged scheme to harm her.

Costs of $5,000 were awarded to the plaintiff.

The appellant appealed a summary judgment dismissing his action for solicitor negligence.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial on the issue of damages.

The court held that even on the appellant's new theory, there was no evidence that he suffered any damages due to the negligent advice, as the theories were based on speculation and contradicted by his own affidavit.

The appellant, a sub-lessee of commercial space, appealed the dismissal of its application for relief from forfeiture under s. 21 of the Commercial Tenancies Act and s. 98 of the Courts of Justice Act.

The landlord had exercised its right under the main lease to terminate the lease after receiving a request from the tenant to assign the lease.

The Court of Appeal dismissed the appeal, holding that relief from forfeiture is only available where a landlord seeks to enforce a right of re-entry or forfeiture due to a tenant's breach or default.

Because the landlord was exercising a contractual option to terminate rather than responding to a default, the statutory relief provisions did not apply.

The appellant appealed an order staying her main action after she had signed a release in settling an earlier negligence action against one participant in a dental implant procedure.

In the subsequent action against another dentist and her former lawyer, both defendants commenced third party proceedings against the settling defendant, who then obtained a stay of both the third party proceedings and the main action as an abuse of process.

The Court of Appeal held there was no proper basis to stay the main action, particularly where any reliance on the release by non-parties would require adjudication of the privity exception discussed in Fraser River.

The appeal was allowed, the stay of the main action was set aside, and the appellant was held to her undertaking not to pursue claims that could trigger contribution or indemnity claims against the released party.