Michael Simaan

The respondent, an undischarged bankrupt, brought an application for a declaration that his professional liability insurer was required to indemnify him for a class action.

The insurer brought a motion to strike the application, arguing the respondent lacked legal capacity.

The motion judge dismissed the motion.

On appeal, the Court of Appeal held that the order was final and that the right to receive an indemnity under an insurance contract is a chose in action that vests in the trustee in bankruptcy.

The appeal was allowed and the application dismissed.

The appellant and respondent entered into a business arrangement to acquire a property, incorporating a company to hold it.

The respondent provided financing, secured by promissory notes and share pledging agreements.

When a third partner defaulted, the appellant acquired his shares but failed to pay the outstanding debt associated with them.

The trial judge found the respondent was entitled to forfeit the unpaid shares, resulting in a 55% ownership stake for the respondent.

The Court of Appeal dismissed the appeal, holding that the trial judge reasonably interpreted the interconnected agreements and correctly found that the statement of claim served as sufficient written notice of forfeiture.

The appellant, acting as receiver for Wesbell Networks Inc., appealed a trial decision allowing Bell Canada to set-off approximately $2 million against amounts owed to Wesbell under a Master Supply Agreement.

Following Wesbell's bankruptcy, Bell terminated the agreement, assumed an equipment lease, and paid the remaining lease balance.

The Court of Appeal upheld the trial judge's interpretation of the agreement, confirming Bell's right to set-off the full amount.

However, the Court allowed the appeal regarding trial costs, finding the trial judge erred in denying costs to the appellant despite its overall success in obtaining a judgment exceeding $1 million.

The appellant was awarded $94,000 in trial costs, while the respondent was awarded $20,000 for the appeal.

The defendant brought a motion under s. 103(6) of the Courts of Justice Act and Rule 42.02 of the Rules of Civil Procedure seeking to discharge a certificate of pending litigation (CPL) obtained by the plaintiff on an ex parte basis.

The defendant argued the plaintiff failed to make full and fair disclosure of material facts, particularly information arising from pleadings, testimony, and evidence in a related action involving the same parties and a real estate transaction.

The court held that the alleged omissions were not material to the decision to grant the CPL and that the plaintiff had adequately disclosed the defendants’ position regarding the alleged repayment of a $600,000 deposit.

Evidence from the related litigation and a text message referencing repayment did not contradict the plaintiff’s disclosure that the defendants claimed repayment while the plaintiff did not know whether the claim was true.

The court concluded the plaintiff had met the obligation of full and fair disclosure required for ex parte CPL motions.

The appellant challenged a trial judgment in a contractual compensation dispute involving a consulting services agreement.

The Court of Appeal rejected arguments based on alleged fiduciary breach, amendment of the agreement by later invoices, acquiescence, and breach of good faith, holding that the pleaded fiduciary theory did not establish compensable loss and that no amendment to the compensation terms was proved.

The court further held that acquiescence was unavailable against a legal claim for contractual compensation, and that estoppel had neither been pleaded nor pursued.

The appeal was dismissed with costs.

Following a trial decision permitting the defendant to set off amounts paid to assume a lease, the parties could not agree on the calculation of the judgment.

The plaintiff argued the set-off should be calculated on a declining balance basis and exclude tax input credits.

The court held the defendant was entitled to set off the entire lease obligation immediately, as it relieved the plaintiff of the full liability.

The court also rejected the tax argument, finding it was an improper attempt to introduce fresh evidence after trial.

The plaintiff, a court-appointed receiver, brought an action to enforce a 2004 Settlement Agreement against the defendants.

The settlement was nominally entered into by a numbered company (129) controlled by the late Sylvia Hyde's husband, Edwin, and later by Sylvia herself.

The plaintiff sought to bind Sylvia's estate and two other companies she controlled (Glen Grove and Spendthrift) to the settlement's obligations, which included providing a mortgage and guarantee.

The court found that Sylvia had used her common control over the three corporations to secure a court-approved benefit from the settlement and could not subsequently use their separate legal personalities to avoid the obligations.

The action was allowed against Glen Grove and Spendthrift, but dismissed against Sylvia's estate as there was no basis to pierce the corporate veil.

The applicant sought to remove his sister as an Estate Trustee and force the sale of their late father's home.

The estate had remained unadministered for over five years because the sister, who was living in the home rent-free, obstructed the listing and sale process.

The court found that the sister failed to act in the best interests of the estate and removed her as an Estate Trustee pursuant to section 37 of the Trustee Act.

She was ordered to vacate the property within 30 days, and the remaining trustees were granted sole authority to list and sell the home.

Following a trial in which the plaintiff obtained judgment exceeding $543,000, the court issued supplementary reasons on costs after learning that the plaintiff had previously delivered a formal offer to settle under Rule 49.01(1) of the Rules of Civil Procedure.

The judgment obtained was more favourable than the terms of the offer.

Applying Rule 49 cost consequences, the court held that the plaintiff was entitled to substantial indemnity costs from the date of the offer to the date of judgment.

The adjustment increased the plaintiff’s cost entitlement.

The total costs award was amended accordingly.

Following a contract interpretation decision in which each party succeeded on different issues, the court considered submissions on costs.

The plaintiff succeeded on the issue of entitlement to the contractual interest rate, while the defendant succeeded on the issue of contractual setoff.

The plaintiff sought partial indemnity costs of approximately $94,000.

Applying principles governing divided success and referencing commentary from the Law of Costs, the court concluded that the parties were either equally successful or equally unsuccessful.

In the circumstances, the court declined to award costs to either party.

The plaintiff sought specific performance of an agreement of purchase and sale for a gas station property after the vendor forcibly repossessed the property while the purchaser was in possession pending final closing.

The defendant argued the agreement was unenforceable due to misidentification of the vendor, non‑payment of deposits, unpaid supplier accounts, lack of readiness to close, and absence of uniqueness of the property.

The court found the misidentification of the vendor was an inadvertent drafting error, that the plaintiff had substantially paid the required deposits and complied with the agreement, and that the vendor had no justification to retake possession.

The property was sufficiently unique to justify specific performance and the equities favoured the purchaser.

The court ordered specific performance and directed a reference to account for deposits, operating profits, and inventory values prior to closing.

Following the refusal of leave to appeal an order, the successful party sought costs.

The responding party argued that awarding costs at this stage would be unjust because issues arising from earlier procedural missteps by the plaintiff could be addressed later in the proceeding.

The court held that each litigation step attracts its own costs determination and that any additional costs arising from procedural errors could be considered when final costs are assessed.

As the plaintiff successfully resisted the motion for leave to appeal, the court fixed costs in its favour on a partial indemnity basis.

The moving party sought leave to appeal an order granting consolidation and transfer of several Small Claims Court actions to the Superior Court of Justice and dismissing a motion to strike for abuse of process.

The moving party argued that a prior consent dismissal in a related Superior Court action rendered the issues res judicata and relied on appellate authority concerning the finality of consent dismissal orders.

The court held that the prior decision did not conflict with the authorities cited and that the motions judge properly exercised discretion in considering the factors from the Supreme Court of Canada decision addressing res judicata.

The court found no reason to doubt the correctness of the earlier ruling and concluded that the circumstances were sufficiently particular to avoid concerns about undermining finality of consent dismissals.

Leave to appeal was therefore refused.

The appellant financed the respondent's purchase of equipment through a lease agreement.

The respondent sued, alleging the equipment was defective, and the appellant counterclaimed for default under the lease, moving for summary judgment.

The motion judge dismissed the appellant's motion and counterclaim, finding no contract existed due to delay in acceptance and intervening defects.

The Court of Appeal allowed the appeal, holding there were triable issues regarding whether the contract was accepted by conduct and whether the goods' condition changed, and restored the counterclaim for trial.

Following a trial in which the plaintiff was successful, the court determined the appropriate costs award.

The plaintiff sought to increase the agreed partial indemnity costs amount and to obtain substantial indemnity costs based on a Rule 49 offer under the Rules of Civil Procedure.

The defendant argued that the plaintiff’s misleading conduct justified denying the plaintiff costs and awarding costs to the defendant instead.

The court held that the parties’ agreement that $41,000 represented reasonable partial indemnity costs should be respected and declined to increase the amount.

The court also refused substantial indemnity costs due to the plaintiff’s misleading conduct but declined to award costs to the defendant.

The plaintiff consulting firm brought an action against the defendant for unpaid fees based on an hourly rate under a written agreement.

The defendant argued that the parties had orally agreed to a new flat-rate agreement, or alternatively, that the plaintiff's conduct—including concealing hourly tracking in invoices using white font—amounted to acquiescence, breach of good faith, breach of fiduciary duty, and fundamental breach.

The Superior Court of Justice found that no new agreement was reached and rejected all of the defendant's equitable and common law defences.

The court held that the original agreement remained in force and ordered the defendant to pay the outstanding invoices, as well as damages for failing to provide the required one month's written notice of termination.

The plaintiff receiver moved for summary judgment against several corporate defendants and the estate of Sylvia Hyde for breach of a settlement agreement related to a bankruptcy proof of claim.

The estate trustees brought a cross-motion for summary judgment dismissing the action.

The court found that the documentary record and conflicting affidavit evidence did not allow for a full appreciation of the issues, particularly regarding Sylvia Hyde's knowledge and participation in the settlement.

Applying the full appreciation test, the court dismissed both motions for summary judgment and directed that the matter proceed to an expedited trial.

The appellant corporation granted a guarantee and collateral mortgage to the respondent law firm to secure over $800,000 in unpaid legal fees owed by the appellant and related companies.

The appellant sought to rescind the guarantee, arguing its owner lacked authority and the law firm failed to recommend independent legal advice.

The Court of Appeal upheld the application judge's dismissal, finding that while the law firm breached the Rules of Professional Conduct by not recommending independent legal advice, the security remained enforceable because the transaction was fair, the client was sophisticated, and no advantage was taken.

The applicant, an orthodontist, was defrauded of $450,000 by his lawyer under the guise of short-term bridge financing.

The lawyer used the funds to pay off other clients, the respondents, whose trust funds he had also misappropriated.

The applicant brought an action against the respondents seeking the return of the funds, arguing they received the money knowing or being wilfully blind to the fraud.

The court found that the respondents and their lawyer had no duty to inquire about the source of the funds when they received them, as they believed it was a bona fide repayment of a loan.

The action was dismissed.

The moving party brought a motion to strike an affidavit filed by an opposing party in advance of summary judgment motions.

The affidavit was challenged on the basis that the deponent was allegedly incompetent when swearing the affidavit, refused cross‑examination, and later became unavailable.

The court held that, as a general rule, motions to strike affidavits should be heard by the judge presiding over the main motion or application because that judge must determine issues of admissibility, competency, credibility, and weight of the evidence.

Pre‑emptive motions to strike should occur only in the rarest and most extraordinary circumstances due to the inefficiency and proliferation of interlocutory motions.

The judge reserved the decision on the motion and directed that it would be determined at the commencement of the hearing of the main motions.