Micheal Simaan

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.

The plaintiffs brought a motion for leave to amend their statement of claim and to add defendants.

The parties agreed to argue two preliminary issues: whether to validate service of the original statement of claim, and whether the limitation period for certain claims was governed by the Real Property Limitations Act (RPLA) or the Limitations Act, 2002.

The court validated service on all defendants except Sundeep Gupta, who had never been served.

The court found that the claims against the Schedule C and D companies sought constructive trusts and tracing of profits into land, and were thus governed by the 10-year limitation period under the RPLA.

The claims against the Schedule E company sought damages simpliciter and were governed by the Limitations Act, 2002.

The plaintiff brought a motion to amend his statement of claim to add claims against the corporate directors for unpaid wages under the OBCA and CBCA.

One of the directors opposed the motion and brought a cross-motion to strike the existing ESA claims, arguing the claims were premature because the corporate employer had not yet been sued to judgment and execution returned unsatisfied.

The court granted the plaintiff's motion to amend, finding the claims were not clearly untenable at law and could be tried together with the corporate claims.

The court dismissed the director's cross-motion to strike, finding it was brought too late and was an improper disguised summary judgment motion.

The defendants brought a motion to transfer the action from Ottawa to Toronto.

The plaintiff, a corporation providing electricity bill consultation services, commenced the action in Ottawa for unpaid invoices.

The defendants argued that none of the parties reside in Ottawa, the agreement was executed in Toronto, and the witnesses are in Toronto or the Greater Toronto Area.

The court found that the only connection to Ottawa was the plaintiff's solicitor's office.

The court granted the motion, holding that the defendants discharged their onus to demonstrate that a transfer to Toronto was reasonable and in the interests of justice.

The appellants appealed a summary judgment holding them liable as guarantors for unpaid principal and interest under promissory notes.

The principal debtor was restricted from making payments by an inter-creditor agreement.

The appellants argued that because the principal debtor was not in default due to the inter-creditor agreement, the guarantees were not triggered.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the guarantees were triggered by the failure to pay, regardless of the inter-creditor agreement's restrictions on the principal debtor.

The plaintiffs brought a proposed class action against the developers of a cancelled pre-construction condominium project, alleging breach of contract and bad faith in invoking an early termination condition.

Following a settlement meeting and document review, the parties agreed to a without-costs discontinuance.

The court approved the consent motion to discontinue the action under section 29 of the Class Proceedings Act, 1992, finding that the discontinuance would not prejudice the putative class members, who had not yet been notified of the proceeding and could still pursue individual claims before the expiry of the limitation period.

The plaintiff brought a motion for summary judgment to enforce promissory notes and personal guarantees arising from a share purchase transaction.

The defendants argued that an Inter-Creditor Agreement with a senior lender prevented the corporate debtor from making payments, and therefore the guarantors were also shielded from liability.

The court found that while the Inter-Creditor Agreement restricted the corporate debtor from repaying the principal amounts, it did not restrict the payment of monthly interest.

Furthermore, the court held that the guarantees operated independently of the Inter-Creditor Agreement, making the guarantors jointly and severally liable for the principal amounts and unpaid interest.

The plaintiff's claim for punitive damages was dismissed.

The applicant landlord and respondent condominium corporation disputed the status of a lease for parking units after the original term expired.

The parties had signed a handwritten agreement to reduce rent and parking spaces, conditional on rezoning applications.

The court found the handwritten agreement unenforceable due to mutual breaches.

Consequently, the condominium corporation was found to be an overholding month-to-month tenant under the original lease and was ordered to pay rent arrears.

The court also held that the condominium's declaration and municipal by-laws did not compel the parties to maintain the lease in perpetuity.

The plaintiffs commenced an action for payment under a Cost Sharing Agreement 11 years after the defendant terminated its involvement.

The plaintiffs brought a motion to stay their own action in favour of arbitration, while the defendant brought a motion for summary judgment to dismiss the action as statute-barred.

The court dismissed the plaintiffs' motion, finding they could not stay their own proceeding under the Arbitration Act or the Courts of Justice Act.

The court granted the defendant's motion for summary judgment, holding that the action was statute-barred by the two-year limitation period and that the plaintiffs were estopped by conduct and laches.

Following a trial judgment where the plaintiff was awarded $76,275 in a breach of contract action originally claiming $250,000, the court determined the quantum of costs.

The plaintiff sought approximately $78,000, while the defendant argued for a 50% reduction based on the judgment falling within the simplified rules limit.

The court rejected both the plaintiff's claim for substantial indemnity and the defendant's request for a 50% reduction, but factored the late abandonment of the consequential damages claim into the award.

Costs were fixed at $55,000 all-inclusive.

The plaintiff purchased an edge banding machine from the defendant for its cabinetry business.

The machine failed to perform its more sophisticated functions, such as rounding, which the court found to be a breach of implicit terms of the contract.

However, because the plaintiff had accepted the goods under the Sale of Goods Act, the breach of condition was treated as a breach of warranty.

The court found the plaintiff failed to fully mitigate its damages by not taking reasonable steps to sell the machine.

Damages were awarded to the plaintiff for 50% of the contract price plus HST, totaling $76,275.

The applicant tenant, operating a Popeyes restaurant, sought an interlocutory injunction to restrain the respondent landlord from proceeding with site servicing and parking lot construction work related to a plaza expansion.

The tenant argued the work would breach a lease provision prohibiting construction that materially interferes with its business operations or access.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the tenant failed to establish irreparable harm, as any losses could be quantified and compensated monetarily.

The court also found the balance of convenience favoured the landlord, who had contractual obligations and faced significant delays if the work was halted.

The motion for an interlocutory injunction was dismissed.

Competing motions arose regarding funding the care of an incapable elderly woman under the Substitute Decisions Act.

One child sought to increase a line of credit secured against the incapable person’s Toronto condominium to fund ongoing care, while other siblings sought an order to sell a Florida condominium allegedly jointly owned with one sibling.

The court held that the urgent need to maintain care justified extending the line of credit, while disputes concerning ownership, expenses, occupation rent, and tax consequences relating to the Florida property required further evidentiary determination.

A bifurcated hearing was ordered to resolve those issues before determining whether the Florida property should be sold.

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.