Michael Simaan

The defendant insurer brought a motion for summary judgment seeking a declaration that it had no obligation to indemnify the plaintiff for a fire loss that destroyed a vacant commercial building.

The insurer argued the plaintiff breached a policy warranty requiring the building to remain 'fully secured' against unauthorized entry.

The court found the policy language unambiguous and determined that the property was not fully secured, as photographic evidence showed entire sections of the building's walls were exposed without boarding or fencing.

The court granted the summary judgment motion, concluding the insurer had no obligation to indemnify the plaintiff.

The applicant Trustee in Bankruptcy sought costs on a substantial indemnity basis after successfully holding the respondents liable for $16 million in transfers at undervalue.

The court found that the respondents engaged in reprehensible litigation conduct by failing to make financial disclosure and swearing to a fiction regarding the transfers.

The court rejected the argument of one respondent that she should pay a smaller portion, finding she acted in concert with her siblings.

The court fixed costs at $500,000 all-inclusive on a substantial indemnity basis, payable jointly and severally by all respondents.

The Trustee in bankruptcy applied to set aside transfers of approximately $16.2 million from bankrupt borrower corporations to related non-borrower corporations under s. 96 of the Bankruptcy and Insolvency Act.

The court found that the transfers were made at undervalue, rendered the bankrupts insolvent, and were made with the intent to defraud, defeat, or delay creditors.

The court rejected the respondents' unsupported claims that the transfers were prepayments of future joint venture profits.

Judgment was granted declaring the transfers void and holding the recipient corporations and the individual controlling siblings jointly and severally liable as privies to the transfers.

The garnishee appealed an order requiring it to pay $154,257.05 to the respondent creditor pursuant to r. 60.08(17) of the Rules of Civil Procedure.

The motion judge found that a registered mortgage between the garnishee and the judgment debtor constituted evidence of a legitimate debt and rejected the garnishee's sole director's testimony that the mortgage was a sham, on credibility grounds.

The Court of Appeal found no palpable and overriding error in the motion judge's credibility findings or factual conclusions and held that the equitable and discretionary nature of garnishment does not constitute an independent basis to find a debt where none exists.

The appeal was dismissed with costs.

After repeated non-compliance with production and undertaking orders, including a peremptory and then last-chance order, pleadings were struck.

The court found no basis to interfere with the motion judge’s discretionary determination and upheld the sanctions.

This costs endorsement follows the dismissal of the action by Gloria Rajkumar and the family trust against Roger Rajkumar, and the granting of the counterclaim by Rita Rajkumar against Gloria and the Simac companies.

The court awards costs to Roger and Rita, applying the principles of partial and substantial indemnity, and addresses the reasonableness of the amounts claimed, the effect of a Rule 49 offer, and the connection between the main action and the counterclaim.

The plaintiff's motion to oppose confirmation of an Associate Justice's interim report in a construction lien matter was dismissed.

The successful defendants sought costs on a substantial indemnity basis due to an unaccepted offer to settle.

The court considered the defendants' success, the offer to settle, the importance of the issue, and the scale of the underlying litigation, fixing costs at $65,000 all inclusive.

The respondents brought a motion to quash the appellant's appeal from an associate judge's reasons on a construction lien reference, arguing the Divisional Court lacked jurisdiction under s. 71 of the Construction Lien Act.

After the respondents filed their motion materials, the appellant abandoned the appeal.

The respondents sought substantial indemnity costs of $15,000, noting they had warned the appellant of the jurisdictional issue and offered to settle on a no-costs basis if the appeal was discontinued.

The court rejected the appellant's argument that the respondents' warnings were misleading and awarded the respondents costs fixed at $7,500.

The court dismissed Bellsam Contracting Ltd.'s motion to oppose confirmation of Associate Justice Robinson’s interim report in a construction lien dispute.

The decision confirms that the December 17, 2018 budget document was the governing contract, not a later, higher-priced quote.

The court found no error in the Associate Justice’s findings of fact or law, and emphasized the deference owed to such findings on review.

Bellsam’s new legal argument regarding conditional acceptance was rejected as it was not raised at trial and lacked evidentiary support.

The court dismissed the main action against Roger Rameshwar Rajkumar, finding no basis to pierce the corporate veil and impose personal liability for environmental damage to property.

The court granted the counterclaim of Rita Josomatee Rajkumar and 1526381 Ontario Inc. against Gloria Rajkumar, Superior Independent Medical Assessment Centre Ltd., and Simac Canada Inc., finding that Rita was constructively dismissed and entitled to 18 months’ notice and damages.

The decision addresses the legal standards for piercing the corporate veil, the distinction between employee and independent contractor, and the requirements for constructive dismissal and reasonable notice.

The plaintiff, Syed Bahauddin, was employed as a chef at the defendants’ restaurant for over 20 years before being dismissed without cause.

After settling a wrongful dismissal action, the defendants failed to pay the full judgment.

The plaintiff sought and was granted an order requiring the garnishee, 1436318 Ontario Ltd., to pay the outstanding amount.

The court found the mortgage between related parties to be valid and enforceable, rejected claims that it was a sham, and concluded that the equities favoured the plaintiff.

The court also awarded costs to the plaintiff.

The appellants appealed a summary judgment finding them liable for breach of an agreement of purchase and sale for a residential property.

The appellants argued that the agreement never became binding because the respondent accepted an extension offer one day late.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the appellants elected to treat the contract as ongoing by subsequently waiving conditions, paying a second deposit, and engaging in conduct consistent with a binding agreement.

The expectation damages award of $142,757.89 was upheld.

In competing applications, the parties sought interpretation of a Purchase and Sale Agreement concerning a commercial property.

Integration International Capital Limited (IICL) contended it was entitled to a $293,000 deduction from the purchase price related to replacing a landscaping Letter of Credit (LOC), and sought damages.

Helmsbridge Holdings ULC (Helmsbridge) sought specific performance to compel IICL to replace the LOC, arguing no such deduction was warranted.

The court found that the $293,000 was not an adjustment to the purchase price and that IICL's failure to replace the LOC or provide cash collateral meant it owed the full purchase price.

The court also denied specific performance to Helmsbridge, ruling that damages had not yet accrued and the remedy was not appropriate given the contingent nature of the liability.

Both applications were dismissed.

The defendants brought a motion for security for costs against the plaintiff, Neuhaus Management Ltd. (NML), seeking $64,530.91 on a partial indemnity scale.

The motion was brought under Rule 56.01(1)(d) of the Rules of Civil Procedure, alleging NML had insufficient assets in Ontario to pay costs.

The court found that the defendants met their initial onus, relying on NML's own representations and evidence from related proceedings regarding its financial difficulties.

Applying a holistic approach, the court balanced the plaintiff's right to proceed with its claim against the defendants' right to an enforceable costs award.

The court rejected arguments that the plaintiff's claim was meritless or that the defendants delayed in bringing the motion.

Ultimately, the court ordered NML to post $30,000 in security for costs, payable in three instalments, finding this amount to be fair, reasonable, and striking the necessary balance.

The defendant brought a motion for answers to refusals and for further security for costs.

The refusals issue was resolved on consent.

On the issue of security for costs, it was undisputed that the plaintiff ordinarily resides in Vietnam.

The court found that the merits of the case were neutral due to credibility issues that could not be resolved on a motion.

As the plaintiff did not allege impecuniosity or prejudice, the court ordered the plaintiff to post further security for costs in the amount of $41,835.82.

This motion concerned the plaintiffs' application for leave to amend their statement of claim.

The court addressed numerous issues with the proposed pleading, including the inclusion of evidence, argument, hyperbole, and personal attacks, contrary to Rule 25.06(1).

The defendants challenged specific footnotes and paragraphs, arguing they did not contain material facts.

The court largely agreed with the defendants, ordering the removal of many challenged sections, including those related to a prior settlement with a non-party, procedural history, and speculative concerns.

The court also addressed the plaintiffs' failure to properly blackline amendments and provide costs outlines.

Costs of the motion were awarded to the defendants.

The defendants, Guangcheng Zhu and Guru Constrarchit Ltd., brought a motion to set aside a default judgment.

The court applied the five-factor test for setting aside default judgments, finding that while the motion was brought promptly and there was an arguable defense for conversion, breach of trust, and punitive damages, the defendants failed to provide a plausible explanation for their default, having made a conscious decision not to participate in the proceedings until their bank accounts were frozen.

The court partially granted the motion, setting aside only the portion of the default judgment related to conversion, breach of trust, and punitive damages ($99,628.58), while upholding the remainder of the judgment, including damages for breach of contract and costs.

This is an appeal from a trial judgment that awarded the respondent $600,000 in damages and set aside the transfer of the appellants’ matrimonial home as a fraudulent conveyance.

The trial judge found that one appellant failed to return funds obtained from the respondent for a joint venture that never materialized and subsequently fraudulently conveyed the matrimonial home to his wife for nominal consideration to avoid a breach of trust claim.

The appellants challenged the trial judge's findings of fact regarding the amount owed, fraudulent intent, and the wife's payment of good consideration.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings, including the presence of multiple badges of fraud.

The moving party brought a motion for leave to appeal an order dated January 15, 2024.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000 all inclusive.

This summary judgment motion concerned a failed real estate purchase of a newly constructed home.

The plaintiff sought damages for breach of contract, while the defendants sought the return of their deposits.

The central dispute revolved around whether the agreement was void due to the plaintiff's late acceptance of a conditional term extension, despite a "time is of the essence" clause.

The court found that the defendants, by their subsequent actions (delivering a waiver, paying a second deposit, and later acknowledging inability to close while requesting mitigation), affirmed the contract.

The court concluded the contract was binding and anticipatorily breached by the defendants.

Damages were awarded to the plaintiff for the difference in sale price and some carrying costs, but not for all claimed expenses due to insufficient documentation.