Michael Samuel Hebert

The plaintiff, as assignee of a bankrupt company's trustee, previously obtained summary judgment setting aside the transfer of several properties to the defendant.

A remaining issue concerned a mortgage on three of those properties, which had been discharged by a non-party numbered company controlled by the defendant prior to the bankruptcy.

The numbered company sought equitable relief to set aside the discharge and re-register the mortgage, claiming the discharge was a unilateral mistake.

The court dismissed the request, finding that the discharge was a deliberate, fully-informed decision made to clean up title, and did not meet the demanding preconditions for the equitable remedy of rectification.

The appellants, who were volunteer directors of corporations within the insolvent First Leaside group, appealed a motion judge's refusal to dismiss negligence and breach of fiduciary duty claims against them.

The plaintiffs, investors in the group, alleged the directors owed them a duty of care regarding the financial stewardship of the corporations.

The Divisional Court allowed the appeal and dismissed the actions against the appellants, holding that a director's duty of care is owed to the corporation, not to individual shareholders or investors, absent specific circumstances like fraud or independent tortious conduct, which were not pleaded.

Two appeals from a trial judgment concerning liability for environmental remediation of real property contaminated by dry cleaning solvents.

The trial judge found Fraser Hillary's Limited liable in nuisance and under section 99 of the Environmental Protection Act, awarding over $1.8 million in damages for remediation.

The action against David Hillary was dismissed.

Fraser appealed on grounds that the trial judge erred in finding it liable in nuisance and under the EPA.

The plaintiff appealed on grounds that the trial judge erred in failing to find negligence, failing to find the individual defendant liable in nuisance or negligence, and in assessing damages.

The appellate court dismissed both appeals, upholding the trial judgment.

The plaintiff, as assignee of a trustee in bankruptcy, brought a motion for summary judgment seeking to set aside the transfer of six properties from the bankrupt corporation to the spouse of its sole director.

The transfers occurred less than three months before the corporation filed a notice of intention to make a proposal in bankruptcy.

The court found that the transfers were made at undervalue between non-arm's length parties, constituted a fraudulent preference, and were fraudulent conveyances.

The court declared the transfers void and ordered them set aside, subject to a further hearing regarding a mortgage on some of the properties.

A motion by Ecojustice for leave to intervene as a friend of the court in an appeal concerning environmental contamination liability.

The underlying judgment held the defendant corporation liable in nuisance and under the Environmental Protection Act for approximately $1.8 million in damages.

Ecojustice sought to provide submissions on environmental law implications and the retrospective application of statutory provisions.

The motion judge dismissed the intervention motion, finding that Ecojustice's proposed submissions would not materially assist the court and would cause injustice to the respondents by requiring them to address new arguments without adequate notice.

The appellant appealed a summary judgment order dismissing its claims in nuisance and negligence relating to contamination of its lands.

The Court of Appeal upheld the motion judge's decision, finding that the appellant failed to produce evidence of negligence or that the respondents knew or ought to have known the facts necessary to ground an action in nuisance.

The court rejected the appellant's argument that the respondents had a duty to inspect or supervise the activities of dry-cleaning tenants on their property, and found that environmental reports obtained by the respondents did not put them on notice of contamination migrating to the appellant's lands.

The plaintiff contractor brought a motion for summary judgment against the defendant restaurant for unpaid HST amounts totaling $83,261.60 relating to emergency repair and restoration services following a fire.

The defendant opposed the motion, claiming equitable set-off for $81,711.10 in expenses it incurred to complete work abandoned by the plaintiff's subcontractor.

The court dismissed the motion, finding a genuine issue requiring a trial regarding the defendant's entitlement to equitable set-off, as the claims were closely connected and it would be unjust to grant judgment without determining the counterclaim.

Following summary judgment motions brought by nine defendants, which were largely dismissed but resulted in the narrowing of the plaintiffs' claims, the court determined the issue of costs.

The plaintiffs sought $182,725 on a partial indemnity basis, while the defendants sought $289,249.

The court found that the plaintiffs were generally successful as the actions were not dismissed, but granted the defendants a 25% credit ($72,000) for their partial success in narrowing the issues.

The plaintiffs were awarded net costs of $100,000.

Following a trial where the plaintiff was awarded over $1.8 million in damages for environmental contamination against one defendant but was unsuccessful against another, the court determined the costs payable by the unsuccessful defendant.

The court rejected the plaintiff's request for substantial indemnity costs, finding the defendant's conduct was not egregious.

The court applied a partial indemnity scale, reducing the fees by 10% to account for the successful co-defendant's involvement, and by a further 15% to reflect divided success on the issues and limited financial success compared to the amount claimed.

Total costs of $214,890.44 were awarded to the plaintiff.

The defendants (Litwacks) successfully obtained summary judgment and sought costs on a substantial indemnity basis for both the motion and the action.

The plaintiff (Sorbam Investments Ltd.) opposed the quantum and scale of costs.

The court considered the Litwacks' settlement offers, the complexity and importance of the issues, and the conduct of the parties, including the plaintiff's late submission of materials and technical objections.

While acknowledging the Litwacks' counsel's expertise, the court reduced the requested costs, particularly for out-of-town travel disbursements and excessive pre-trial time, and disallowed mediation costs.

The court fixed costs at an amount greater than partial indemnity but less than substantial indemnity, recognizing the Litwacks' settlement offers.

This addendum to reasons for decision addresses a request by the defendant, Fraser Hillary’s Limited, to present supplementary submissions concerning compensation under s. 99 of the Environmental Protection Act, citing the Court of Appeal decision in McCann v. Environmental Compensation Corp. The court declined the request, affirming the principle of finality and finding that the issue did not warrant reconsideration.

The court also clarified its prior finding that applying s. 99(2) was not retroactive and questioned the applicability of McCann to the present case.

The plaintiff property owner sued the adjacent dry cleaning business and its principal for environmental contamination caused by the migration of dry cleaning solvents (PCE/TCE) onto his lands.

The court dismissed claims in trespass, strict liability, and negligence, but found the corporate defendant liable in private nuisance and under section 99 of the Environmental Protection Act.

The individual defendant was not found liable as he did not own or control the pollutant at the time of the spills and his subsequent inaction did not cause the plaintiff's damages.

The court awarded the plaintiff $1,632,500 for remediation costs and $201,726.71 for engineering expenses.

The plaintiff, DST Consulting Engineers Inc., brought a motion to compel answers to refusals and re-attendance at examinations for discovery by the defendants, 2299910 Ontario Inc. and CanRil Corporation.

DST claimed $31,114.57 for environmental engineering assessment services.

The court found that the defendants' corporate representative, Charles Guilbault, lacked basic knowledge and provided evasive answers, frustrating the discovery process.

The motion was granted, compelling the defendants to answer most refused questions, provide particulars of alleged deficiencies, and ordering a second examination with a different representative, Terrence Guilbault.

The plaintiff sued the defendants, adjacent property owners, for environmental contamination allegedly caused by a former dry-cleaning tenant on the defendants' lands.

The defendants moved for summary judgment to dismiss the claims of nuisance, negligence, and statutory liability under the Environmental Protection Act.

The court granted the motion, finding that the defendants had no knowledge of the contamination, did not authorize the nuisance, and owed no duty of care to monitor the tenant's activities.

The statutory claim failed because the defendants did not own or control the pollutant.

The plaintiff, a former insurance producer, sued DLK Insurance Brokers Ltd. and its partners for breach of contract and unjust enrichment, claiming he was promised an ownership interest in the business.

The defendants denied any such agreement and counterclaimed for a deficit in the plaintiff's commissions and damages for soliciting clients after his resignation.

The court found the plaintiff not credible, dismissed his claims for lack of a proven contract or unjust enrichment, and also dismissed the defendants' counterclaims for the commission deficit (due to forgiveness) and lost business (due to insufficient evidence of solicitation by the plaintiff alone).

The plaintiff sued the defendants for environmental contamination of his properties caused by dry cleaning chemicals originating from the adjacent property owned by the corporate defendant.

The individual defendant, who owned another adjacent residential property, moved for summary judgment dismissing the claims against him in negligence, nuisance, trespass, and statutory liability.

The court dismissed the motion, finding that genuine issues for trial existed because determining the individual defendant's liability required a comprehensive understanding of complex and evolving expert opinions regarding the source and migration of the contaminants, which necessitated oral testimony and cross-examination at trial.

Following the dismissal of a motion for partial default judgment and partial summary judgment, the court considered the appropriate costs award.

The defendant Crown sought substantial indemnity costs including significant expert disbursements.

The court reviewed the general principles governing costs under Rule 57 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act.

It concluded that the moving party's evidence supporting an alleged equitable mortgage was deficient and unreasonable in the context of the summary judgment motion.

Substantial indemnity costs and expert disbursements were awarded to the Crown.

The defendants brought a motion for security for costs under Rule 56.01(e), arguing the plaintiff was an undischarged bankrupt bringing a frivolous claim.

The plaintiff, who had been an undischarged bankrupt for over 40 years, claimed he was owed compensation for acting as Chief Executive Officer of the defendants' business.

The court found that while the plaintiff had insufficient assets, the claim was not frivolous and vexatious as he had worked for years without a salary.

The motion for security for costs was dismissed, with no costs awarded due to the plaintiff's failure to provide full financial disclosure.

The moving party sought partial summary judgment and default judgment declaring an equitable mortgage or equitable interest over two Ottawa properties, asserting priority over liens registered by the Canada Revenue Agency for tax debts of one of the defendants.

The claim relied primarily on a written agreement and the alleged use of funds provided by the moving party in property transactions.

The court held that the agreement did not establish the essential elements of an equitable mortgage, including a clearly defined debt and intention to charge specific property as security.

Significant disputes existed regarding the source of funds and the parties’ intentions, raising credibility issues.

The court concluded that these issues required viva voce evidence at trial and dismissed the motion for summary judgment.

The appellant declarant appealed an arbitral award requiring payment of a first-year condominium budget shortfall, prejudgment interest under the corporation’s bylaws, and substantial indemnity costs.

The court held that the standard of review for a Condominium Act arbitration appeal on questions of law was correctness, and found the arbitrator erred in interpreting s. 75 as barring any challenge to the propriety or reasonableness of expenses included in the shortfall.

However, because the arbitrator had in substance considered and rejected the appellant’s objections to the disputed expenses, the result would have been the same and the award was not set aside.

The court also upheld the bylaw-based interest award and the substantial indemnity costs award, including mediation costs, and dismissed the appeal.